Charles Sumner: his complete works, volume 16 (of 20)
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Title: Charles Sumner: his complete works, volume 16 (of 20)
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*** START OF THE PROJECT GUTENBERG EBOOK CHARLES SUMNER: HIS COMPLETE WORKS, VOLUME 16 (OF 20) ***
[Illustration: Engd. by A. H. Ritchie: EDWIN M. STANTON]
_Statesman Edition_ _VOL. XVI_
Charles Sumner
HIS COMPLETE WORKS
With Introduction
BY
HON. GEORGE FRISBIE HOAR
[Illustration]
BOSTON
LEE AND SHEPARD
MCM
COPYRIGHT, 1877,
BY
FRANCIS V. BALCH, EXECUTOR.
COPYRIGHT, 1900,
BY
LEE AND SHEPARD.
Statesman Edition.
LIMITED TO ONE THOUSAND COPIES.
OF WHICH THIS IS
No. 320.
Norwood Press:
NORWOOD, MASS., U.S.A.
CONTENTS OF VOLUME XVI.
PAGE
EQUAL RIGHTS, WHETHER POLITICAL OR CIVIL, BY ACT OF CONGRESS.
Letter to the Border State Convention at Baltimore, September
8, 1867 1
ARE WE A NATION? Address before the New York Young Men’s
Republican Union, at the Cooper Institute, Tuesday Evening,
November 19, 1867 3
CONSTANT DISTRUST OF THE PRESIDENT. Remarks in the Senate, on
the Final Adjournment, November 26, 1867 66
THE FOURTEENTH AMENDMENT: WITHDRAWAL OF ASSENT BY A STATE.
Remarks in the Senate, on the Resolutions of the Legislature of
Ohio rescinding its former Resolution in Ratification of the
Fourteenth Amendment, January 31, 1868 69
LOYALTY IN THE SENATE: ADMISSION OF A SENATOR. Remarks in the
Senate, on the Resolution to admit Philip F. Thomas as Senator
from Maryland, February 13, 1868 73
INTERNATIONAL COPYRIGHT. Letter to a Committee in New York, on
this Subject, February 17, 1868 86
THE IMPEACHMENT OF THE PRESIDENT. THE RIGHT OF THE PRESIDENT
OF THE SENATE PRO TEM. TO VOTE. Remarks in the Senate, on the
Question of the Competency of Mr. Wade, Senator from Ohio, then
President of the Senate pro Tem., to vote on the Impeachment of
President Johnson, March 5, 1868 88
THE CHIEF JUSTICE, PRESIDING IN THE SENATE, CANNOT RULE OR
VOTE. Opinion in the Case of the Impeachment of Andrew Johnson,
President of the United States, March 31, 1868 98
EXPULSION OF THE PRESIDENT. Opinion in the Case of the
Impeachment of Andrew Johnson, President of the United States,
May 26, 1868 134
CONSTITUTIONAL RESPONSIBILITY OF SENATORS FOR THEIR VOTES IN
CASES OF IMPEACHMENT. Resolutions in the Senate, June 3, 1868 227
VALIDITY AND NECESSITY OF FUNDAMENTAL CONDITIONS ON STATES.
Speech in the Senate, June 10, 1868 230
ELIGIBILITY OF A COLORED CITIZEN TO CONGRESS. Letter to an
Inquirer at Norfolk, Va., June 22, 1868 255
INDEPENDENCE, AND THOSE WHO SAVED THE ORIGINAL WORK. Letter on
the Soldiers’ Monument at North Weymouth, Mass., July 2, 1868 256
COLORED SENATORS,--THEIR IMPORTANCE IN SETTLING THE QUESTION OF
EQUAL RIGHTS. Letter to an Inquirer in South Carolina, July
3, 1868 257
FINANCIAL RECONSTRUCTION THROUGH PUBLIC FAITH AND SPECIE
PAYMENTS. Speech in the Senate, on the Bill to fund the
National Debt, July 11, 1868 259
NO REPRISALS ON INNOCENT PERSONS. Speech in the Senate, on the
Bill concerning the Rights of American Citizens, July 18, 1868 297
THE CHINESE EMBASSY, AND OUR RELATIONS WITH CHINA. Speech at
the Banquet by the City of Boston to the Chinese Embassy,
August 21, 1868 318
THE REBEL PARTY. Speech at the Flag-Raising of the Grant and
Colfax Club, in Ward Six, Boston, on the Evening of September
14, 1868 326
ENFRANCHISEMENT IN MISSOURI: WHY WAIT? Letter to a Citizen of
St. Louis, October 3, 1868 331
ISSUES AT THE PRESIDENTIAL ELECTION. Speech at the City Hall,
Cambridge, October 29, 1868 333
EQUAL RIGHTS, WHETHER POLITICAL OR CIVIL, BY ACT OF CONGRESS.
LETTER TO THE BORDER STATE CONVENTION AT BALTIMORE, SEPTEMBER 8, 1867.
September 12, 1867, Tennessee, Delaware, Maryland, Missouri,
Kentucky, and the District of Columbia were fully represented
in what was called “the Border State Convention,” which
assembled in the Front Street Theatre, Baltimore. The object,
in the language of the call, was “to advance the cause of
manhood suffrage, and to demand of Congress the passage of the
Sumner-Wilson bill.” The following letter from Mr. Sumner was
read to the Convention.
BOSTON, September 8, 1867.
DEAR SIR,--I shall not be able to be with you at your Convention
in Baltimore, according to the invitation with which you have
honored me. I ask you to accept my best wishes.
Congress will leave undone what it ought to do, if it fails to
provide promptly for the establishment of Equal Rights, whether
political or civil, everywhere throughout the Union. This is a
solemn duty, not to be shirked or postponed.
The idea is intolerable, that any State, under any pretension
of State Rights, can set up _a political oligarchy_ within its
borders, and then call itself a republican government. I insist
with all my soul that such a government must be rejected,
as inconsistent with the requirements of the Declaration of
Independence.
Faithfully yours,
CHARLES SUMNER.
A letter from Hon. Henry Wilson stated: “At the last session
I offered an amendment, on the 17th of July, allowing all,
without distinction of color, to vote and hold office, making
no distinction in rights or privileges.”
ARE WE A NATION?
ADDRESS BEFORE THE NEW YORK YOUNG MEN’S REPUBLICAN UNION, AT THE COOPER
INSTITUTE, TUESDAY EVENING, NOVEMBER 19, 1867.
And I will make them one nation in the land upon the mountains
of Israel, … and they shall be no more two nations.… Neither
shall they defile themselves any more with their idols,
nor with their detestable things, nor with any of their
transgressions.--EZEKIEL, xxxvii. 22, 23.
* * * * *
In these days their union is so entire and perfect that they
are not only joined together in bonds of friendship and
alliance, but even make use of the same laws, the same weights,
coins, and measures, the same magistrates, counsellors, and
judges: so that the inhabitants of this whole tract of Greece
seem in all respects to form but one single city, except only
that they are not enclosed within the circuit of the same
walls; in every other point, both through the whole republic
and in every separate state, we find the most exact resemblance
and conformity.--POLYBIUS, _General History_, tr. Hampton,
(London, 1756,) Vol. I. pp. 147, 148.
* * * * *
We represent the people,--we are a Nation. To vote by States
will keep up colonial distinctions.… The more a man aims at
serving America, the more he serves his colony. I am not
pleading the cause of Pennsylvania; I consider myself a
citizen of America.--BENJAMIN RUSH, _Speech in the Continental
Congress, July, 1776_: Bancroft, History of the United States,
Vol. IX. p. 54.
* * * * *
It is my first wish to see the United States assume and merit
the character of _one great Nation_, whose territory is divided
into different States merely for more convenient government
and the more easy and prompt administration of justice,--just
as our several States are divided into counties and townships
for the like purposes. Until this be done, the chain which
holds us together will be too feeble to bear much opposition
or exertion, and we shall be daily mortified by seeing the
links of it giving way and calling for repair, one after
another.--JOHN JAY, _Letter to John Lowell, May 10, 1785_:
Life, by William Jay, Vol. I. p. 190.
* * * * *
He took this occasion to repeat, that, notwithstanding his
solicitude to establish a National Government, he never
would agree to abolish the State Governments or render them
absolutely insignificant. They were as necessary as the General
Government, and he would be equally careful to preserve
them.--GEORGE MASON, _Speech in the Constitutional Convention,
June 20, 1787_: Debates, Madison Papers, Vol. II. pp. 914, 915.
* * * * *
Whether the Constitution be good or bad, the present clause
clearly discovers that it is a National Government, and
no longer a Confederation: I mean that clause which gives
the first hint of the General Government laying direct
taxes.--GEORGE MASON, _Speech in the Virginia Convention to
ratify the Constitution, June 4, 1788_: Elliot’s Debates, (2d
edit.,) Vol. III. p. 29.
* * * * *
The Declaration of Independence having provided for the
_national_ character and the _national_ powers, it remained
in some mode to provide for the character and powers of the
States individually, as a consequence of the dissolution of
the colonial system. Accordingly the people of each State set
themselves to work, under a recommendation from Congress, to
erect a local government for themselves; but in no instance did
the people of any State attempt to incorporate into their local
system any of those attributes of national authority which the
Declaration of Independence had asserted in favor of the United
States.--ALEXANDER JAMES DALLAS, _Argument in the Case of
Michael Bright and others, in the Circuit Court of the United
States, April 28, 1809_: Life and Writings, p. 104.
* * * * *
Hence, while the sovereignty resides inherently and inalienably
in the people, it is a perversion of language to denominate
the State, as a body politic or government, sovereign and
independent.--_Ibid._, p. 100.
* * * * *
America has chosen to be, in many respects and to many
purposes, a Nation; and for all these purposes her government
is complete, to all these objects it is competent. The people
have declared, that, in the exercise of all powers given for
these objects, it is supreme. It can, then, in effecting these
objects, legitimately control all individuals or governments
within the American territory. The Constitution and laws of a
State, so far as they are repugnant to the Constitution and
laws of the United States, are absolutely void. These States
are constituent parts of the United States; they are members
of one great empire.--CHIEF JUSTICE MARSHALL, _Cohens_ v.
_Virginia_, Wheaton, Rep., Vol. VI. p. 414.
* * * * *
This Address was prepared as a lecture, and was delivered on
a lecture-tour reaching as far as Milwaukee, Dubuque, and St.
Louis. On its delivery in New York, Dr. Francis Lieber was in
the chair. It became the subject of various local notice and
discussion.
The idea of Nationality had prevailed with Mr. Sumner from the
beginning of his public life. In his appeal to Mr. Webster
before the Whig State Convention, as early as September 23,
1846, while calling on the eminent Senator and orator to become
_Defender of Humanity_, he recognized his received title,
_Defender of the Constitution_, as justly earned by the vigor,
argumentation, and eloquence with which he had “upheld the
Union and that interpretation of the Constitution which makes
us a Nation.”[1] And from that time he had always insisted that
we were a Nation,--believing, that, while many things were
justly left to local government, for which the States are the
natural organs, yet the great principles of Unity and Human
Rights should be placed under central guardianship, so as to
be everywhere the same; and this he considered the essence of
the Nation.--The word “Federal” Mr. Sumner habitually rejected
for “National.” Courts and officers under the United States
Government he called “National.”
ADDRESS.
MR. PRESIDENT,--At the close of a bloody Rebellion, instigated by
hostility to the sacred principles of the Declaration of Independence,
and inaugurated in the name of State Rights, it becomes us now to do
our best that these sacred principles shall not again be called in
question, and that State Rights shall not again disturb the national
repose. One terrible war is more than enough; and since, after
struggle, peril, and sacrifice, where every household has been a
sufferer, we are at last victorious, it is not too much to insist on
all possible safeguards for the future. The whole case must be settled
now. The constant duel between the Nation and the States must cease.
The National Unity must be assured,--in the only way which is practical
and honest,--through the principles declared by our fathers and inwoven
into the national life.
In one word, the Declaration of Independence must be recognized as
a fundamental law, and State Rights, in all their denationalizing
pretensions, must be trampled out forever, to the end that we may be,
in reality as in name, a Nation.
* * * * *
Are we a Nation? Such is the question I now propose, believing that
the whole case is involved in the answer. Are we a Nation? Then must
we have that essential, indestructible unity belonging to a Nation,
with all those central, pervasive, impartial powers which minister to
the national life; then must we have that central, necessary authority
inherent in just government, to protect the citizen in all the rights
of citizenship; and then must we have that other central, inalienable
prerogative of providing for all the promises solemnly made when we
first claimed our place as a Nation.
* * * * *
Words are sometimes things; and I cannot doubt that our country would
gain in strength and our people in comprehensive patriotism, if we
discarded language which in itself implies certain weakness and
possible disunion. Pardon me, if I confess that I have never reconciled
myself to the use of the word “Federal” instead of “National.” To my
mind, our government is not Federal, but National; our Constitution is
not Federal, but National; our courts under the Constitution are not
Federal, but National; our army is not Federal, but National. There
is one instance where this misnomer does not occur. The debt of our
country is always _National_,--perhaps because this term promises in
advance additional security to the anxious creditor. “Liberty” and
“Equality” are more than dollars and cents; they should be National
also, and enjoy the same security.
During the imbecility of the Confederation, which was nothing but
a league or _fœdus_, the government was naturally called Federal.
This was its proper designation. Any other would have been out of
place, although even then Washington liked to speak of the Nation. In
summoning the Convention which framed the National Constitution, the
States all spoke of the existing government as “Federal.” But after
the adoption of the National Constitution, completing our organization
as one people, the designation was inappropriate. It should have been
changed. If not then, it must be now. New capacities require a new
name. The word Saviour did not originally exist in the Latin; but St.
Augustine, who wrote in this language, boldly used it, saying there was
no occasion for it until after the Saviour was born.[2] If among us in
the earlier day there was no occasion for the word Nation, there is
now. A Nation is born.
* * * * *
The word Nation is suggestive beyond any definition of the dictionary.
It awakens an echo second only to that of Country. It is a word of
unity and power. It brings to mind intelligent masses enjoying the
advantage of organization, for whom there is a Law of Nations,--as
there is a Law of Nature,--each nation being a unit. Sometimes uttered
vaguely, it is simply an intensive, as in the familiar exaggeration,
“only a _nation_ louder”; but even here the word furnishes a measure of
vastness. In ordinary usage, it implies an aggregation of human beings
who have reached such advanced stage of political development that
they are no longer a tribe of Nomads, like our Indians,--no longer a
mere colony, city, principality, or state,--but they are one people,
throbbing with a common life, occupying a common territory, rejoicing
in a common history, sharing in common trials, and securing to each the
protection of the common power. We have heard, also, that a Nation is
a people with the consciousness of Human Rights. Well spoke Louis the
Fifteenth of France, when this word first resounded in his ears: “What
means it? I am king; is there any king but me?” The monarch did not
know that the Nation was more than king, all of which his successor
learned among the earliest lessons of the Revolution, as this word
became the inspiration and voice of France.
The ancients had but one word for State and City; nor did they use the
word Nation as it is latterly used. Derived from the Latin _nascor_ and
_natus_, signifying “to be born” and “being born,” it was originally
applied to a race or people of common descent and language, but seems
to have had no reference to a common government. In the latter sense
it is modern. Originally ethnological, it is now political. The French
Communists have popularized the kindred word “Solidarity,” denoting a
community of interests, which is an element of nationality. There is
the solidarity of nations together, and also the solidarity of a people
constituting one nation, being those who, according to a familiar
phrase, are “all in one bottom.”
England early became a Nation; and this word seems to have assumed
there a corresponding meaning. Sir Walter Raleigh, courtier of Queen
Elizabeth, and victim of James the First, who was a master of our
language, in speaking of the people of England, calls them “our
Nation.”[3] John Milton was filled with the same sentiment, when,
addressing England and Scotland, he says: “Go on, both hand in hand,
_O Nations_, never to be disunited! be the praise and the heroic song
of all posterity!”[4] In the time of Charles the Second, Sir William
Temple furnished a precise definition, which foreshadows the definition
of our day. According to this accomplished writer and diplomatist, a
Nation was “a great number of families, derived from the same blood,
born in the same country, and _living under the same government and
civil constitutions_.”[5] Here is the political element. Johnson, in
his Dictionary, follows Temple substantially, calling it “a people
distinguished from another people, generally by their language,
original, _or government_.” Our own Webster, the lexicographer, calls
it “the body of inhabitants of a country _united under the same
government_”; Worcester, “a people born in the same country and _living
under the same government_”; the French Dictionary of the Academy, “the
totality of persons born or naturalized in a country and _living under
the same government_.”[6] Of these definitions, those of Webster and
the French Academy are the best; and of the two, that of Webster the
most compact.
These definitions all end in the idea of unity under one government.
They contemplate political unity, rather than unity of blood or
language. Undoubted nations exist without the latter. Various accents
of speech and various types of manhood, with the great distinction of
color, which we encounter daily, show that there is no such unity here.
But this is not required. If the inhabitants are of one blood and one
language, the unity is more complete; but the essential condition is
one sovereignty, involving, of course, one citizenship. In this sense
Gibbon employs the word, when, describing the people of Italy,--all of
whom were recognized as Roman citizens,--he says: “From the foot of
the Alps to the extremity of Calabria, all the natives of Italy were
born citizens of Rome. Their partial distinctions were obliterated, and
they insensibly _coalesced into one great Nation_, united by language,
manners, and _civil institutions_, and equal to the weight of a
powerful empire.”[7] Here dominion proceeding originally from conquest
is consecrated by concession of citizenship, and the great historian
hails the coalesced people as Nation.
One of our ablest writers of History and Constitutional Law, Professor
Lieber, of Columbia College, New York, has discussed this question with
learning and power.[8] According to this eminent authority, Nation is
something more than a word. It denotes that polity which is the normal
type of government at the present advanced stage of civilization,
and to which all people tend just in proportion to enlightenment and
enfranchisement. The learned Professor does not hesitate to say that
such a polity is naturally dedicated to the maintenance of all the
rights of the citizen as its practical end and object. It is easy to
see that the Nation, thus defined, must possess elements of perpetuity.
It is not a quicksand, or mere agglomeration of particles, liable to
disappear, but a solid, infrangible crystallization, against which
winds and rains beat in vain.
* * * * *
Opposed to this prevailing tendency is the earlier propensity to local
sovereignty, which is so gratifying to petty pride and ambition. This
propensity, assuming various forms in different ages and countries,
according to the degree of development, has always been a species
of egotism. When the barbarous islanders of the Pacific imagined
themselves the whole world, they furnished an illustration of this
egotism in its primitive form. Its latest manifestation has been
in State pretensions. But here a distinction must be observed. For
purposes of local self-government, and to secure its educational
and political blessings, the States are of unquestioned value. This
is their true function, to be praised and vindicated always. But
_local sovereignty_, whether in the name of State or prince, is out
of place and incongruous under a government truly national. It is
entirely inconsistent with the idea of Nation. Perhaps its essential
absurdity in such a government was never better illustrated than by
the homely apologue of the ancient Roman,[9] which so wrought upon
the secessionists of his day that they at once returned to their
allegiance. According to this successful orator, the different members
of the human body once murmured against the “belly,” which was pictured
very much as our National Government has been, and they severally
refused all further coöperation. The hands would not carry food to
the mouth; nor would the mouth receive it, if carried; nor would the
teeth perform their office. The rebellion began; but each member soon
found that its own welfare was bound up inseparably with the rest, and
especially that in weakening the “belly” it weakened every part. Such
is the discord of State pretensions. How unlike that unity of which
the human form, with heaven-directed countenance, is the perfect type,
where every part has its function, and all are in obedience to the
divine mandate which created man in the image of God! And such is the
Nation.
* * * * *
Would you know the incalculable mischief of State pretensions? The
American continent furnishes three different examples, each worthy
of extended contemplation. There are, first, our Indians, aborigines
of the soil, split into tribes, possessing a barbarous independence,
but through this perverse influence kept in constant strife, with
small chance of improvement. Each chief is a representative of State
pretensions. Turning the back upon union, they turn the back upon
civilization itself. There is, next, our neighbor republic, Mexico,
where Nature is bountiful in vain, and climate lends an unavailing
charm, while twenty-three States, unwilling to recognize the national
power, set up their disorganizing pretensions, and chaos becomes
chronic. The story is full of darkness and tragedy. The other instance
is our own, where sacrifices of all kinds, public and private, rise
up in blood before us. Civil war, wasted treasure, debt, wounds, and
death are the witnesses. With wailing voice all these cry out against
the deadly enemy lurking in State pretensions. But this wail is heard
from the beginning of history, saddening its pages from generation to
generation.
In ancient times the City-State was the highest type, as in Greece,
where every city was a State, proud of its miniature sovereignty. The
natural consequences ensued. Alliances, leagues, and confederations
were ineffectual against State pretensions. The parts failed to
recognize the whole and its natural supremacy. Amidst all the triumphs
of genius and the splendors of art, there was no national life, and
Greece died. From her venerable sepulchre, with ever-burning funeral
lamps, where was buried so much of mortal beauty, there is a constant
voice of warning, which sounds across continent and ocean, echoing
“Beware!”
Rome also was a City-State. If it assumed at any time the national
form, it was only because the conquering republic took to itself all
other communities and melted them in its fiery crucible. But this
dominion was of force, ending in universal empire, where the consent
of the governed was of little account. How incalculably different from
a well-ordered Nation, where all is natural, and the people are knit
together in self-imposed bonds!
Then came the colossal power of Charlemagne, under whom peoples and
provinces were accumulated into one incongruous mass. Here again was
universal empire, but there was no Nation.
Legend and song have depicted the paladins that surrounded Charlemagne,
fighting his battles and constituting his court. They were the
beginning of that Feudal System which was the next form that Europe
assumed. The whole country was parcelled among chieftains under the
various names of Duke, Count, and Baron, each of whom held a district,
great or small, where, asserting a local sovereignty, he revelled in
State pretensions; and yet they all professed a common allegiance.
Guizot was the first to remark that Feudalism, taken as a whole, was
a confederation, which he boldly likens to what he calls the federal
system of the United States. It is true that Feudalism was essentially
federal, where each principality exercised a disturbing influence,
and unity was impossible; but I utterly deny that our country can
fall into any such category, unless it succumbs at last to the dogma
of State pretensions, which was the essential element of the feudal
confederation.
Feudalism was not a government; it was only a system. During its
prevalence, the Nation was unknown. Wherever its influence subsided,
the Nation began to appear; and now, wherever its influence still
lingers on earth, there the yearnings for national life, instinctive in
the popular heart, are for the time suppressed.
Curiously enough, Sweden and Hungary were not brought within the sphere
of Feudalism, and these two outlying lands, left free to natural
impulses, revealed themselves at an early day as Nations. When the
European continent was weakened by anarchy, they were already strong in
national life, with an influence beyond their population or means.
Feudalism has left its traces in England; but it was never sufficiently
strong in that sea-girt land to resist the natural tendencies to unity,
partly from its insular position, and partly from the character of
its people. At an early day the seven-headed Heptarchy was changed
into one kingdom; but a transformation not less important occurred
when the feudal lords were absorbed into the government, of which they
became a component part, and the people were represented in a central
Parliament, which legislated for the whole country, with Magna Charta
as the supreme law. Then was England a Nation; and just in proportion
as the national life increased has her sway been felt in the world.
France was less prompt to undergo this change, for Feudalism found
here its favorite home. That compact country, so formed for unity, was
the victim of State pretensions. It was divided and subdivided. North
and South, speaking the same language, were separated by a difference
of dialect. Then came the great provinces, Normandy, Brittany,
Burgundy, Provence, Languedoc, and Gascony, with constant menace of
resistance and nullification, while smaller fiefs shared the prevailing
turbulence. A French barony was an “autonomic government,” with a
moated town, in contrast with an English barony, which was merged in
the Kingdom. Slowly these denationalizing pretensions were subdued; but
at last the flag of the French monarchy,--the most beautiful invention
of heraldry,--with lilies of gold on a field of azure, and angelic
supporters, waved over a united people. From that time France has been
a Nation, filled with a common life, burning with a common patriotism,
and quickened by a common glory. To an Arab chieftain, who, in barbaric
simplicity, asked the number of tribes there, a Frenchman promptly
replied, “We are all one tribe.”
Spain also triumphed over State pretensions. The Moors were driven from
Granada. Castile and Aragon were united under Ferdinand and Isabella.
Feudalism was overcome. Strong in the national unity, her kings became
lords of the earth. The name of Spain was exalted, and her language was
carried to the uttermost parts of the sea. For her Columbus sailed;
for her Cortes and Pizarro conquered. But these adventurous spirits
could have done little, had they not been filled with the exuberance of
her national life.
Italy has been less happy. The pretensions of Feudalism here commingled
with the pretensions of City-States. Petty princes and petty republics,
restless with local sovereignty, constituted together a perpetual
discord. That beauty which one of her poets calls a “fatal gift”
tempted the foreigner. Disunited Italy became an easy prey. Genius
strove in the bitterness of despair, while this exquisite land, where
History adds to the charms of Nature and gilds anew the golden fields,
sank at last to become, in the audacious phrase of Napoleon, simply a
geographical name. A checker-board of separate States, it was little
else. It had a place on the map, as in the memory, but no place in the
present. It performed no national part. It did nothing for imitation
or remembrance. Thus it continued, a fearful example to mankind.
Meanwhile the sentiment of Nationality began to stir. At last it broke
forth like the pent-up lava from its own Vesuvius, and Garibaldi was
its conductor. Separate States, renouncing local pretensions, became
greater still as parts of the great whole, and Italy stood forth a
Nation, to testify against the intolerable jargon of State pretensions.
All hail to this heroic revival, where dissevered parts have been
brought together, as were those of the ancient Deity, and shaped anew
into a form of beauty and power!
But Germany is the most instructive example. Here, from generation to
generation, have State pretensions triumphed, perversely postponing
that National Unity which is the longing of the German heart.
Stretching from the Baltic to the Adriatic and the Alps, penetrated by
great rivers, possessing an harmonious expanse of territory, speaking
one language, filled with the same intellectual life, and enjoying
a common name, which has been historic from the days of Tacitus,
Germany, like France, seems formed for unity. Martin Luther addressed
one of his grand letters _An die Deutsche Nation_ (To the German
Nation); and these words are always touching to Germans as the image
of what they desire so much. Thus far the great longing has failed.
Even the Empire, where all were gathered under one imperial head,
was only a variegated patchwork of States. Feudalism, in its most
extravagant pretensions, still prevails. Confederation takes the place
of Nationality, and this vast country, with all its elements of unity,
is only a discordant conglomerate. North and South are inharmonious,
Prussia and Austria representing two opposite sections. Other divisions
have been more perplexing. Not to speak of Circles, or groups, each
with a diet of its own, which once existed, I mention simply the later
division into thirty-nine States, differing in government and in
extent, being monarchies, principalities, dukedoms, and free cities,
all proportionately represented in a general council or diet, and
proportionately bound to the common defence, but every one filled
with State egotism. So complete was this disjunction, and such its
intolerable pretensions, that internal commerce, the life-blood of the
Nation, was strangled. Down to a recent day, each diminutive state had
its own custom-house, where the traveller was compelled to exhibit his
passport and submit to local levies. This universal obstruction slowly
yielded to a Zollverein, or Customs-Union, under which these barriers
were obliterated and customs were collected on the external frontiers.
Here was the first triumph of Unity. Meanwhile the perpetual strife
between Prussia and Austria broke out in terrible battle. Prussia has
succeeded in absorbing several of the smaller states. But the darling
passion of the German heart is still unsatisfied. Not in fact, but in
aspiration only, is Germany one nation. Patriot Poetry takes up the
voice, and, scorning the claims of individual states, principalities,
and cities, scorning also the larger claims of Prussia and Austria
alike, exclaims, in the spirit of a true Nationality:--
“That is the German’s fatherland
Where Germans all as brothers glow;
That is the land;
All Germany’s thy fatherland.”
God grant that the day may soon dawn when all Germany shall be one!
* * * * *
Confessing the necessity of a true national life, we have considered
what is a Nation, and how the word itself implies indestructible unity
under one government with common rights of citizenship; and then we
have seen how this idea has grown with the growth of civilization,
slowly conquering the adverse pretensions of States, until at last even
Italy became one nation, while Germany was left still struggling for
the same victory. And now I come again to the question with which I
began.
Are we a Nation? Surely we are not a City-State, like Athens and early
Rome in antiquity, or like Florence and Frankfort in modern times;
nor, whatever the extent of our territory, are we an Empire cemented
by conquest, like that of later Rome, or like that of Charlemagne; nor
are we a Feudal Confederation, with territory parcelled among local
pretenders; nor are we a Confederation in any just sense. From the
first settlement of the country down to the present time, whether in
the long annals of the Colonies or since the Colonies were changed into
States, there has been but one authentic voice: now breaking forth in
organized effort for Union; now swelling in that majestic utterance of
a united people, the Declaration of Independence; now sounding in the
scarcely less majestic utterance of the same united people, the opening
words of the National Constitution; and then again leaping from the
hearts of patriots. All these, at different times and in various tones,
testify that we are one people, under one sovereignty, vitalized and
elevated by a dedication to Human Rights.
There is a distinction for a long time recognized by German writers,
and denoted by the opposite terms _Staatenbund_ and _Bundesstaat_,--the
former being “a league of states,” and the latter “a state formed by a
league.” In the former the separate states are visibly distinct; in the
latter they are lost in unity. And such is the plain condition of our
republic.
Of the present thirty-seven States only thirteen were originally
Colonies; three are offsets from some of these; all the rest have been
founded on territory which was the common property of the people of
the United States, and at their own request they have been received
into the fellowship of government and citizenship. If on any ground
one of the original Thirteen might renounce its obligations to the
Union, it would not follow that one of the new States, occupying the
common territory, could do likewise. It is little short of madness to
attribute such a denationalizing prerogative to any State, whether
new or old. For better or worse, we are all bound together in one
indissoluble bond. The National Union is a knot which in an evil hour
the sword may cut, but which no mortal power can unloose without the
common consent.
* * * * *
From the earliest landing, this knot has been tying tighter and
tighter. Two ways it promptly showed itself: first, in the common claim
of the rights of British subjects; and, secondly, in the common rights
of citizenship coextensive with the Colonies, and the consequent rights
of every Colony in every other Colony.
The Colonies were settled separately, under different names, and
each had its own local government. But no local government in any
Colony was allowed to restrict the rights, liberties, and immunities
of British subjects. This was often declared. Above all charters or
local laws were the imprescriptible safeguards of Magna Charta, which
were common to all the inhabitants. On one occasion, the Legislature
of Massachusetts reminded the king’s governor of these safeguards in
memorable words: “We hope we may without offence put your Excellency
in mind of that most grievous sentence of excommunication solemnly
denounced by the Church in the name of the sacred Trinity, in the
presence of King Henry the Third and the estates of the realm, _against
all those who should make statutes, or observe them, being made,
contrary to the liberties of Magna Charta_.”[10] Massachusetts spoke
for all the Colonies. Enjoyment of common rights was a common bond,
constituting an element of nationality. As these rights grew more
important, the common bond grew stronger.
The rights of citizenship in the Colonies were derived from common
relations to the mother country. No Colonist could be an alien in any
other Colony. As British subject he had the freedom of every Colony,
with the right of making his home there, and of inheriting lands. Among
all the Colonies there was a common and interchangeable citizenship,
or _inter-citizenship_. The very rule of the Constitution then began,
that “the citizens of each State shall be entitled to all privileges
and immunities of citizens in the several States.” Here was another
element of nationality. If not at that time fellow-citizens, all were
at least fellow-subjects. Fellowship had begun. Thus in the earliest
days, even before Independence, were the Colonists one people, with one
sovereignty, afterwards renounced.
* * * * *
Efforts for a common government on this side of the ocean soon showed
themselves. The Pilgrims landed at Plymouth in 1620. As early as 1643,
only twenty-three years later, there was a confederation under the
name of “The United Colonies of New England,” formed primarily for the
common defence; and here is the first stage of nationality on this
continent. In the preamble to the Articles the parties declare: “We,
therefore, do conceive it our bounden duty without delay to enter into
a present consociation amongst ourselves for mutual help and strength
in all our future concernments, that, as in nation and religion, so
in other respects, _we be and continue One_.”[11] Better words could
not mark the beginning of a nation. A distinguished character of the
time, recording the difficulties encountered by the Articles, says:
“But, being all desirous of union and studious of peace, they readily
yielded each to other in such things as tended to common utility, etc.,
so as in some two or three meetings _they lovingly accorded_.”[12]
Encouraged by “loving accord,” another proposition was brought forward
in Massachusetts, “for all the English within the United Colonies
_to enter into a civil agreement for the maintenance of religion and
our civil liberties_.”[13] More than a century elapsed before this
aspiration was fulfilled.
Meanwhile the Colonies grew in population and power. No longer merely
scattered settlements, they began to act a part in history. Anxious
especially against French domination, already existing in Canada and
extending along the Lakes to the Mississippi, they came together
in Congress at Albany, in 1754, to take measures for the common
defence. Delegates were present from seven Colonies, being all north
of the Potomac. Here the genius of Benjamin Franklin prevailed. A
plan from this master mind provided for what was called a “General
Government,” administered by a “President-General and Grand Council,”
where each Colony should have representatives in proportion to its
contributions,--Massachusetts and Virginia having seven each, while New
York had only four; and the first meeting of the “General Government”
was to be at Philadelphia.[14] Local jealousy and pretension were then
too strong for such a Union: and it found no greater favor in England;
for there Union was “dreaded as the keystone of Independence.”[15]
In defending this plan, Franklin, who had not yet entered into the
idea of Independence, did not hesitate to say that he looked upon the
Colonies “as so many counties gained to Great Britain,”[16]--employing
an illustration which most forcibly suggested actual Unity. Though
this experiment failed, it revealed the longing for one Cisatlantic
government, and showed how under other auspices it might be
accomplished.
Little more than ten years elapsed before the same yearning for common
life appeared again in the Colonial Congress at New York, convened in
1765, on the recommendation of Massachusetts, to arrest the tyranny of
the Stamp Act and assaults upon the common liberties. Nine Colonies,
after deliberation, united in a Declaration of Rights common to all.
Here was the inspiration of James Otis, the youthful orator of Freedom,
whose tongue of flame had already flashed the cry, “Taxation without
representation is tyranny,” and that other cry, worthy of perpetual
memory, “Equality and the power of the whole, without distinction of
color.” These were voices that heralded our Nation.
* * * * *
The mother country persisted; and in the same proportion the Colonies
were aroused to the necessity of union. Meanwhile that inflexible
Republican, Samuel Adams, of Massachusetts, brooding on the perils
to Liberty, conceived the idea of what he called “a Congress of
American States,” out of whose deliberations should come what he boldly
proclaimed “an American Commonwealth,”[17]--not several commonwealths,
not Thirteen, but One. Here, in a single brilliant flash, was revealed
the image of National Unity, while the word “Commonwealth” denoted
the common weal which all should share. The declared object of this
burning patriot was “to answer the great purpose of preserving our
liberties,”[18]--meaning, of course, the liberties of all. Better words
could not be chosen to describe a republican government. This was in
1773. Every Colony, catching the echo, stirred with national life.
Delegates were appointed, and in 1774 a Congress called “Continental,”
with a representation from twelve Colonies, was organized at
Philadelphia, and undertook to speak in the name of “the good people”
of the Colonies. Here was a national act. In the Declaration of
Rights which it put forth,--fit precursor of the Declaration of
Independence,--it grandly claims, that, by the immutable laws of
Nature, the principles of the English Constitution, and the several
Charters, all the inhabitants are “entitled to life, liberty, and
property,” and then announces “that the foundation of English liberty
and of all free government is _a right in the people to participate in
their legislative council_.”[19] Here was a claim of popular rights as
a first principle of government. Proceeding from a Congress of all,
such a claim marks yet another stage of national life.
The next year witnessed a second Continental Congress, also at
Philadelphia, which entered upon a mightier career. Proceeding at once
to exercise national powers, this great Congress undertook to put
the Colonies in a state of defence, authorized the raising of troops,
framed rules for the government of the army, commenced the equipment
of armed vessels, and commissioned George Washington as “general and
commander-in-chief of the army of the United Colonies, and of all the
forces now raised or to be raised by them, and of all others who shall
voluntarily offer their service and join the said army, for the defence
of American liberty.” Here were national acts, which history cannot
forget, and their object was nothing less than American liberty. It was
American liberty which Washington was commissioned to defend. Under
these inspirations was our Nation born. The time had now come.
* * * * *
Independence was declared. Here was an act which, from beginning to
end, in every particular and all its inspirations, was National,
stamping upon the whole people Unity in the support of Human Rights.
It was done “in the name and by authority of the good people of these
Colonies,” called at the beginning “one people,” and it was entitled
“Declaration by the Representatives of the United States of America
in Congress assembled,” without a word of separate sovereignty. As
a National act it has two distinct features: first, a severance of
the relations between the “United Colonies” and the mother country;
and, secondly, a declaration of self-evident truths on which the
severance was justified and the new Nation founded. It is the “United
Colonies” that are declared free and independent States; and this
act is justified by the sublime declaration that all men are created
equal, with certain inalienable rights, and that to secure these rights
governments are instituted among men, deriving their just powers from
the consent of the governed. Here was that “American Commonwealth,”
the image of National Unity, dedicated to Human Rights, which had
enchanted the vision of the early patriot seeking new safeguards for
Liberty. Here was a new Nation, with new promises and covenants, never
before made. The constituent authority was “the People.” The rights it
promised and covenanted were the Equal Rights of All; not the rights of
Englishmen, but the rights of Man. On this account our Declaration has
its great meaning in history; on this account our nation became at once
a source of light to the world. Well might the sun have stood still on
that day to witness a kindred luminary ascending into the sky!
In this sudden transformation where was the sovereignty? It was
declared that the _United_ Colonies are and _of right_ ought to be
free and independent States. It was never declared that the _separate_
Colonies were so _of right_. Plainly they never were so _in fact_.
Therefore there was no separate sovereignty either of right or in fact.
The sovereignty anterior to Independence was in the mother country;
afterwards it was in the people of the United States, who took the
place of the mother country. As the original sovereignty was undivided,
so also was that sovereignty of the people which became its substitute.
If authority were needed for this irresistible conclusion, I might
find it in the work of the great commentator, Mr. Justice Story, and
in that powerful discourse of John Quincy Adams entitled “The Jubilee
of the Constitution,” in both of which the sovereignty is accorded to
the People, and not to the States. Nor should I forget that rarest
political genius, Alexander Hamilton, who, regarding these things as a
contemporary, declared most triumphantly that “the Union had complete
sovereignty”; that “the Declaration of Independence was the fundamental
constitution of every State”; and, finally, that “the union and
independence of these States are blended and incorporated in one and
the same act.”[20] Such was the great beginning of national life.
* * * * *
A beautiful meditative poet, whose words are often most instructive,
confesses that we may reach heights we cannot hold:--
“And the most difficult of tasks to keep
Heights which the soul is competent to gain.”[21]
Our nation found it so. Only a few days after the great Declaration
in the name of “the People,” Articles of Confederation were brought
forward in the name of “the States.” Evidently these were drawn before
the Declaration, and they were in the handwriting of John Dickinson,
then a delegate from Pennsylvania, whom the eldest Adams calls “the
bell-wether of the aristocratical flock,”[22] and who had been the
orator against the Declaration. Not unnaturally, an opponent of the
Declaration favored a system which forgot the constituent sovereignty
of the people, and made haste to establish the pretensions of States.
These Articles were not readily adopted. There was hesitation in
Congress, and then hesitation among the States. At last, on the 1st
of March, 1781, Maryland gave a tardy adhesion, and this shadow of
a government began. It was a pitiful sight. The Declaration was
sacrificed. Instead of “one people,” we were nothing but “a league” of
States; and our nation, instead of drawing its quickening life from
“the good people,” drew it from a combination of “artificial bodies”;
instead of recognizing the constituent sovereignty of the people, by
whose voice Independence was declared, it recognized only the pretended
sovereignty of States; and, to complete the humiliating transformation,
the national name was called “the style,” being a term which denotes
sometimes title and sometimes copartnership, instead of unchangeable
unity. Such an apostasy could not succeed.
Even before the adoption of this denationalizing framework, its failure
had begun. The Confederation became at once a byword and a sorrow.
It was not fit for war or peace. It accomplished nothing national.
It arrested all the national activities. Each State played the part
of the feudal chieftain, selfishly absorbing power and denying it to
the Nation. Money could not be collected even for national purposes.
Commerce could not be regulated. Justice could not be administered.
Rights could not be assured. Congress was without coercive power,
and could act only through the local sovereignty. National unity was
impossible, and in its stead was a many-headed pretension. The country
was lapsing into chaos.
From Boston, which was the early home of the Revolution, had already
proceeded a cry for Nationality. A convention of delegates from
Massachusetts, Connecticut, and New Hampshire, with Thomas Cushing as
President, assembled at Boston in August, 1780, where, among other
things, it was recommended “that the Union of these States be fixed
in a more solid and permanent manner, that the powers of Congress be
more clearly ascertained and defined, and that the important _national_
concerns of the United States be _under the superintendency and
direction of one supreme head_,” and the word _Nation_ is adopted as
the natural expression for our unity.[23] But the time had not yet come
for this fulfilment.
* * * * *
In the prevailing darkness, two voices made themselves heard, both
speaking for National Unity on the foundation of Human Rights. The
singular accord between the two, not only in sentiment, but also in
language, and in date of utterance, attests concert. One voice was
that of Congress, in an Address and Recommendations to the States
on the close of the war, bearing date 18th April, 1783, where,
urging “effectual provision” for the war debts, as demanded alike by
national honor, and the honor of the cause in which they had been
contracted, it was said, in words worthy of companionship with the
immortal Declaration: “Let it be remembered that it has ever been the
pride and boast of America that _the rights for which she contended
were the rights of Human Nature_.”[24] The other voice was that of
Washington, in a general order, also bearing date 18th April, 1783,
announcing the close of the war, where, after declaring his “rapture”
in the prospect before the country, he says: “Happy, thrice happy,
shall they be pronounced hereafter who have contributed anything, who
have performed the meanest office, in erecting this stupendous fabric
of Freedom and Empire on the broad basis of Independency, _who have
assisted in protecting the rights of Human Nature_.”[25] This appeal
was followed by a circular letter to the Governors, where, after
announcing that it is for the United States to determine “whether they
will be respectable and prosperous or contemptible and miserable _as a
Nation_,” Washington proceeds to name first among the things essential
to national well-being, if not even to national existence, what he
calls “an indissoluble union of the States under one federal head”; and
he adds, that there must be a forgetfulness of “local prejudices and
policies,” and that “Liberty” must be at the foundation of the whole
structure.[26] Soon afterwards appearing before Congress to surrender
the trust committed to him as commander-in-chief, he hailed the United
States as a “Nation,” and “our dearest country,”[27]--thus embracing
the whole in his heart, as for seven years he had defended the whole by
his prudence and valor.
An incident of a different character attested the consciousness of
National Unity. The vast outlying territory, unsettled at the beginning
of the war, and wrested from the British crown by the common blood and
treasure, was claimed as a common property, subject to the disposition
of Congress for the general good. One by one, the States yielded their
individual claims. The cession of Virginia comprehended all that grand
region northwest of the Ohio, fertile and rich beyond imagination,
where are now prosperous States rejoicing in the Union. All these
cessions were on the condition that the lands should “be disposed of
for the common benefit of the United States, and be settled and formed
into distinct _republican States_.”[28] Here was a National act, with
the promise of republican government, which was the forerunner of the
guaranty of a republican government in the National Constitution.
The best men, in their longing for national unity, all concurred in
the necessity of immediate action to save the country. Foremost in
time, as in genius, was Alexander Hamilton, who was prompt to insist
that Congress should have “complete sovereignty, except as to that
part of internal police which relates to the rights of property and
life among individuals and to raising money by internal taxes”; and
still further, in words which harmonized with the Declaration of
Independence, that “the fabric of the American empire ought to rest on
the solid basis of the consent of the people.”[29] In kindred spirit,
Schuyler announced “the necessity of _a supreme and coercive power_
in the government of these States.”[30] Hamilton and Schuyler were
both of New York, which, with such representatives, took the lead in
solemn resolutions, which, after declaring that “the situation of
these States is in a peculiar manner critical,” and that “the present
system exposes the common cause to a precarious issue,” concluded with
a call for “a general convention of the States, specially authorized
to revise and amend the Confederation.”[31] The movement ended in the
National Convention. Other States followed, and Congress recommended
it as “the most probable means of establishing in these States a firm
National Government.”[32] Meantime, Noah Webster, whom you know so well
as author of the popular Dictionary, in an essay on the situation,
published at the time, proposed a new system of government, which
should act directly on the individual citizens, and by which Congress
should be invested with full powers of legislation within its sphere,
and for carrying its laws into effect.[33] But this proposition
involved nothing less than a National Government with supreme powers,
to which the States should be subordinate.
* * * * *
Here I mention three illustrious characters, who at this time lent the
weight of their great names to the national cause,--Jay, Madison, and
Washington,--each in his way without a peer. I content myself with
a few words from each. John Jay, writing to John Adams, at the time
our minister in London, under date of 4th May, 1786, says: “One of
the first wishes of my heart” is “to see the people of America become
_One Nation in every respect_; for, as to the separate Legislatures,
I would have them considered, with relation to the Confederacy, _in
the same light in which counties stand_ to the State of which they are
parts, viz., merely as districts to facilitate the purposes of domestic
order and good government.”[34] Even in this strong view Jay was not
alone. Franklin had already led in likening the colonies to “so many
counties.”[35] Madison’s desires were differently expressed. After
declaring against “an individual independence of the States,” on the
one side, and “a consolidation of the States into one simple republic,”
on the other side, he sought what he called a “middle ground,” which,
if varying from that of Jay, was essentially national. He would have
“_a due supremacy of the National authority_, and leave in force the
local authorities so far as they can be subordinately useful.”[36]
Here is the definition of a Nation. Washington, in a letter to Jay,
dated 1st August, 1786, stated the whole case with his accustomed
authority. Insisting upon the importance of “a coercive power,” he
pleads for national life: “I do not conceive we can exist long as _a
Nation_ without having lodged somewhere a power which will pervade the
whole Union in _as energetic a manner as the authority of the State
governments extends over the several States_.” He then adds: “To be
fearful of investing Congress, constituted as that body is, with _ample
authorities for National purposes_, appears to me the very climax of
popular absurdity and madness.”[37] Such were the longings of patriots,
all filled with a passion for country. But Washington went still
further, when, on another occasion, he denounced State sovereignty as
“bantling,” and even “monster.”[38]
* * * * *
The Constituent Convention, often called Federal, better called
National, assembled at Philadelphia in May, 1787. It was a memorable
body, whose deliberations have made an epoch in the history of
government. Jefferson and John Adams were at the time abroad in the
foreign service of the country, Samuel Adams was in service at home
in Massachusetts, and Jay in New York; but Washington, Franklin,
Hamilton, Madison, Gouverneur Morris, George Mason, Wilson, Ellsworth,
and Sherman appeared among its members. Washington, by their unanimous
voice, became President; and, according to the rules of the Convention,
on adjournment, every member stood in his place until the President had
passed him. Here is a glimpse of that august body which Art may yet
picture. Who would not be glad to look upon Franklin, Hamilton, and
Madison standing in their places while Washington passed?
* * * * *
On the first day after the adoption of the rules, Edmund Randolph, of
Virginia, opened the great business. He began by announcing that the
“Confederation” produced no security against foreign invasion; that the
“Federal Government” could not suppress quarrels or rebellion; that
the “Federal Government” could not defend itself against encroachments
from the States; and then, insisting that the remedy must be found in
“the republican principle,” concluded with a series of propositions for
a National Government, with a “National” Legislature in two branches,
a “National” Executive, and a “National” Judiciary, the whole crowned
by the guaranty of a republican government in each State. This series
of propositions was followed the next day by a simple statement in the
form of a resolution, where, after setting forth the insufficiency
of “a union of the States merely Federal,” or of “treaties among
the States as individual sovereignties,” it was declared “that _a
National Government ought to be established_, consisting of a supreme
legislative, executive, and judiciary.” Better words could not have
been chosen to express the prevailing aspiration for national life.
After ample debate, the resolution in this form was adopted. At a
later stage, in seeming deference to mistaken sensibilities, the
word “National” gave place to the term “the government of the United
States”; but this term equally denoted National Unity, although it did
not use the words. The whole clause afterwards found a noble substitute
in the Preamble to the Constitution, which is the annunciation of a
National Government proceeding directly from the People, like the
Declaration of Independence itself.
From the beginning to the end of its debates, the Convention breathed
the same patriotic fervor. Amidst all difference in details, and above
the persistent and sinister contest for the equal representation of
the States, great and small, the sentiment of Unity found constant
utterance. I have already mentioned Madison and Hamilton, who wished
a National Government; but others were not less decided. Gouverneur
Morris began early by explaining the difference between “Federal”
and “National.” The former implied “a mere compact, resting on the
good faith of the parties”; the latter had “a complete and compulsive
operation.”[39] Constantly this impassioned statesman protested against
State pretensions, insisting that the States were originally “nothing
more than colonial corporations,”[40] and exclaiming, “We cannot
annihilate, but we may perhaps take out the teeth of the serpents.”[41]
Wilson was a different character,--gentle by nature, but informed
by studies in jurisprudence and by the education brought from his
Scottish home. He was for a National Government, and did not think it
inconsistent with the “lesser jurisdictions” of States, which he would
preserve;[42] he would not “extinguish these planets,” but keep them
“within their proper orbits for subordinate purposes.”[43] He was too
much of a jurist to admit, “that, when the Colonies became independent
of Great Britain, they became independent also of each other,” and
he insisted that they became independent, “not individually, but
unitedly.”[44] Elbridge Gerry, of Massachusetts, was as strong on this
point as Gouverneur Morris, insisting that “we never were independent
States, were not such now, and never could be, even on the principles
of the Confederation.”[45] Rufus King, also of Massachusetts, touched
a higher key, when he wished that “every man in America” should be
“secured in all his rights,” and that these should not be “sacrificed
to the phantom of State sovereignty.”[46] Good words, worthy of him
who in the Continental Congress moved the prohibition of Slavery in
the national territories.[47] And Charles Pinckney, of South Carolina,
said, in other words of precious significance, that “every freeman has
a right to _the same protection and security_,” and then again, that
“equality is the leading feature of the United States.”[48] Under such
influences the Constitution was adopted by the Convention.
It is needless to dwell on its features, all so well known; but there
are certain points not to be disregarded now. There is especially
the beginning. Next after the opening words of the Declaration of
Independence, the opening words of the Constitution are the grandest
in history. They sound like a majestic overture, fit prelude to the
transcendent harmonies of National life on a theatre of unexampled
proportions. Though familiar, they cannot be too often repeated; for
they are in themselves an assurance of popular rights and an epitome
of National duties: “_We, the people of the United States_, in order
to form a more perfect Union, establish justice, insure domestic
tranquillity, provide for the common defence, promote the general
welfare, and secure the blessings of liberty to ourselves and our
posterity, do ordain and establish this Constitution for the United
States of America.” Thus by the people of the United States was the
Constitution ordained and established; not by the States, nor even by
the people of the several States, but by _the people of the United
States_ in aggregate individuality. Nor is it a league, alliance,
agreement, compact, or confederation; but it is a Constitution, which
in itself denotes an indivisible unity under one supreme law, permanent
in character; and this Constitution, thus ordained and established,
has for its declared purposes nothing less than liberty, justice,
domestic tranquillity, the common defence, the general welfare, and a
more perfect union, all essentially National, and to be maintained by
the National arm. The work thus begun was completed by three further
provisions: first, the lofty requirement that “the United States
shall guaranty to every State in this Union a republican form of
government,”--thus subjecting the States to the presiding judgment of
the Nation, which is left to determine the definition of a republican
government; secondly, the practical investiture of Congress with
authority “to make all laws which shall be necessary and proper for
carrying into execution all the powers vested by this Constitution in
the Government of the United States, or in any department or officer
thereof,”--thus assuring the maintenance of the National Government,
and the execution of its powers through a faithful Congress chosen
by the people; and, thirdly, the imperial declaration, that “this
Constitution, and the laws of the United States which shall be made
in pursuance thereof, and all treaties made or which shall be made
under the authority of the United States, 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_,”--thus forever fixing the supremacy of the National
Government on a pinnacle above all local laws and constitutions. And
thus did our country again assume the character and obligations of a
Nation. Its first awakening was in the Declaration of Independence; its
second was in the National Constitution.
* * * * *
On its adoption, the Constitution was transmitted to Congress with a
letter from Washington, where, among other things, it is said that “in
all our deliberations we kept steadily in our view that which appears
to us the greatest interest of every true American, _the consolidation
of our Union_, in which is involved our prosperity, felicity, safety,
perhaps our National existence.”[49] Enough that this letter is signed
“George Washington”; but it was not merely the expression of his
individual sentiments. It was unanimously adopted by the Convention,
on the report of the committee that made the final draught of the
Constitution itself, so that it must be considered as belonging to
this great transaction. By its light the Constitution must be read.
If anybody is disposed to set up the denationalizing pretensions of
States under the National Constitution, let him bear in mind this
explicit declaration, that, throughout all the deliberations of the
Convention, the one object kept steadily in view was _the consolidation
of our Union_. Such is the unanimous testimony of the Convention,
authenticated by George Washington.
The Constitution was discussed next in the States. It was vindicated
as creating a National Government, and it was opposed also on this
very ground. Thus from opposite quarters comes the concurring
testimony. In Connecticut, Mr. Johnson, who had been chairman of
the committee that reported the final draught, said, in reply to
inquiries of his constituents, that the Convention had “gone upon
entirely new ground: they have formed _one new Nation_ out of the
individual States.”[50] George Mason, of Virginia, proclaimed at home
that “the Confederation of the States was entirely changed into _one
consolidated government_,”--that it was “a _National_ government,
and no longer a Confederation.”[51] Patrick Henry, in his vigorous
opposition, testified to the completeness with which the work had been
accomplished. Inquiring by what authority the Convention assumed to
make such a government, he exclaimed: “That this is a consolidated
government is demonstrably clear.… Give me leave to demand, What right
had they to say, _We, the people_?… Who authorized them to speak
the language of _We, the people_, instead of _We, the States_?… If
the States be not the agents of this compact, it must be one great
consolidated National government of the people of all the States.”[52]
Then again the same fervid orator declared, with infinite point, “The
question turns, Sir, on that poor little thing, the expression, _We,
the people_, instead of _the States_.”[53] Patrick Henry was right.
The question did turn on that grand expression, _We, the people_, in
the very frontispiece of the Constitution, filling the whole with
life-giving power; and so long as it stands there, the denationalizing
pretensions of States must shrink into littleness. Originally “one
people” during colonial days, we have been unalterably fixed in this
condition by two National acts: first, the Declaration of Independence,
and then again, the National Constitution. Thus is doubly assured the
original unity in which we were born.
* * * * *
Other tokens of Nationality, like the air we breathe, are so common
that they hardly attract attention; but each has a character of its
own. They belong to the “unities” of our nation.
1. There is the National Flag. He must be cold indeed, who can look
upon its folds rippling in the breeze without pride of country. If in
a foreign land the flag is companionship, and country itself, with all
its endearments, who, as he sees it, can think of a State merely? Whose
eyes, once fastened upon its radiant trophies, can fail to recognize
the image of the whole Nation? It has been called “a floating piece of
poetry”; and yet I know not if it have an intrinsic beauty beyond other
ensigns. Its highest beauty is in what it symbolizes. It is because
it represents all, that all gaze at it with delight and reverence. It
is a piece of bunting lifted in the air; but it speaks sublimely, and
every part has a voice. Its stripes of alternate red and white proclaim
the original _union_ of thirteen States to maintain the Declaration
of Independence. Its stars of white on a field of blue proclaim that
_union_ of States constituting our national constellation, which
receives a new star with every new State. The two together signify
Union, past and present. The very colors have a language, officially
recognized by our fathers. White is for purity; red, for valor; blue,
for justice. And all together, bunting, stripes, stars, and colors,
blazing in the sky, make the flag of our country, to be cherished by
all our hearts, to be upheld by all our hands.
Not at once did this ensign come into being. Its first beginning was
in the camp before Boston, and it was announced by Washington in these
words: “The day which gave being to the new army, we hoisted the _Union
flag_, in compliment to the United Colonies.”[54] The National forces
and the National flag began together. Shortly afterwards, amidst the
acclamations of the people, a fleet of five sail left Philadelphia,
according to the language of the time, “under the display of a _Union
flag_ with thirteen stripes.”[55] This was probably the same flag, not
yet matured into its present form. In its corner, where are now the
stars, were the crosses of St. George and St. Andrew, red and white,
originally representing England and Scotland, and when conjoined, after
the union of those two countries, known as “the Union.” To these were
added thirteen stripes, alternate red and white, and the whole was
hailed at the time as the Great Union Flag. The States, represented by
the stripes, were in subordination to the National Unity, represented
by the two crosses. But this form did not continue long. By a
resolution adopted 14th June, 1777, and made public 3d September, 1777,
Congress determined “that the flag of the thirteen United States be
thirteen stripes, alternate red and white; that _the union_ be thirteen
stars, white in a blue field, representing a new constellation.”[56]
Here the crosses of St. George and St. Andrew gave place to white
stars in a blue field; the familiar symbol of British union gave place
to another symbol of union peculiar to ourselves; and this completed
the national flag, which a little later floated at the surrender of
Burgoyne. Long afterward, in 1818, it was provided by Congress that a
star be added on the admission of a new State, “to take effect on the
fourth day of July next succeeding such admission.”[57] Thus, in every
respect, and at each stage of its history, the National Flag testifies
to the National Unity. The whole outstretched, indivisible country is
seated in its folds.
There is a curious episode of the national flag, which is not without
value. As far back as 1754, Franklin, while attempting a union of the
Colonies, pictured the principal ones in a wood-cut under the device of
a snake divided into eight parts marked with their initials, and under
the disjointed whole the admonitory motto, “_Join or die_,”--thus
indicating the paramount necessity of Union. In the heats of the
Revolutionary discussion, a similar representation of all the Thirteen
Colonies was adopted as the head-piece of newspapers, and was painted
on banners; but when the Union was accomplished, the divisions and
initials were dropped, and the snake was exhibited whole, coiled
in conscious power, with thirteen rattles, and under it another
admonitory motto, “_Don’t tread on me_,”--being a warning to the mother
country.[58] This flag was yellow, and it became the early standard of
the Revolutionary navy, being for the first time hoisted by Paul Jones
with his own hands. It had a further lesson. A half-formed additional
rattle was said by Franklin “to represent the province of Canada,”
and the wise man added, that “the rattles are united together so as
never to be separated but by breaking them to pieces.” Thus the snake
at one time pictured the necessity of Union, and at another time its
indissoluble bond.[59] But these symbols were all in harmony with the
national flag, which, from its first appearance, in all its forms,
pictured the common cause.
2. There is next the National Motto, as it appears on the national
seal and on the national money. A common seal and common money are
signs of National Unity. In each the supreme sovereignty of the Nation
is manifest. The first is like the national flag, and stands for
the Nation, especially in treaties with foreign powers. The second
is a national convenience, if not necessity, taking its distinctive
character from the Nation, so that everywhere it is a representative
of the Nation. Each has the same familiar motto, _E pluribus
unum_,--“From many one.” Its history attests its significance.
On the 4th of July, 1776, the very day of Independence, Benjamin
Franklin, John Adams, and Thomas Jefferson were appointed a committee
to prepare a device for a great seal. They were of the identical
committee that had reported the Declaration of Independence itself.
Their report on the seal was made 20th August, 1776; and here we first
meet the national motto, in such entire harmony with the Declaration,
making us “one people.” Questions of detail intervened, and no
conclusion was reached until 20th June, 1782, when the present seal was
adopted, being the American bald eagle, with the olive-branch in one
talon and a bundle of thirteen arrows in the other, and in his beak a
scroll, bearing the inscription, _E pluribus unum_. Familiar as these
Latin words have become,--so that they haunt the memory of manhood,
youth, and childhood alike,--it is not always considered how completely
and simply they tell the story of our national life. Out of Many
Colonies was formed One Nation. Former differences were merged in this
unity. No longer Many, they were One. The Nation by its chosen motto
repeats perpetually, “We are One”; and the Constitution echoes back,
“We, the people of the United States.”
3. There is next the National Name, which of itself implies National
Unity. The States are not merely allied, associated, coalesced,
confederated, but they are _United_, and the Constitution, formed to
secure a more perfect union, is “for the _United_ States of America,”
which term was used as the common name of the Nation.
A regret has been sometimes expressed by patriots and by poets, that
some single term was not originally adopted, which of itself should
exclude every denationalizing pretension, and be a talisman for the
heart to cherish and for the tongue to utter,--as when Nelson gave his
great watchword at Trafalgar, “_England_ expects every man to do his
duty.” Occasionally it is proposed to call the country _Columbia_, and
thus restore to the great discoverer at least part of the honor taken
from him when the continent was misnamed _America_. _Alleghania_ has
also been proposed; but this word is too obviously a mere invention,
besides its unwelcome suggestion of Alligator. Another proposition
has been _Vinland_, being the name originally given by the Northmen,
four centuries before Christopher Columbus. Professor Lieber, on one
occasion, called the nation _Freeland_, a name to which it will soon
be entitled. Even as a bond of union, such a name would not be without
value. As long ago as Herodotus, it was said of a certain people,[60]
that they would have been the most powerful in the world, if they had
been united; but this was impossible, from the want among themselves of
a common name.
Forgetting that the actual name implies Unity, and, when we consider
its place in the preamble of the National Constitution, that it
implies Nationality also, the partisans of State pretensions argue
from it against even the idea of country; and here I have a curious
and authentic illustration. In reply to an inquirer,[61] who wished
a single name, Mr. Calhoun exclaimed: “Not at all; we have no name
because we ought to have none; we are only States united, and have
no country.” Alas, if it be so!--if this well-loved land, for which
so many have lived, for which so many have died, is not our country!
But this strange utterance shows how completely the poison of these
pretensions had destroyed the common sense, as well as the patriotism,
of this much-mistaken man.
Names may be given by sovereign power to new discoveries or
settlements; but, as a general rule, they grow out of the soil,
they are autochthonous. Even Augustus, when ruling the Roman world,
confessed that he could not make a new word,[62] and Plato tells
us that “a creator of names is the rarest of human creatures.”[63]
Reflecting on these things, we may appreciate something of the
difficulty in the way of a new name at the formation of the National
Constitution. As this was little more than a transcript of prevailing
ideas and institutions, it was natural to take the name used in the
Declaration of Independence.
And yet it must not be forgotten that there was a name of
different character which was much employed. Congress was called
“Continental,” the army “Continental,” the money “Continental,”--a
term certainly of unity, as well as vastness. But there was still
another national designation, accepted at home and abroad. Our
country was called “America,” and we were called “Americans.” Here
was a natural, unsought, and instinctive name,--a growth, and not
a creation,--implying national unity and predominance, if not
exclusive power, on the continent. It was used not occasionally or
casually, but constantly,--not merely in newspapers, but in official
documents. Not an address of Congress, not a military order, not a
speech, which does not contain this term, at once so expansive and so
unifying. At the opening of the first Continental Congress, Patrick
Henry, in a different mood from that of a later day, announced the
national unity under this very name. Declaring the boundaries of the
several Colonies effaced, and the distinctions between Virginians,
Pennsylvanians, New-Yorkers, and New-Englanders as no more, he
exclaimed, in words of comprehensive patriotism, “I am not a Virginian,
but an _American_.”[64] Congress took up the strain, and commissioned
Washington as commander-in-chief of the armies “for the defence
of _American_ liberty”;[65] and Washington himself, in his first
general order at Cambridge, assuming his great command, announced
that the armies were “for the support and defence of the liberties of
_America_;[66] and in a letter to Congress, just before the Battle
of Trenton, he declared that he had labored “to discourage all kinds
of local attachments and distinctions of country, _denominating the
whole by the greater name of American_.”[67] Then at the close of the
war, in its immortal Address, fit supplement to the Declaration of
Independence, Congress said: “Let it be remembered that it has ever
been the pride and boast of _America_ that the rights for which she
contended were the rights of Human Nature.”[68] Washington again,
in his letter to Congress communicating the National Constitution,
says, in other words, which, like those of Congress, cannot be too
often quoted, that “the _consolidation of our Union_” is “the greatest
interest of _every true American_.”[69] Afterwards, in his Farewell
Address, which from beginning to end is one persuasive appeal for
nationality, after enjoining upon his fellow-citizens that “_unity of
government_ which constitutes them _one people_,” he gives to them a
national name, and this was his legacy: “_The name of American, which
belongs to you in your national capacity_, must always exalt the just
pride of patriotism more than any appellation derived from local
discriminations.”[70] Thus did Washington put aside those baneful
pretensions under which the country has suffered, even to the extent of
adopting a National Name, which, like the Union itself, should have a
solid coercive power.
It is not impossible that in the lapse of time history will vindicate
the name adopted by Washington, which may grow with the Republic, until
it becomes the natural designation of one country. Our fathers used
this term more wisely than they knew; but they acted under Providential
guidance. Is it not said of the stars, that God “calleth them all by
names, by the greatness of His might”?[71] Is it not declared also that
He will make him who overcometh a pillar in the temple, and give to him
a “new name”?[72] So, as our stars multiply, and the nation overcometh
its adversaries, persuading all to its declared principles, everywhere
on the continent, it will become a pillar in the temple, and the name
of the continent itself will be needed to declare alike its unity and
its power.
4. To these “unities,” derived from history and the heart of the
people, may be added another, where Nature is the great teacher. I
refer to the geographical position and configuration of our country,
if not of the whole continent, marking it for one nation. Unity is
written upon it by the Almighty hand. In this respect it differs much
from Europe, where, for generations, seas, rivers, and mountains kept
people apart, who had else, “like kindred drops, been mingled into
one.” There is no reason why they should not commingle here. Nature in
every form is propitious. Facility of intercourse, not less than common
advantage, leads to unity: both these are ours. Here are navigable
rivers, numerous and famous, being so many highways of travel, and a
chain of lakes, each an inland sea. Then there is an unexampled extent
of country adapted to railways; and do not forget that with the railway
is the telegraph, using the lightning as its messenger, so that the
interrogatory to Job is answered, “Canst thou send lightnings that they
may go?”[73] The country is one open expanse, from the frozen Arctic
to the warm waters of the Gulf, and from the Atlantic to the Rocky
Mountains,--and there already science supplies the means of overcoming
this barrier, which in other days would have marked international
boundaries. The Pacific Railway will neutralize these mountains, and
complete the geographical unity of the continent. The slender wire of
the telegraph, when once extended, is an indissoluble tie; the railway
is an iron band. But these depend upon opportunities which Nature
supplies, so that Nature herself is one of the guardians of our nation.
He has studied history poorly, and human nature no better, who
imagines that this broad compacted country can be parcelled into
different nationalities. Where will you run the thread of partition? By
what river? Along what mountain? On what line of latitude or longitude?
Impossible. No line of longitude or latitude, no mountain, no river,
can become the demarcation. Every State has rights in every other
State. The whole country has a title, which it will never renounce, in
every part, whether the voluminous Mississippi as it pours to the sea,
or that same sea as it chafes upon our coast. As well might we of the
East attempt to shut you of the West from the ocean as you attempt to
shut us from the Mississippi. The ocean will always be yours as it is
ours, and the Mississippi will always be ours as it is yours.
Our country was planned by Providence for a united and homogeneous
people. Apparent differences harmonize. Even climate, passing through
all gradations from North to South, is so tempered as to present an
easy uniformity from the Atlantic to the Rocky Mountains. Unmeasured
supplies of all kinds, mineral and agricultural, are at hand,--the
richest ores and the most golden crops, with the largest coal-fields of
the world below and the largest corn-fields of the world above. Strabo
said of ancient Gaul, that, by its structure, with its vast plains and
considerable rivers, it was destined to become the theatre of a great
civilization.[74] But the structure of our country is more auspicious.
Our plains are vaster and our rivers more considerable, furnishing a
theatre grander than any imagined by the Greek geographer. It is this
theatre, thus appointed by Nature, which is now open for the good of
mankind.
Here I stop, to review the field over which we have passed, and to
gather its harvest into one sheaf. Beginning with the infancy of the
Colonies, we have seen how, with different names and governments, they
were all under _one sovereignty_, with common and interchangeable
rights of citizenship, so that no British subject in one Colony could
be made an alien in any other Colony; how, even at the beginning,
longings for a common life began, showing themselves in “loving
accord”; how Franklin regarded the Colonies “as so many counties”;
how the longings increased, until, under the pressure of the mother
country, they broke forth in aspiration for “an American Commonwealth”;
how they were at last organized in a Congress, called, from its
comprehensive character, “Continental”; how, in the exercise of powers
derived from “the good people,” and in their name, the Continental
Congress put forth the Declaration of Independence, by which the
sovereignty of the mother country was forever renounced, and we were
made “one people,” solemnly dedicated to Human Rights, and thus became
a Nation; how the undivided sovereignty of all was substituted for
the undivided sovereignty of the mother country, embracing all the
States as the other sovereignty had embraced all the Colonies; how,
according to Franklin, the States were locked together, “so as never to
be separated, but by breaking them to pieces”; how in an evil hour the
Confederation was formed in deference to denationalizing pretensions
of the States; how the longings for national life continued, and
found utterance in Congress, in Washington, and in patriot compeers;
how Jay wished the States should be like “counties”; how “Washington
denounced State sovereignty as “bantling” and “monster”; how at last
a National Convention assembled, with Washington as President, where
it was voted that “a National Government ought to be established”;
how in this spirit, after ample debate, the National Constitution was
formed, with its preamble beginning “We, the people,” with its guaranty
of a republican government to all the States, with its investiture of
Congress with all needful powers for the maintenance of the Government,
and with its assertion of supremacy over State constitutions and laws;
how this Constitution was commended by Washington in the name of the
Convention as “the consolidation of our Union”; how it was vindicated
and opposed as creating a National Government; how on its adoption we
again became a Nation; then how our nationality has been symbolized
in the National Flag, the National Motto, and the National Name; and,
lastly, how Nature, in the geographical position and configuration of
the country, has supplied the means of National Unity, and written her
everlasting guaranty. And thus do I bind the whole together into one
conclusion, saying to all, We are a Nation.
Nor is this all. Side by side with the growth of National Unity was
a constant dedication to Human Rights, which showed itself not only
in the Declaration of Independence, with its promises and covenants,
but in the constant claim of the rights of Magna Charta, the earlier
cries of Otis, the assertion by the first Continental Congress of the
right of the people “to participate in their legislative council,” the
commission of Washington as commander-in-chief “for the defence of
American liberty,” and the first general order of Washington, on taking
command of his forces, where he rallies them to this cause; also in
the later proclamation of Congress, at the close of the Revolution,
that the rights contended for had been “the rights of Human Nature,”
and the farewell general order of Washington, on the same occasion,
where the contest is characterized in the same way: so that Human
Rights were the beginning and end of the war, while the nation, as it
grew into being, was quickened by these everlasting principles, and its
faith was plighted to their support.
* * * * *
As a Nation, with a place in the family of nations, we have the powers
of a nation, with corresponding responsibilities. Whether we regard
these powers as naturally inhering in the nation, or as conferred upon
it by those two title-deeds, the Declaration of Independence and the
National Constitution, the conclusion is the same. From Nature, and
also from its title-deeds, our nation must have all needful powers:
first, for the national defence, foremost among which is the power to
uphold and defend the national unity; secondly, for the safeguard of
the citizen in all his rights of citizenship, foremost among which is
equality, the first of rights, so that, as all owe equal allegiance,
all shall enjoy equal protection; and, thirdly, for the support
and maintenance of all the promises made by the nation, especially
at its birth, being baptismal vows which cannot be disowned. These
three powers are essentially national. They belong to our nation by
the very law of its being and the terms of its creation. They cannot
be neglected or abandoned. Every person, no matter what his birth,
condition, or color, who can raise the cry, “I am an American citizen,”
has a right to require at the hands of the nation, that it shall do
its utmost, by all its central powers, to uphold the national unity,
to protect the citizen in the rights of citizenship, and to perform
the original promises of the nation. Failure here is apostasy and
bankruptcy combined.
It is vain to say that these requirements are not expressly set
down in the National Constitution. By a law existing before this
title-deed, they belong to the essential conditions of national life.
If not positively nominated in the Constitution, they are there in
substance; and this is enough. Every word, from “We, the people,” to
the signature, “George Washington,” is instinct with national life, and
there is not a single expression taking from the National Government
any inherent power. From this “nothing” in the Constitution there can
come nothing adverse. But there has always been a positive injunction
on the nation to guaranty “a republican form of government” to all the
States; and who can doubt, that, in the execution of this guaranty,
the nation may exercise all these powers, and provide especially for
the protection of the citizen in all the rights of citizenship? There
are also recent Amendments, abolishing slavery, and expressly securing
“the privileges and immunities of citizens” against the pretensions of
States. Then there is the Declaration of Independence itself, which is
the earlier title-deed. By that sacred instrument we were declared “one
people,” with liberty and equality for all, and then, fixing forever
the rights of citizenship, it was announced that all just government
was derived only from “the consent of the governed.” Come weal or woe,
that great Declaration must stand forever. Other things may fail, but
this cannot fail. It is immortal as the nation itself. It is part of
the nation, and the part most worthy of immortality. By it the National
Constitution must be interpreted; or rather, the two together are the
Constitution,--as Magna Charta and the Bill of Rights together are
the British Constitution. By the Declaration our nation was born and
its vital principles were announced; by the Constitution the nation
was born again and supplied with the machinery of government. The two
together are our National Scriptures, each being a Testament.
* * * * *
Against this conclusion there has been from the beginning one perpetual
pretension in the name of States. The same spirit which has been so
hostile to national unity in other countries, which made each feudal
chief a petty sovereign, which for a long time convulsed France, which
for centuries divided Italy, and which, unhappily, still divides
Germany, has appeared among us. Assuming that communities never
“sovereign” while colonies, and independent only by the national
power, had in some way, by some sudden hocus-pocus, leaped into local
sovereignty, and forgetting also that two sovereignties cannot coexist
in the same place, as, according to the early dramatist,
“Two kings in England cannot reign at once,”[75]
the States insisted upon sovereign powers justly belonging to the
Nation. Long ago the duel began. The partisans of State pretensions,
plausibly professing to _decentralize_ the Government, have
done everything possible to _denationalize_ it. In the name of
self-government, they have organized local lordships hostile to Human
Rights; in the name of the States, they have sacrificed the Nation.
This pretension, constantly showing itself, has broken out on three
principal occasions. The first was in the effort of Nullification,
which occurred in 1832, where, under the lead of Mr. Calhoun, South
Carolina attempted to nullify the Revenue Acts of Congress, or, in
other words, to declare them void within her limits. After encountering
the matchless argument of Daniel Webster, enforced by his best
eloquence, Nullification was blasted by the thunderbolt of Andrew
Jackson, who, in his Proclamation, as President, thus exposed it, even
in the form of Secession, which it assumed at a later day: “Each State,
having expressly parted with so many powers as to constitute jointly
with the other States _a single nation_, cannot from that period
possess any right to secede, because such secession does not break a
league, but destroys the unity of a nation.”[76] The pretension next
showed itself in the Rebellion; and now that the Rebellion is crushed,
it reappears in still another form, by insisting that each State at
its own will may disregard the universal rights of the citizen, and
apply a discrimination according to its own local prejudices,--thus
within its borders nullifying the primal truths of the Declaration of
Independence. Here again do State pretensions, in their anarchical
egotism, interfere with the National Unity.
The pretensions of States have found their ablest and frankest upholder
in John C. Calhoun. I take a single instance, on account of its
explicitness. In reply to a Northern Senator, the defender of Slavery
said:--
“Now let me tell the Senator that the doctrines which we
advocate are the result of the fullest and most careful
examination of our system of government, and that our
conviction that we constitute _an Union, and not a Nation_, is
as strong and as sincere as that of the Senator or any other in
the opposite opinion.”
“We are as devoted to the Union as any portion of the American
people (I use the phrase as meaning the people of the Union);
but we see in a national consolidated government evils
innumerable to us. Admit us to be a Nation and not an Union,
and where would we stand? _We are in the minority._”[77]
Evidently, in that minority he saw the doom of Slavery.
* * * * *
Local self-government, whether in the town, county, or State, is of
incalculable advantage, supplying the opportunities of political
education, and also a local administration adapted precisely to local
wants. On this account the system has been admired by travellers
from abroad, who have found in our “town meetings” the nurseries of
the Republic, and have delighted in local exemption from central
supervisorship. De Tocqueville, who journeyed here, has recorded his
authoritative praise,--and Laboulaye, who has visited us only in his
remarkable studies, unites with De Tocqueville. Against that exacting
centralization, absorbing everything, of which Paris is the example, I
oppose the American system of self-government, which leaves the people
to themselves, subject only to the paramount conditions of national
life. But these conditions cannot be sacrificed. No local claim of
self-government can for a moment interfere with the supremacy of the
Nation, in the maintenance of Human Rights.
According to the wisdom of Plutarch, we must shun those pestilent
persons who would “carry trifles to the highest magistrate,” and, in
the same spirit, reject that pestilent supervisorship which asserts
a regulating power over local affairs, and thus becomes a giant
intermeddler. Let these be decided at home, in the States, counties,
and towns to which they belong. Such is the genius of our institutions.
This is the precious principle of self-government, which is at once
educator and agency. In the former character, it is an omnipresent
schoolmaster; in the latter, it is a suit of chain-armor, which, from
flexibility, is adapted to the body of the nation, so that the limbs
are free. Each locality has its own way in matters peculiar to itself.
But the rights of all must be placed under the protection of all; nor
can there be any difference in different parts of the country. Here the
rule must be uniform, and it must be sustained by the central power
radiating to every part of the various empire. This is according to the
divine Cosmos, which in all its spaces is pervaded by one universal
law. It is the rule of Almighty Beneficence, which, while leaving
human beings to the activities of daily life and the consciousness
of free-will, subjects all to the same commanding principles. Such
centralization is the highest civilization, for it approaches the
nearest to the heavenly example. Call it imperialism, if you please: it
is simply the imperialism of the Declaration of Independence, with all
its promises fulfilled. It is rendering unto Cæsar the things that are
Cæsar’s. Already by central power Slavery has been abolished. Already
by central power all have been assured in the equality of _civil_
rights.
“Two truths are told,
As happy prologues to the swelling act
Of the imperial theme.”
It remains now that by central power all should be assured in the
equality of _political_ rights. This does not involve necessarily
what is sometimes called the “regulation” of the suffrage by the
National Government, although this would be best. It simply requires
the abolition of any discrimination among citizens, inconsistent with
Equal Rights. If not by Act of Congress, let it be by a new Amendment
of the Constitution; but it must be at once. Until this is done, we
leave undone what ought to be done, and, in pitiable failure to perform
a national duty, justify the saying that “there is no health in us.”
The preposterous pretension, that color, whether of the hair or of the
skin, or that any other unchangeable circumstance of natural condition
may be made the “qualification” of a voter, cannot be tolerated. It is
shocking to the moral sense, and degrading to the understanding.
As in the Nation there can be but one sovereignty, so there can be
but one citizenship. The unity of sovereignty finds its counterpart
and complement in the unity of citizenship, and the two together are
the tokens of a united people. Thus are the essential conditions
of national life all resolved into three,--_one sovereignty, one
citizenship, one people_.
* * * * *
I conclude as I began. The late Rebellion against the nation was in the
name of State Rights; therefore State Rights in their denationalizing
pretensions must be overthrown. It proceeded from hostility to the
sacred principles of the Declaration of Independence; therefore must
these sacred principles be vindicated in spirit and in letter, so that
hereafter they shall be a supreme law, coëqual with the Constitution,
in whose illumination the Constitution must be read, and they shall
supply the final definition of a Republic for guidance at home and for
example to mankind.
In this great change we follow Nature and obey her mandate. By
irresistible law, water everywhere seeks its level, and finds it; and
so, by law as irresistible, man seeks the level of every other man
in rights, and will find it. Human passions and human institutions
are unavailing to arrest it, as Nature is stronger than man, and the
Creator is mightier than the creature. The recognition of this law
is essential to the national cause; for so you will work with Nature
rather than against it, and at the same time in harmony with the
Declaration of Independence. Here I borrow a word from Locke, who, in
his Essay “Of the Conduct of the Understanding,” says, that, in dealing
with propositions, we must always examine upon what they “bottom.”[78]
Now, in dealing with the Rebellion, we find, that, though in the name
of State Rights, it “bottomed” on opposition to National Law and open
denial of the self-evident truths declared by our fathers, especially
of that central truth which Abraham Lincoln, at Gettysburg, in the
most touching speech of all history, thus announces: “Four-score and
seven years ago, our fathers brought forth upon this continent a new
Nation, conceived in Liberty, and dedicated to the proposition that
_all men are created Equal_.”[79] Slavery was “bottomed” on the direct
opposite; and so was the Rebellion, from beginning to end. Therefore
we must encounter this denial. We do not extinguish Slavery, we do
not trample out the Rebellion, until the vital truth declared by our
fathers is established, and Nature in her law is obeyed. To complete
the good work, this is necessary. Liberty is won: Equality must be won
also. In England there is Liberty without Equality; in France, Equality
without Liberty. The two together must be ours. This final victory
will be the greatest of the war; it will be the consummation of all
other victories. Here must we plant the national standard. To this
championship I summon you. Go forth, victors in so many fields, and
gather now the highest palm of all. The victory of ideas is grander far
than any victory of blood. What battle ever did so much for humanity
as the Sermon on Mars Hill? What battle ever did so much as the
Declaration of Independence? But Sermon and Declaration are one, and it
is your glorious part to assure the National Unity on this adamantine
base.
All hail to the Republic, redeemed and regenerated, One and
Indivisible! Nullification and Secession are already, like the extinct
monsters of a former geological period, to be seen only in the museum
of History. With their extinction must disappear the captious,
litigious, and disturbing spirit engendered by State pretensions. The
whole face of the country will be transformed. There will be concord
for discord, smiles for frowns. There will be a new consciousness
of national life, with a corresponding glow. The soul will dilate
with the assured unity of the Republic, and all will feel the glory
of its citizenship. Since that of Rome, nothing so commanding.
Local jealousies and geographical distinctions will be lost in the
attractions of a common country. Then, indeed, there will be no North,
no South, no East, no West; but there will be One Nation. No single
point of the compass, but the whole horizon, will receive our regard.
Not the Southern Cross flaming with beauty, not even the North Star,
long time guide of the mariner and refuge to the flying bondman, but
the whole star-spread firmament, will be our worship and delight.
As the Nation stands confessed in undivided sovereignty, the States
will not cease their appropriate functions. Interlocked, interlaced,
and harmonized, they will be congenial parts of the mighty whole, with
Liberty and Equality the recognized birthright of all, and no local
pretension to interfere against the universal law. There will be a
sphere alike for the States and Nation. Local self-government, which
is the pride of our institutions, will be reconciled with the national
supremacy in maintenance of human rights, and the two together will
constitute the elemental principles of the Republic. The States will
exercise a minute jurisdiction required for the convenience of all; the
Nation will exercise that other paramount jurisdiction required for
the protection of all. The reconciliation--God bless the word!--thus
begun will embrace the people, who, forgetting past differences, will
feel more than ever that they are One, and it will invigorate the still
growing Republic, whose original root was little more than an acorn, so
that it will find new strength to resist the shock of tempest or time,
while it overarches the continent with its generous shade. Such, at
least, is the aspiration in which all may unite.
“Firm like the oak may our blest nation rise,
No less distinguished for its strength than size;
The unequal branches emulous unite
To shield and grace the trunk’s majestic height;
Through long succeeding years and centuries live,
No vigor losing from the aid they give!”[80]
CONSTANT DISTRUST OF THE PRESIDENT.
REMARKS IN THE SENATE, ON THE FINAL ADJOURNMENT, NOVEMBER 26, 1867.
Thursday, November 21st, Congress reassembled, pursuant to the
resolution adopted July 20th. According to existing law, the
regular session would commence on the first Monday of December.
November 26th, Mr. Grimes, of Iowa, moved the adjournment
of the two Houses on Monday, December 2d, at half past
eleven o’clock, A. M. Mr. Sumner suggested “twelve o’clock,”
remarking,--
I question whether we should leave even the break of half an hour
between the two sessions. The point is just this: Will you leave to
the President one half-hour within which he may take advantage of the
absence of Congress, and issue commissions which would perhaps run--I
do not decide the point now, but which, I say, might run to the last
day of the next session?--that may be midsummer or autumn. I take it
that an appointment during that interim of half an hour might possibly
be valid to the last day of the next session of Congress.
MR. EDMUNDS [of Vermont]. But the law takes no notice of parts
of a day.
MR. SUMNER. That is a technicality. Why open the question?
Mr. Grimes, following the suggestion, altered his motion to
“twelve o’clock.” A debate ensued, in which Mr. Sherman, of
Ohio, Mr. Fessenden, of Maine, and Mr. Trumbull, of Illinois,
took part. Mr. Sumner followed.
I hope that what we do will be for the welfare of the country, and with
no reference to mere rumors or reports. There I agree with my friend;
but then I do not agree with him, when he says, Give the President
another chance. We have been giving him chances, and we cannot act now
without taking into consideration his character and position, which
have become matters of history. I would speak with proper delicacy,
with proper reserve, but I must speak under the responsibility of
a Senator. A large portion of our country believe the President a
wicked man, of evil thoughts and unpatriotic purposes, in spirit and
conduct the successor of Jefferson Davis, through whom the Rebellion is
revived. Such are the sentiments of a large portion of our people.
MR. DIXON [of Connecticut]. I desire to ask the Senator if that
is the opinion of a majority of the American people, in his
judgment.
MR. SUMNER. It is unquestionably the opinion of a large portion of
the people of the United States; whether a majority or not the future
may disclose. I will not anticipate any such judgment. I speak now
with reference to what is before us. The question is, whether we shall
give him another opportunity. I say, No. And here I act on no floating
rumor, to which the Senator from Illinois refers; I act with reference
to the character of the chief magistrate, displayed in his public
conduct. It seems to me that it will be something like rashness, if the
Senate concede to him another occasion to practise on the country in
carrying out his policy, as we know he has practised in times past.
We must stop the way. We should not give him a day; we should not give
him five minutes,--I am ready to say that,--not five minutes, for the
chance of illegitimate power. I will not allow him to exercise it, and
then take my chance hereafter of applying the corrective.
And that brings me to the exact point as to whether the present session
should expire precisely when the coming session begins. I see no reason
why it should not. I see no reason why we should interpose the buffer
even of five minutes. Let one session come close upon the other, and
then we shall exclude every possibility of evil consequences. In
France, during the old monarchy, when the king died, the moment the
breath was out of his body the reign of his successor began, so that
the cry, “The king is dead,” was followed instantly by another cry,
“Long live the king!” Now I know not why, when this session expires,
we may not at the same time announce its expiration and announce a new
session.
The resolution was agreed to, and Congress adjourned
accordingly.
THE FOURTEENTH AMENDMENT: WITHDRAWAL OF ASSENT BY A STATE.
REMARKS IN THE SENATE, ON THE RESOLUTIONS OF THE LEGISLATURE OF OHIO
RESCINDING ITS FORMER RESOLUTION IN RATIFICATION OF THE FOURTEENTH
AMENDMENT, JANUARY 31, 1868.
The resolutions from the Legislature of Ohio are so important in
character, and so wholly without precedent, I believe, in our history,
that I think they justify remark even by a Senator who has not the
honor of any special association with that State.
It seems to me very clear that the authors of these resolutions have
accomplished nothing except to exhibit their own blind prejudices. By
the Constitution of the United States, a State may give its assent to
a Constitutional Amendment. There is no provision for any withdrawal
of such assent, when once given. The assent of the State, once given,
is final. A State, I do not hesitate to say, can no more withdraw
such assent than it can withdraw from the Union; and on the latter
proposition I believe there is now a universal accord.
But, happily, Sir, this extraordinary effort of an accidental
Legislature is absolutely impotent. The Amendment in question is
already a part of the Constitution of the United States, and in full
vigor, even without the assent of Ohio. By a report from the Secretary
of State it appears that there is official evidence of the assent of
the Legislatures of Connecticut, New Hampshire, Tennessee, New Jersey,
Oregon, Vermont, New York, Illinois, West Virginia, Kansas, Nevada,
Missouri, Indiana, Minnesota, Rhode Island, Wisconsin, Pennsylvania,
Michigan, Massachusetts, and Nebraska,--being twenty in all, without
Ohio. To these now we may add Iowa, which has given its assent very
recently, and also Maine, which has notoriously given its assent,
although I understand it has not been officially communicated to
the Department of State,--making, therefore, twenty-two States,
even without Ohio. Twenty-two States are more than three fourths of
the Loyal States, or, in other words, of those States that at this
moment have Legislatures. The full requirement of the Constitution is
therefore met.
This Amendment was originally proposed by a vote of two thirds of
Congress, composed of the representatives of the Loyal States. It
has now been ratified by the Legislatures of three fourths of the
Loyal States, being the same States which originally proposed it
through their representatives in Congress. The States that are
competent to propose a Constitutional Amendment are competent to adopt
it. Both things have been done. The required majority in Congress
have proposed it; the required majority of States have adopted it.
Therefore, I say, this resolution of the Legislature of Ohio is _brutum
fulmen_,--impotent as words without force. It can have no practical
effect, except to disclose the character of its authors. As such it may
be dismissed to the limbo of things lost on earth.
Mr. Johnson, of Maryland, followed with some remarks, to which
Mr. Sumner replied:--
MR. PRESIDENT,--I wish to remind the Senator from Maryland of the exact
words of the Constitution, which were not, it seems to me, in his
mind when he spoke. An Amendment, when proposed, “shall be valid to
all intents and purposes as part of this Constitution, when ratified
by the Legislatures of three fourths of the several States.” It does
not say, “when ratified by three fourths of the several States,” but
“by the ‘Legislatures’ of three fourths of the several States.” Now,
if there are States without Legislatures, they can have no voice in
the ratification. Apply this practically. Three fourths of the actual
Legislatures of this Union have ratified the proposed Amendment, and
I insist, on the text of the Constitution, and also on the reason
of the case, that such ratification is complete. But I am unwilling
that this argument should stand merely on my words. I introduce here
the authority of the best living text-writer on the jurisprudence
of our country, who has treated this very point in a manner which
leaves no opportunity for reply. I refer to the book of Mr. Bishop
on the Criminal Law, who, in one of his notes,[81] considers whether
the Amendment of the Constitution abolishing Slavery had been at the
time he wrote adopted in a constitutional manner. Of course the very
question which we are now discussing with reference to the Fourteenth
Amendment arises also on the Amendment prohibiting Slavery. They are
both in the same predicament. If the Fourteenth Amendment is not now
a part of the Constitution of the United States, then the Amendment
prohibiting Slavery is not a part of the Constitution of the United
States. They both stand on the same bottom; they were both proposed by
Congress in the same way,--that is, by a vote of two thirds of the
representatives of the Loyal States; and they have both been ratified
by the votes of three fourths of the States having Legislatures. I send
to the Chair the work of Mr. Bishop, and I ask the Secretary to be good
enough to read what I have marked.
The Secretary read the note above cited.
LOYALTY IN THE SENATE: ADMISSION OF A SENATOR.
REMARKS IN THE SENATE, ON THE RESOLUTION TO ADMIT PHILIP F. THOMAS AS
SENATOR FROM MARYLAND, FEBRUARY 13, 1868.
February 13th, the question of the admission of Hon. Philip F.
Thomas, Senator-elect from Maryland, charged with disloyalty,
coming up for consideration, on a resolution of Hon. Reverdy
Johnson, of that State, that said Thomas “be admitted to his
seat on his taking the oaths prescribed by the Constitution
and laws of the United States,” Mr. Sumner moved the following
substitute:--
“That Philip F. Thomas, Senator-elect from Maryland, cannot
be admitted to take the oaths of office required by the
Constitution and laws, inasmuch as he allowed his minor son
to leave the paternal house to serve as a Rebel soldier,
and gave him at the time one hundred dollars in money, all
of which was ‘aid,’ ‘countenance,’ or ‘encouragement’ to
the Rebellion, which he was forbidden to give; and further,
inasmuch as in forbearing to disclose and make known the
treason of his son to the President, or other proper
authorities, according to the requirement of the statute
in such cases, he was guilty of misprision of treason as
defined by existing law.”
Mr. Sumner said:--
A great debate on the question how loyalty shall be secured in the
Rebel States is for the time silenced in order to consider how loyalty
shall be secured in this Chamber. Everywhere in the Rebel States
disloyal persons are struggling for power; and now at the door of the
Senate we witness a similar struggle. If disloyalty cannot be shut out
of this Chamber, how can we hope to overcome it elsewhere?
More than once at other times I have discussed the question of
loyalty in the Senate. But this was anterior to the adoption of the
Fourteenth Constitutional Amendment. The case is plainer now than
then, inasmuch as there is now an explicit text requiring loyalty as a
“qualification.” Formerly we were left to something in the nature of
inference; now the requirement is plain as language can make it.
By the new Amendment it is provided that “no person shall be a Senator
or Representative in Congress, … who, having previously taken an oath,
as a member of Congress, or as an officer of the United States, … to
support the Constitution of the United States, shall have engaged in
insurrection or rebellion against the same, or given aid or comfort to
the enemies thereof.”
These words are precisely applicable to the present case. They lay down
a rule from which there is no appeal; and this rule is not merely in
the statutes, but in the Constitution. It is the plain declaration that
loyalty is a requirement in a Senator and Representative. If we do not
apply it to ourselves now, it is difficult to see with what consistency
we can apply it to others. Your course here will affect the meaning of
this Constitutional Amendment, if not its validity for the future.
I do not stop to argue the question if that Amendment is now a part
of the Constitution; for I would not unnecessarily occupy your time,
nor direct attention from the case which you are to decide. For the
present I content myself with two remarks: first, the Amendment has
already been adopted by three fourths of the States that took part in
proposing it, and this is enough, for the spirit of the Constitution
is thus satisfied; and, secondly, it has already been adopted by “the
_Legislatures_ of three fourths of the several States” which have
Legislatures, thus complying with the letter of the Constitution.
Therefore, by the spirit of the Constitution, and also by its letter,
this Amendment is now a part of the Constitution, binding on all of
us. As such I invoke its application to this case. In face of this
positive, peremptory requirement, it is impossible to see how loyalty
can be other than a “qualification.” In denying it, you practically set
aside this Amendment.
But, even without this Amendment, I cannot doubt that the original
text is sufficiently clear and explicit. It is nowhere said in the
Constitution that certain specified requirements, and none others,
shall be “qualifications” of Senators. This word “qualifications,”
which plays such a part in this case, occurs in another connection,
where it is provided that “each House shall be the judge of the
elections, returns, and _qualifications_ of its own members.” What
these “qualifications” may be is to be found elsewhere. Searching the
Constitution from beginning to end, we find three “qualifications,”
which come under the head of _form_, being (1.) age, (2.) citizenship,
and (3.) inhabitancy in the State. But behind and above these is
another “qualification,” which is of _substance_, in contradiction
to _form_ only. So supreme is this, that it is placed under the
safeguard of an oath. This is loyalty. It is easy to see how infinitely
more important is this than either of the others,--than age, than
citizenship, or than inhabitancy in the State. A Senator failing in
either of these would be incompetent by the letter of the Constitution;
but the Republic might not suffer from his presence. On the other
hand, a Senator failing in loyalty is a public enemy, whose presence in
this council-chamber would be a certain peril to the Republic.
It is vain to say that loyalty is not declared to be a “qualification.”
I deny it. Loyalty is made a “qualification” in the Amendment to the
Constitution; and then again in the original text, when, in the most
solemn way possible, it is distinguished and guarded by an oath.
Men are familiarly said to “qualify,” when they take the oath of
office; and thus the language of common life furnishes an authentic
interpretation of the Constitution.
But no man can be allowed to take the oath as Senator, when, on
the evidence before the Senate, he is not competent. If it appear
that he is not of sufficient age, or of the required citizenship or
inhabitancy, he cannot be allowed to go to that desk. Especially if it
appear that he fails in the all-important “qualification” of loyalty,
he cannot be allowed to go to that desk. A false oath, taken with our
knowledge, would compromise the Senate. We who consent will become
parties to the falsehood; we shall be parties in the offence. It is
futile to say that the oath is one of purgation only, and that it is
for him who takes it to determine on his conscience if he can take it.
The Senate cannot forget the evidence; nor can its responsibility in
the case be swallowed up in any process of individual purgation. On the
evidence we must judge, and act accordingly. The “open sesame” of this
Chamber must be something more than the oath of a suspected applicant.
According to Lord Coke, “an infidel cannot be sworn” as a witness. This
was an early rule, which has since been softened in our courts. But,
under the Constitution of the United States and existing statutes, a
_political infidel_ cannot be sworn as a Senator. Whatever may be his
inclination or motive, he must not be allowed to approach your desk.
The country has a right to expect that all who enter here shall have
a sure and well-founded loyalty, above all question or suspicion. And
such, I insist, is the rule of the Constitution and of Congress.
As if to place the question beyond all doubt, Congress by positive
enactment requires that every Senator, before admission to his seat,
shall swear that he has “voluntarily given no aid, countenance,
counsel, or encouragement to persons engaged in armed hostility” to the
United States.[82] Here is little more than an interpretation of the
Constitution. The conclusion is plain. No person who has voluntarily
given even “countenance” or “encouragement” to another engaged in the
Rebellion can be allowed to take that oath.
After this statement of the rule, the question arises, if Philip F.
Thomas can be permitted to take the oath at your desk, or, in other
words, to “qualify” as a Senator of the United States. Is he competent?
This is a question of evidence.
The ample discussion of the facts in this case, and their singular
plainness, supersede the necessity of all details. The atmosphere about
Mr. Thomas and his acts are harmonious. From the beginning we find him
enveloped in coldness and indifference while his country was in peril.
Observing him more closely, we are shocked by two acts of positive
disloyalty, one of which is the natural prelude of the other. The
first muttering of the Rebellion found him a member of the Cabinet of
Mr. Buchanan; but when this uncertain President proposed the succor of
our troops at Charleston, already menaced with war, Mr. Thomas withdrew
from the patriotic service. He resigned his seat, following the lead of
Cobb, Thompson, and Floyd. A man is known by the company he keeps. His
company at this time were traitors, and the act they united in doing
was essentially disloyal. As the Rebellion assumed the front of war,
they all abandoned their posts: some to join the Rebellion and mingle
with its armies; Mr. Thomas, more prudently, to watch the course of
events in Maryland, ready to lift his arm also, if his State pronounced
the word. This concerted desertion was in itself a conspiracy against
the Government; and in the case of Mr. Thomas, who was Secretary of
the Treasury, it was a blow at the national credit, which it was his
special duty to guard. It was an act of disloyalty to be blasted by
indignant history, even if your judgment fails now. And this was the
first stage in this record.
Meanwhile the war rages. Armies are marshalled; battles ensue;
Washington itself is beleaguered; the Republic trembles with peril.
But Mr. Thomas continues in the seclusion of his home, enveloped
in the same disloyal atmosphere, and refusing always the oath of
allegiance. At last, in 1863, an only son arrives at the age of
eighteen. Though still a minor, he is already of the military age.
Naturally filled with the sentiments of his father’s fireside, he
seeks to maintain them by military service. He is like his father, but
with the ardor of youth instead of the caution of years. He avows
his purpose to enlist in the Rebel army, thus to levy war against his
country, and adhere to its enemies. All this was treason,--plain,
palpable, unquestionable, downright treason. Instead of detaining his
son,--instead of keeping him back,--instead of interposing a paternal
veto,--instead of laying hands gently upon him,--instead of denouncing
him to the magistrate,--all of which the father might have done,--he
deliberately lets him go, and then, to cap the climax of criminal
complicity, furnishes the means for his journey and his equipment. He
gives one hundred dollars. The father is not rich, and yet he gives
this considerable sum. Few soldiers started with such ample allowance.
Thus it stands: the father, who has already deserted his post in the
Cabinet, and has refused to take the oath of allegiance to his country,
contributes a soldier to the Rebellion, and that soldier is his only
son; to complete and assure the great contribution, he contributes a
sum of money also. If all this accumulated disloyalty, beginning in a
total renunciation of every patriotic duty, and finally consummated
by an act of flagrant, unblushing enormity, is not “aid and comfort”
or “countenance” or “encouragement” to the Rebellion, it is difficult
to say what can be. There must be new dictionaries for these familiar
words, and they must receive a definition down to this day unknown.
They must be treated as thread or gossamer, when they should be links
of iron.
On an occasion like the present, where the moral guilt is so patent,
I hesitate to employ technical language. The simplest phrase is the
best. But the law supplies language of its own. Regarding the act of
Mr. Thomas in the mildest light, it was “misprision of treason,”
according to every definition of that crime which can be found in the
books. Lord Hale, whose authority, in stating the rules of Criminal
Law, is of the highest character, says, under this head: “Every man is
bound to use all possible lawful means to prevent a felony, as well
as to take the felon; and if he doth not, he is liable to a fine and
imprisonment.”[83] Lord Coke, another eminent authority, says: “If
any be present when a man is slain, and omit to apprehend the slayer,
it is a misprision.”[84] The same rule is, of course, applicable to
treason. Mr. Bishop, who in his remarkable work on the Criminal Law
has compressed the result of all the authorities, says: “Misprision of
felony is a criminal neglect, either to prevent a felony from being
committed by another, or to bring to justice a person known to be
guilty of felony. Misprision of treason is the same of treason.”[85]
Then again he says, citing Hawkins, Blackstone, East, and Russell, all
familiar names in our courts, each an oracle:--
“The doctrine of misprision, as now understood, may be stated
as follows: To make a man liable for a crime committed through
the physical volition of another, his own will must in some
degree concur in or contribute to the crime. _But when it is
treason or felony, and he stands by while it is done, without
using the means in his power to prevent it, though his will
concurs not in it,--or when he knows of its having been in
his absence committed, but neither makes disclosure of it to
the authorities nor does anything to bring the offender to
punishment_,--the law holds him guilty of a breach of the duty
due from every man to the community wherein he dwells and the
government which protects him.”[86]
I adduce these authorities in order to show, that, by the Common Law,
as illustrated by some of its best names, Mr. Thomas is beyond all
question an offender. Clearly he did not use “the means in his power”
to prevent the treason of his son, nor did he “make disclosure of it to
the authorities,” according to the received rule of law.
But the statutes of the United States leave us no room for doubt
or indulgence. According to the precise text, the present case is
anticipated and provided for. The Statute of Crimes, adopted in
1790, at the beginning of the National Government, after declaring
the punishment of treason, proceeds to declare the punishment of
“misprision of treason,” as follows:--
“That, if _any person or persons, having knowledge of the
commission of any of the treasons aforesaid, shall conceal and
not as soon as may be disclose and make known the same_ to
the President of the United States or some one of the Judges
thereof, or to the President or Governor of a particular State
or some one of the Judges or Justices thereof, _such person or
persons, on conviction, shall be adjudged guilty of misprision
of treason_, and shall be imprisoned not exceeding seven years,
and fined not exceeding one thousand dollars.”[87]
Apply these plain words to the present case. Nobody can doubt that
Mr. Thomas had “knowledge” of the treason of his son, and, having
this knowledge, failed to “disclose and make known the same” to the
President of the United States or the other proper authorities. Abraham
Lincoln was at the time President. There is no pretence that the
father communicated the crime of the son to this patriot magistrate,
or to any other loyal officer by whom he could have been arrested.
Therefore, beyond all question, on the facts of the case, the father
is guilty under the statute, and liable to seven years of imprisonment
and a fine of one thousand dollars. And now, instead of seven years of
imprisonment and a fine of one thousand dollars, it is proposed to give
him six years of trust and honor as a Senator of the United States,
with an annual allowance of five thousand dollars.
According to the old law, the indictment against Mr. Thomas would
allege, that, “not having the fear of God before his eyes, but being
moved and seduced by the instigation of the Devil,” he perpetrated his
crime. And now, with this crime unatoned for, he comes here to ask your
support and countenance. We are to forget all that he did, “moved and
seduced” by evil instigation, and welcome him to this Chamber, instead
of handing him over to judgment.
It is treating this case with a levity which it is hard to pardon,
when Senators argue that the father was not under obligations to
exercise all the paternal power in restraint of his son, or at least
in denouncing him to the proper authorities. What is patriotism, what
is the sacred comprehensive charity of country, if a father can be
blameless after such a license to his son? The country was another
mother to this son, and he went away to strike this mother on the
bosom. There is a case in antiquity which illustrates the solemn duty
of the father at least to detain the son. I quote from Sallust. This
remarkable writer, in his history of the Catilinarian conspiracy,
tells us that there were many not enlisted in the conspiracy who went
out to join Catiline; that among these was Aulus Fulvius, the son of
a Senator; and the historian adds, without comment, that the father,
when his son was brought back, ordered him to be slain: “_Fuere tamen
extra conjurationem complures, qui ad Catilinam profecti sunt: in his
A. Fulvius, Senatoris filius; quem retractum ex itinere parens necari
jussit_.”[88] Humanity rejects the barbarous exercise of the paternal
power according to the Roman Law; but patriotism may find even in this
example a lesson of paternal duty. The American father should not have
slain his son, but he should have kept him from joining the enemies of
his country. This requirement of duty was none the less strong because
not enforced by death. I utter not only the rule of patriotism, but the
rule of law, when I say that it was positive and peremptory. I will not
admit that an American citizen can be blameless who dismisses a son
from the paternal roof with money in his purse, to make war upon his
country. All that the son did afterward, all that the son sought to
do, became the act of the father who sent him forth on his parricidal
errand. The father’s treason was continued and protracted in the
treason of the son.
In making this contribution to the Rebellion, the act of the father
was enhanced by his eminent position. He had held a seat in the
Cabinet, binding him more than any common citizen to the most watchful
allegiance, and giving to what he did peculiar importance. A soldier
contributed to the Rebellion by such a person was a startling event.
It was aid and comfort, countenance and encouragement, of far-reaching
significance. It was a hostile act, directly injurious to his country,
and of evil example, the influence of which no man can measure. How
many others were weakened in loyalty by this parricidal act who can
tell? When the citizen who has enjoyed public trust and been a “pillar
of State” gives way, others about him must fall likewise. So great a
parricide must cause other parricides.
And now this father, who gave a son to the Rebellion, comes into this
sanctuary of the Constitution, where loyalty is the first condition of
admission, and asks for a seat. _Immo in Senatum venit._ Is there not
hardihood in the application? Of course, he cannot be admitted without
your act having an influence proportioned to the importance of the
position. It will be felt everywhere throughout the country. Admit him,
and you will unloose the bonds of loyalty and give a new license to the
Rebellion in its protracted struggle. On the contrary, if you send him
away, you will furnish a warning to the disloyal, and teach a lesson of
patriotism which will thrill the hearts of good citizens now anxiously
watching for peace and reconciliation through the triumph of loyalty.
I speak this positively, because on this case I see no doubt. The facts
are indisputable, and over all towers one supreme act of parricide,
for which there can be no excuse or apology. A soldier was contributed
to the enemies of his country. There is no question of motive. The
parricidal act was complete, and it explains itself. There is no
doubt that it was done. In the presence of such an act, so absolutely
criminal, there can be no room for inquiry as to the motive. All this I
put aside and look only at the transcendent fact, in which all pretence
of innocence is so entirely lost and absorbed that it cannot be seen.
As well seek to find a motive, if a son struck at the bosom of his
mother. The law supplies the motive, when it says, in its ancient
phrase, “moved and seduced by the instigation of the Devil.”
Some there are who doubt the motive of the father, and claim for him
now the benefit of that doubt. Even if the motive of this criminal act
were in question, as I insist that it cannot be, then do I say, that,
in a case like this, when disloyalty is to be shut out of this Chamber,
I give the benefit of doubt to my country.
There is another voice which sometimes reaches me. We are told, that,
if the applicant be disloyal, then we may expel him. For myself, I
prefer to take no such risk. Viewing the case as I do, I have no right
to take any such risk. Disloyalty must be met at the door, and not
allowed to enter in. The old verses, more than once repeated in our
public discussions, are applicable now,--never more so:--
“I hear a lion in the lobby roar:
Say, Mr. Speaker, shall we shut the door,
And keep him there? or shall we let him in,
To try if we can turn him out again?”[89]
February 19th, after a debate of several days, Mr. Thomas was
declared “not entitled to take the oath of office, or to hold a
seat, as a Senator of the United States,”--Yeas 27, Nays 20.
INTERNATIONAL COPYRIGHT.
LETTER TO A COMMITTEE IN NEW YORK, ON THIS SUBJECT, FEBRUARY 17, 1868.
From time to time International Copyright has occupied
attention, and Mr. Sumner has often in correspondence expressed
himself with regard to it. The following letter, in answer
to an inquiry, was published by a New York committee of the
following gentlemen: George P. Putnam, S. Irenæus Prime, Henry
Ivison, James Parton, Egbert Hasard.
SENATE CHAMBER, February 17, 1868.
MY DEAR SIR,--Pardon my delay. There are two ways of dealing
with the question of International Copyright,--one by the treaty
power, and the other by reciprocal legislation.
I have always thought that the former was the easier, but at the
present moment the House of Representatives is not disposed to
concede much to the treaty power.
Mr. Everett, while Secretary of State, negotiated a treaty
on this subject with Great Britain, which was submitted to
the Senate, reported by the Committee on Foreign Relations,
considered in the Senate, and finally left on the table, without
any definitive vote.
I shall send you a copy of this treaty, which, I believe, has
never seen the light.
I have always been in favor of an International Copyright, as
justice to authors and a new stage in the unity of nations.
Perhaps the condition of public affairs at this time, the
preoccupation of the public mind, the imminence of the
Presidential election, and also the alienation from England, may
present temporary obstacles. But I am sanguine that at last the
victory will be won. If authors should have a copyright anywhere,
they should have it everywhere within the limits of civilization.
Accept my best wishes, and believe me, dear Sir,
Faithfully yours,
CHARLES SUMNER.
JAMES PARTON, ESQ., Secretary of the Committee.
THE IMPEACHMENT OF THE PRESIDENT.
THE RIGHT OF THE PRESIDENT OF THE SENATE PRO TEM. TO VOTE.
REMARKS IN THE SENATE, ON THE QUESTION OF THE COMPETENCY OF MR. WADE,
SENATOR FROM OHIO, THEN PRESIDENT OF THE SENATE PRO TEM., TO VOTE ON
THE IMPEACHMENT OF PRESIDENT JOHNSON, MARCH 5, 1868.
MR. PRESIDENT,--I shall not attempt to follow learned Senators in the
question whether this is a Senate or a Court. That question, to my
mind, is simply one of language, and not of substance. Our powers at
this moment are under the Constitution of the United States; nor can we
add to them a tittle by calling ourselves a Court or calling ourselves
a Senate. There they are in the Constitution. Search its text and you
will find them. The Constitution has not given us a name, but it has
given us powers; and those we are now to exercise. The Senate has the
sole power to try impeachments. No matter for the name, Sir. I hope
that I do not use an illustration too familiar, when I remind you that
a rose under any other name has all those qualities which make it the
first of flowers.
I should not at this time have entered into this discussion, if I had
not listened to objections on the other side which seem to me founded,
I will not say in error, for that would be bold when we are discussing
a question of so much novelty, but I will say founded in a reading of
history which I have not been able to verify. Senator after Senator
on the other side, all distinguished by ability and learning, have
informed us that the Constitution intended to prevent a person who
might become President from presiding at the trial of the President. I
would ask learned Senators who have announced this proposition, where
they find it in the Constitution. The Constitution says:--
“When the President of the United States is tried, the Chief
Justice shall preside.”
This is all; and yet on this simple text the superstructure of Senators
has been reared.
The Constitution does not proceed to say why the Chief Justice shall
preside; not at all; nothing of the kind. Senators supply the reason,
and then undertake to apply it to the actual President of the Senate.
Where, Sir, do they find the reason? They cannot find the reason which
they now assign in any of the contemporary authorities illustrating
the Constitution; they cannot find it in the debates of the National
Convention reported by Madison, or in any of the debates in the States
at that time; nor can they find it in the “Federalist.” When does that
reason first come on the scene? Others may be more fortunate than I;
but I have not been able to find it earlier than 1825, nearly forty
years after the formation of the Constitution, in the Commentaries of
William Rawle. We all know the character of this work,--one of great
respectability, and which most of us in our early days have read and
studied. How does he speak of it? As follows:--
“The Vice-President, being the President of the Senate,
presides on the trial, except when the President of the
United States is tried. As the Vice-President succeeds to the
functions and emoluments of the President of the United States,
whenever a vacancy happens in the latter office, it would be
inconsistent with the implied purity of a judge that a person
under a probable bias of such a nature should participate in
the trial, and it would follow that he should wholly retire
from the court.”[90]
Those are the words of a commentator on the Constitution. They next
appear eight years later, in the Commentaries of Mr. Justice Story.
After citing the provision, “When the President of the United States
is tried, the Chief Justice shall preside,” the learned commentator
proceeds:--
“The reason of this clause has been already adverted to. It
was to preclude the Vice-President, who might be supposed
to have a natural desire to succeed to the office, from
being instrumental in procuring the conviction of the Chief
Magistrate.”[91]
And he cites in his note “Rawle on the Constitution, ch. 22, p.
216,”[92] being the very passage that I have just read. Here is the
first appearance of this reason, which is now made to play so important
a part, being treated even as a text of the Constitution itself. At
least I have not been able to meet it at an earlier day.
If you repair to the contemporary authorities, including the original
debates, you will find no such reason assigned,--nothing like it,--not
even any suggestion of it. On the contrary, you will find Mr. Madison,
in the Virginia Convention, making a statement which explains in the
most satisfactory manner the requirement of the Constitution.[93] No
better authority could be cited. Any reason supplied by him anterior to
the adoption of the Constitution must be of more weight than any _ex
post facto_ imagination or invention of learned commentators.
If we trust to the lights of history, the reason for the introduction
of this clause in the Constitution was because the framers of the
Constitution contemplated the possibility of the suspension of
the President from the exercise of his powers, in which event the
Vice-President could not be in your chair, Sir. If the President were
suspended, the Vice-President would be in his place. The reports
will verify what I say. If you refer to the debates of the National
Convention, under the date of Friday, September 14, 1787, you will find
the following entry, which I read now by way of introduction to what
follows at a later date, on the authority of Mr. Madison himself.
“Mr. Rutledge and Mr. Gouverneur Morris moved ‘that persons
impeached be suspended from their offices until they be tried
and acquitted.’
“MR. MADISON. The President is made too dependent already
on the Legislature by the power of one branch to try him in
consequence of an impeachment by the other. This intermediate
suspension will put him in the power of one branch only. They
can at any moment, in order to make way for the functions of
another who will be more favorable to their views, vote a
temporary removal of the existing magistrate.
“Mr. King concurred in the opposition to the amendment.”[94]
The proposition was rejected by the decisive vote of eight States
in the negative to three in the affirmative. We all see, in reading
it now, that it was rejected on good grounds. It would obviously be
improper to confer upon the other branch of Congress the power, by its
own vote, to bring about a suspension of the Chief Magistrate. But
it did not follow, because the Convention rejected the proposition
that a suspension could take place on a simple vote of the House
of Representatives, that therefore the President could not be
suspended. When the Senate was declared to have the sole power to
try impeachments, it was by necessary implication invested with the
power, incident to every court, and known historically to belong to
the English court of impeachment, from which ours was borrowed, of
suspending the party accused. All this was apparent at the time, if
possible, more clearly than now. It was so clear, that it furnishes an
all-sufficient reason for the provision that the Chief Justice should
preside on the trial of the President, without resorting to the later
reason which has been put forward in this debate.
But we are not driven to speculate on this question. While the
Constitution was under discussion in the Virginia Convention, George
Mason objected to some of the powers conferred upon the President,
especially the pardoning power. This was on June 18, 1788, and will be
found under that date in the reports of the Virginia Convention. This
earnest opponent of the Constitution said that the President might
“pardon crimes which were advised by himself,” and thus further his own
ambitious schemes. This brought forward Mr. Madison, who had sat, as
we all know, throughout the debates of the National Convention, and
had recorded its proceedings, and who, of all persons, was the most
competent to testify at that time as to the intention of the framers.
What said this eminent authority? I give you his words:--
“There is one security in this case to which gentlemen may not
have adverted. If the President be connected in any suspicious
manner with any person, and there be grounds to believe he will
shelter him, the House of Representatives can impeach him;
they”--
evidently referring to the Senate, or the Senate in connection with the
House--
“can remove him, if found guilty; _they can suspend
him, when suspected_, and the power will devolve on the
Vice-President.”[95]
Mark well these words,--“they can suspend him, when suspected.” If only
suspected, the President can be suspended. What next? “And his power
will devolve on the Vice-President.” In which event, of course, the
Vice-President would be occupied elsewhere than in this Chamber.
Those were the words of James Madison, spoken in debate in the Virginia
Convention. Taken in connection with the earlier passage in the
National Convention, they seem to leave little doubt with regard to the
intention of the framers of the Constitution. They were unwilling to
give to the other House alone the power of suspension; but they saw,
that, when they authorized the Senate to try impeachments, they gave to
it the power of suspension, if it should choose to exercise it; and the
suspension of the President necessarily involved the withdrawal of the
Vice-President from this Chamber, and the duty of supplying his place.
I submit, then, on the contemporary testimony, that the special reason
why the Chief Justice is called to preside, when the President is on
trial, is less what learned Senators have assigned than because the
Vice-President under certain circumstances would not be able to be
present. It was to provide for such a contingency, being nothing less
than his necessary absence in the discharge of the high duties of Chief
Magistrate, that a substitute was necessary, and he was found in the
Chief Justice. All this was reasonable. It would have been unreasonable
not to make such a provision.
But this is not all. There is an incident, immediately after the
adoption of the Constitution, which is in harmony with this authentic
history. The House of Representatives at an early day acted on the
interpretation of the Constitution given by Mr. Madison. The first
impeachment, as we all know, was of William Blount, a Senator, and in
impeaching him the House of Representatives demanded that he should “be
sequestered from his seat in the Senate.” This was in 1797. The Senate
did not comply with this demand; but the demand nevertheless exists in
the history of your Government, and it illustrates the interpretation
which was given at that time to the powers of the Senate. The language
employed, that the person impeached should be “sequestered,” is the
traditional language of the British Constitution, constantly used, and
familiar to our fathers. In employing it, the House of Representatives
gave their early testimony that the Senate could suspend from his
functions any person impeached before them; and thus the House of
Representatives unite with Madison in supplying a sufficient reason
for the provision that on the trial of the President the Chief Justice
shall preside.
In abandoning the reason which I have thus traced to contemporary
authority, you launch upon an uncertain sea. You may think the reason
assigned by the commentators to be satisfactory. It may please your
taste; but it cannot be accepted as an authentic statement. If the
original propositions were before me, I should listen to any such
suggestion with the greatest respect. I do not mean to say now, that,
as a general rule, it has not much in its favor; but I insist, that,
so far as we are informed, the reason of the commentators was an
afterthought, and that there was another reason which sufficiently
explains the rule now under consideration.
I respectfully submit, Sir, that you cannot proceed in the
interpretation of this text upon the theory adopted by the learned
Senators over the way. You must take the text as it is. You cannot go
behind it; you cannot extend it. Here it is: “When the President of
the United States is tried, the Chief Justice shall preside.” That
is the whole, Sir. “The Chief Justice shall preside.” No reason is
assigned. Can you assign a reason? Can you supply a reason? Especially
can you supply one which is not sustained by the authentic contemporary
history of the Constitution, and particularly when you have authentic
contemporary history which supplies another reason? Unless I am much
mistaken, this disposes of the objection, proceeding from so many
Senators, that the Senator from Ohio cannot take the oath because he
may possibly succeed to the President now impeached at your bar.
He may vote or not, as he pleases; and there is no authority in the
Constitution, or any of its contemporary expounders, to criticize him.
* * * * *
This is all, Sir, I have to say at this time on this head. There were
other remarks made by Senators over the way to which I might reply.
There was one that fell from my learned friend, the Senator from
Maryland, [Mr. JOHNSON,] in which he alluded to myself. He represented
me as having cited many authorities from the House of Lords, tending
to show, in the case of Mr. Stockton, that this person at the time was
not entitled to vote on the question of his seat. The Senator does
not remember that debate, I think, as well as I do. The point which I
tried to present to the Senate, and which, I believe, was affirmed by
a vote of the body, was simply this: that a man cannot sit as a judge
in his own case. That was all,--at least so far as I recollect; and I
submitted that Mr. Stockton at that time was a judge undertaking to
sit in his own case.[96] Pray, Sir, what is the pertinency of this
citation? Is it applicable at all to the Senator from Ohio? Is his case
under consideration? Is he impeached at the bar of the Senate? Is he in
any way called in question? Is he to answer for himself? Not at all.
How, then, does the principle of law, that no man shall sit as a judge
in his own case, apply to him? How does the action of the Senate in the
case of Mr. Stockton apply to him? Not at all. The two cases are as
wide as the poles asunder. One has nothing to do with the other.
Something has been said of the “interest” of the Senator from Ohio
on the present occasion. “Interest”! This is the word used. We are
reminded that in a certain event the Senator may become President,
and that on this account he is under peculiar temptations, which may
swerve him from justice. The Senator from Maryland went so far as to
remind us of the large salary to which he might succeed,--not less
than twenty-five thousand dollars a year,--and thus added a pecuniary
temptation to the other disturbing forces. Is not all this very
technical? Does it not forget the character of this great proceeding?
Sir, we are a Senate, and not a Court of _Nisi Prius_. This is not
a case of assault and battery, but a trial involving the destinies
of this Republic. I doubt if the question of “interest” is properly
raised. I speak with all respect for others, but I submit that it is
inapplicable. It does not belong here. Every Senator has his vote, to
be given on his conscience. If there be any “interest” to sway him,
it must be that of justice, and the safety of the country. Against
these all else is nothing. The Senator from Ohio, whose vote is now
in question, can see nothing but those transcendent interests by the
side of which office, power, and money are of small account. Put in
one scale these interests, so dear to the heart of the patriot, and in
the other all the personal temptations which have been imagined, and I
cannot doubt, that, if the Senator from Ohio holds these scales, the
latter will kick the beam.
THE CHIEF JUSTICE, PRESIDING IN THE SENATE, CANNOT RULE OR VOTE.
OPINION IN THE CASE OF THE IMPEACHMENT OF ANDREW JOHNSON, PRESIDENT OF
THE UNITED STATES, MARCH 31, 1868.
In the course of this trial there was an important claim of
power by the Chief Justice, as presiding officer of the Senate,
on which at the time Mr. Sumner expressed his opinion to the
Senate, when it withdrew for consultation. As this claim was
calculated in certain contingencies to affect the course of
proceedings, possibly the final judgment, and as it might
hereafter be drawn into a precedent, Mr. Sumner was unwilling
to lose this opportunity of recording his reasons against it.
In determining the relations of the Chief Justice to the trial of the
President, we must look, first, to the National Constitution; for it
is solely by virtue of the National Constitution that this eminent
magistrate is transported from his own natural field to another, where
he is for the time an exotic. The Chief Justice in his own court is at
home; but it is equally clear, that, when he comes into the Senate, he
is a stranger. Though justly received with welcome and honor, he cannot
expect membership, or anything beyond the powers derived directly from
the National Constitution, by virtue of which he temporarily occupies
the Chair.
Repairing to our authoritative text, we find the only applicable
words:--
“The Senate shall have the sole power to try all impeachments.…
When the President of the United States is tried, the Chief
Justice shall _preside_: and no person shall be convicted
without the concurrence of two thirds of the members present.”
This is all. The Chief Justice shall _preside_, but subject to two
limitations specifically declared. First, the trial is to be by the
Senate _solely_, and nobody else,--thus carefully excluding the
presiding officer from all participation, except so far as is implied
in the power to preside; and, secondly, judgment of conviction can be
only by a vote of “two thirds of _the members present_,”--thus again
excluding the presiding officer, unless it is assumed that he is a
member of the Senate.
On the face of this text it is difficult to find ambiguity. Nobody
questions that the Chief Justice must preside. Can anybody question
that the trial must be by the Senate solely, and nobody else? To change
this requirement is to fly in the face of the National Constitution.
Can anybody question that the judgment of conviction must be by votes
of “members present,” and nobody else? Now, since the Chief Justice
is not a “member” of the Senate, it is plain that he is positively
excluded from vote on the final question. It only remains that he
should “preside.” And here the question recurs as to the meaning of
this familiar term.
The person who presides is simply, according to the language of our
Rules, “presiding officer,” and this designation is the equivalent or
synonym of speaker, and also of prolocutor, each of which signifies
somebody who speaks for the house. It is not implied that he votes
with the house, much less that he decides for the house, but only
that he is the voice of the house,--its speaker. What the house has
to say it says through him; but, except as organ of the house, he is
silent, unless also a member, when to his powers as presiding officer
he superadds the powers of a member also. From this brief statement it
appears at once how limited his functions must be.
Here I might stop; but, since this question has assumed unexpected
importance, I am induced to go further. It is easy to show that the
language of the National Constitution, if seen in the light of English
parliamentary history, must have an interpretation identical with its
natural import.
Nothing is clearer than this. If language employed in the National
Constitution had already, at the time of its formation, received a
definite meaning, it must be interpreted accordingly. Thus, when the
Constitution secures “trial by jury,” it secures that institution as
defined by antecedent English law. So, also, when it declares that the
judicial power shall extend to “all cases in law and equity” arising
under the National Constitution, it recognizes the distinction between
law and equity peculiar to English law. Courts of Common Law and Courts
of Equity are all implied in this language; and since there is no
further definition of their powers, we must ascertain them in England.
Cushing, in determining the rules of proceeding in our American
Legislatures, says:--
“Such was the practice of the two Houses of the British
Parliament when our ancestors emigrated; … and such has
continued to be, and now is, the practice in that body.”[97]
This resource has been most persuasively presented by Mr. Wirt, in
his remarkable argument on the impeachment of Judge Peck, where he
vindicates and expounds the true rule of interpretation.
According to this eminent authority, what he calls “the English
archetypes” were the models for the framers of the National
Constitution. The courts were fashioned after these “archetypes.” They
were instituted according to “the English _originals_, to which they
were manifestly referred by the Constitution itself.”[98] Here again I
quote the words of Mr. Wirt.
All this is precisely applicable to that part of the National
Constitution under consideration. In essential features it was borrowed
from England. There is its original, its model, its archetype.
Therefore to England we go.
Not only to England must we go, but also to Parliamentary Law, as
recognized in England at the adoption of the National Constitution.
The powers of a presiding officer, where not specifically declared,
must be found in Parliamentary Law. The very term _preside_ is
parliamentary. It belongs to the technicalities of this branch of law,
as much as _indict_ belongs to the technicalities of the Common Law. In
determining the signification of this term, it will be of little avail
to show some local usage, or, perhaps, some decision of a court. The
usage or decision of a Parliament must be shown. Against this all vague
speculation or divination of reason is futile. I will not encumber this
discussion by superfluous authorities. Insisting that this question
must be determined by Parliamentary Law, I content myself with adducing
the often cited words of Lord Coke:--
“And as every court of justice hath laws and customs for its
direction, some by the Common Law, some by the Civil and Canon
Law, some by peculiar laws and customs, etc., so the High
Court of Parliament _suis propriis legibus et consuetudinibus
subsistit_. It is _lex et consuetudo Parliamenti_, that all
weighty matters in any Parliament, moved concerning the peers
of the realm, or commons in Parliament assembled, _ought to
be determined and adjudged and discussed by the course of the
Parliament_, and not by the Civil Law, nor yet by the common
laws of this realm used in more inferior courts.”[99]
Here is the true rule. To “the course of the Parliament” we must
resort. In “the course of the Parliament” we must find all the powers
of a presiding officer, and all that is implied in the authority to
preside. “The Chief Justice shall preside.” Such is the Constitution.
Nothing is specified with regard to his powers; nothing is said. What
was intended is left to inference from the language employed, which
must be interpreted according to “the course of the Parliament,”
precisely as what was intended by trial by jury is ascertained from the
Common Law. In the latter case we go to the Common Law; in the former
case we go to “the course of the Parliament.” You may as well turn away
from the Common Law in the one as from “the course of the Parliament”
in the other. In determining “the course of the Parliament” we resort
to the summary of text-writers, and, better still, to the authentic
instances of history.
Something has been said in this discussion with regard to the example
of Lord Erskine, who presided at the impeachment of Lord Melville. This
was in 1806, during the short-lived ministry of Fox, when Erskine was
Chancellor. It is by misapprehension that this instance is supposed
to sustain the present assumption. When seen in its true light, it is
found in harmony with the general rule. Erskine had at the time two
characters. He was Lord Chancellor, and in this capacity presiding
officer of the House of Lords, without the right to rule or vote, or
even to speak. Besides being Chancellor, he was also a member of the
House of Lords, with all the rights of other members. As we advance
in this inquiry, it will be seen that again and again it has been
practically decided, that, whatever the powers of a presiding officer
who is actually a member, a presiding officer who is not a member
cannot rule or vote, or even speak. In this statement I anticipate
the argument. I do it at this stage only to put aside the suggestion
founded on the instance of Lord Chancellor Erskine.
* * * * *
I begin with the most familiar authority,--I mean the eminent writer
and judge, Sir William Blackstone. In his Commentaries, where is found,
in elegant form, the complete body of English law, you have this whole
matter stated in a few suggestive words:--
“The Speaker of the House of Lords, _if a Lord of Parliament_,
may give his opinion or argue any question in the House.”[100]
If not a Lord of Parliament, he could not give his opinion or argue any
question. This is in accordance with all the authorities and unbroken
usage; but it has peculiar value at this moment, because it is the text
of Blackstone. This work was the guide-book of our fathers. It first
appeared in 1765-69, the very period when the controversy with the
mother country was fervid; and it is an unquestionable fact of history
that it was read in the Colonies with peculiar interest. Burke, in one
of his masterly orations, portraying the character of our fathers,
says: “I hear that they have sold nearly as many of Blackstone’s
Commentaries in America as in England.”[101] Nothing is clearer than
that they knew it well.
The framers of the National Constitution had it before them constantly.
It was their most familiar work. It was to them as Bowditch’s Navigator
is to the mariner in our day. They looked to it for guidance on the
sea they were traversing. When they undertook to provide that the
Chief Justice, who was not a member of the Senate, should preside at
the impeachment of the President, they knew well that he could have no
power to “give his opinion or argue any question in the House,” for
Blackstone had instructed them explicitly on this head. They knew that
he was simply a presiding officer, according to the immemorial usage of
the upper House in England, with such powers as belong to a presiding
officer who is not a member of the House, and none other.
The powers of the presiding officer of the House of Lords are
illustrated by authority and precedents, all in harmony with the
statement of Blackstone. Ordinarily the Keeper of the Great Seal is the
presiding officer; but, unless a member of the body, he can do little
more than put the question. Any other person, as a Chief Justice, may
be delegated by royal commission. According to the rules of the House,
even if a peer, he cannot speak without quitting the woolsack, which is
the Chair, and moving “to his own place as a peer.”[102] The right of
speech belongs to him as a member, but he cannot exercise it without
leaving his place as presiding officer. So is he circumscribed.
A late writer on Parliamentary Law, whose work is a satisfactory guide,
thus sententiously sums up the law and usage:--
“The position of the Speaker of the House of Lords is somewhat
anomalous; for, though he is the president of a deliberative
assembly, he is invested with no more authority than any other
member; and if not himself a member, his office is limited to
the putting of questions and other formal proceedings.”[103]
This statement is in obvious harmony with that of Blackstone; so that
there is no difference between the writer who is our guide to-day and
the learned commentator who was the guide of our fathers.
Mr. May goes still further, and lets us know that it is only as a
member of the House that the presiding officer can address it, even on
points of order:--
“Upon points of order, the Speaker, if a peer, may address
the House; but, as his opinion is liable to be questioned,
like that of any other peer, he does not often exercise his
right.”[104]
Thus, even if a peer, even if a member of the upper House, the
presiding officer cannot rule a point of order, nor address the
House upon it, except as any other member; and what he says is open
to question, like the utterance of any other member. Such is the
conclusion of the most approved English authority.
American writers on Parliamentary Law concur with English. Cushing,
who has done so much to illustrate the whole subject, says of the
presiding officer of the Lords, that he “is invested with no more
authority for the preservation of order than any other member; and if
not himself a member, his office is limited to the putting of questions
and other formal proceedings; … if he is a peer, he may address the
House and participate in the debates as a member.” He then says again:
“If a peer, he votes with the other members; if not, he does not vote
at all.” And he adds: “There is no casting vote in the Lords.”[105]
This statement was made long after the adoption of the National
Constitution, and anterior to the present controversy.
There are occasions when the Lords have a presiding officer called
a Lord High Steward. This is on the trial of a peer, whether upon
impeachment or indictment. Here the same rule is stated by Edmund
Burke, in his masterly Report to the House of Commons on the
impeachment of Warren Hastings:--
“Every peer present at the trial (and every temporal peer
hath a right to be present in every part of the proceeding)
voteth upon every question of law and fact, and the question
is carried by the major vote,--the High Steward himself voting
merely as a peer and member of that court, in common with the
rest of the peers, and in no other right.”[106]
In another place, the Report, quoting the Commons’ Journal, says:--
“That the Lord High Steward was but as a Speaker, or
_Chairman_, for the more orderly proceeding at the trials.”[107]
And then again:--
“The appointment of him doth not alter the nature of the
court, which still remaineth the Court of the Peers in
Parliament.”[108]
The name of Burke gives to this illustration additional authority and
interest. It is not difficult to see how he would have decided the
present question.
In our day there have been instances of the Lord Chancellor as
presiding officer without being a peer. Brougham took his seat on the
22d November, 1830, before his patent as a peer had been made out, and
during this interval his energies were suppressed in the simple duty
of presiding officer and nothing else. The same was the case with that
eminent lawyer, Sir Edward Sugden, who sat as presiding officer on
the 4th March, 1852, although still a commoner; and it was also the
case with Sir Frederick Thesiger, who sat as presiding officer on the
1st March, 1858, although still a commoner. These instances attest
the prevalence of the early rule down to our day. Even Brougham, who
never shrank from speech or from the exercise of power, was constrained
to bow before its exigency. He sat as Lord Chancellor, and in that
character put the question, but this was all, until he became a member
of the House. Lord Campbell expressly records, that, while his name
appears in the entry of those present on the 22d November, 1830, as
_Henricus Brougham, Cancellarius_, “he had no right to debate and vote
till the following day,” when the entry of his name and office appears
as _Dominus Brougham et Vaux, Cancellarius_.[109]
Passing from these examples of recent history, I return to the rule as
known to our fathers at the adoption of the National Constitution. On
this head the evidence is complete. It is found in the State Trials
of England, in parliamentary history, and in the books of law; but it
is nowhere better exhibited than in the Lives of the Chancellors, by
Lord Campbell, himself a member of the House of Lords and a Chancellor,
familiar with it historically and practically. He has stated the
original rule, and in his work, which is as interesting as voluminous,
has furnished constantly recurring illustrations of it. In the
Introduction to his Lives, where he describes the office of Chancellor,
he enunciates the rule:--
“Whether peer or commoner, the Chancellor is not, like the
Speaker of the Commons, moderator of the proceedings of the
House in which he seems to preside; he is not addressed in
debate; he does not name the peer who is to be heard; he is
not appealed to as an authority on points of order; and he
may cheer the sentiments expressed by his colleagues in the
ministry.”[110]
Existing rules of the Senate add to these powers; but such is the rule
with regard to the presiding officer of the House of Lords, even when
a peer. He is not appealed to on points of order. If a commoner, his
power is still less.
“If he be a commoner, notwithstanding a resolution of the House
that he is to be proceeded against for any misconduct as if he
were a peer, he has neither vote nor deliberative voice, and he
can only put the question, and communicate the resolutions of
the House according to the directions he receives.”[111]
In the early period of English history the Chancellors were often
ecclesiastics, though generally commoners. Fortescue, Wolsey, and More
were never peers. This also was the case with Sir Nicholas Bacon,
father of Lord Bacon, who held the seals under Queen Elizabeth for
twenty years, and was colleague in the cabinet of Burleigh. Lord
Campbell remarks on his position as presiding officer of the House of
Lords:--
“Not being a peer, he could not take a share in the Lords’
debates; but, presiding as Speaker on the woolsack, he
exercised a considerable influence on their deliberations.”[112]
Then again we are told:--
“Being a commoner, he could neither act as Lord Steward nor sit
upon the trial of the Duke of Norfolk, who was the first who
suffered for favoring Mary’s cause.”[113]
Thus early do we meet illustration of this rule, which constantly
reappears in the annals of Parliament.
The successor of Sir Nicholas Bacon was Lord Chancellor Bromley; and
here we find a record interesting at this moment. After presiding at
the trial of Mary, Queen of Scots, the Lord Chancellor became ill
and took to his bed. Under the circumstances, Sir Edmund Anderson,
Chief Justice of the Common Pleas, was authorized by the Queen to act
as a substitute for the Chancellor; and thus the Chief Justice became
presiding officer of the House of Lords to the close of the session,
without being a peer.
Then came Sir Christopher Hatton, the favorite of Queen Elizabeth, and
so famous as the dancing Chancellor, who presided in the House of Lords
by virtue of his office, but never as peer. The same was the case with
his successor, Sir John Puckering. He was followed by the exemplary
Ellesmere, who was for many years Chancellor without being a peer, but
finished his career by adding to his title as presiding officer the
functions of a member. The greatest of all now followed. After much
effort and solicitation, Bacon becomes Chancellor with a peerage; but
it is recorded in the Lords’ Journals, that, when he spoke, he removed
from the woolsack “to his seat as a peer,” thus attesting that he had
no voice as presiding officer. At last, when the corruptions of this
remarkable character began to overshadow the land, the Chief Justice
of the King’s Bench, Sir James Ley, was designated by the King to act
as Speaker of the House of Lords. Soon afterward Bacon fell. Meanwhile
it is said that the Chief Justice “had very creditably performed
the duties of Speaker of the House of Lords.”[114] In other words,
according to the language of our Constitution, he had presided well.
Then came Williams, Coventry, and Finch, as Lord Keepers. As the last
absconded to avoid impeachment by the House of Commons, Littleton,
Chief Justice of the Common Pleas, “was placed on the woolsack as
Speaker.”[115] At a later time he received the Great Seal as Lord
Keeper. This promotion was followed by a peerage, at the prompting of
no less a person than the Earl of Strafford, “who thought he might be
more useful, if permitted to take part in the proceedings of the House
as a peer, than if he could only put the question as Speaker.”[116]
Clarendon says, that, as a peer, he could have done Strafford “notable
service.”[117] But the timid peer did not render the expected service.
Then came the period of Civil War, when one Great Seal was with the
King and another was with Parliament. Meanwhile the Earl of Manchester
was appointed Speaker of the upper House, and as such took his place on
the woolsack. As a peer he had all the privileges of a member of the
House over which he presided. Charles the Second, during his exile,
appointed Hyde, afterward Earl of Clarendon, as Chancellor; but the
monarch was for the time without a Court and without a Parliament. On
the Restoration, in 1660, the Chancellor at once entered upon all his
duties, judicial and parliamentary; and it is recorded, that, “though
still a commoner, holding the Great Seal, he took his place on the
woolsack as Speaker by prescription.”[118] A year later the commoner
was raised to the peerage, thus becoming more than presiding officer.
During illness from the gout the place of the Chancellor as presiding
officer was sometimes supplied by Sir Orlando Bridgeman, Chief Justice
of the Common Pleas, who on these occasions was presiding officer,
and nothing more. Lord Campbell says he “frequently sat Speaker in the
House of Lords,”[119]--meaning that he presided.
On the disgrace of Lord Clarendon, the disposal of the Great Seal was
the occasion of perplexity. The historian informs us, that, “after many
doubts and conflicting plans among the King’s male and female advisers,
it was put into the hands of a grave Common-Law judge,”[120] being
none other than the Chief Justice of the Common Pleas, who had already
presided in the absence of Lord Clarendon; but he was never raised to
the peerage. Then comes another explanation of the precise relation
of such an official to the House. Lord Campbell expressly remarks,
that, “never being created a peer, his only duty in the House of Lords
was to put the question, and to address the two Houses in explanation
of the royal will on the assembling of Parliament.”[121] Here is the
constantly recurring definition of the term _preside_.
For some time afterward there seems to have been little embarrassment.
Nottingham, who did so much for Equity, Shaftesbury, who did so little,
Guilford, so famous through contemporary biography, and Jeffreys, so
justly infamous,--successively heads of the law,--were all peers.
But at the Revolution of 1688 there was an interregnum, which again
brought into relief the relations between the upper House and its
presiding officer. James, on his flight, dropped the Great Seal into
the Thames. There was, therefore, no presiding officer for the Lords.
To supply this want, the Lords, at the meeting of the Convention
Parliament, chose one of their own number, the Marquis of Halifax,
as Speaker, and, in the exercise of the power inherent in them,
they continued to reëlect him day by day. During this period he was
strictly President _pro tempore_. At last, Sir Robert Atkyns, Chief
Baron of the Exchequer, a commoner, took his seat upon the woolsack as
Speaker, appointed by the Crown. Here, again, we learn that “serious
inconvenience was experienced from the occupier of the woolsack not
being a member of the House.”[122] At last, in 1693, the Great Seal was
handed to Sir John Somers, Lord Keeper; and here is another authentic
illustration of the rule. Although official head of the English law,
and already exalted for his ability and varied knowledge, this great
man, one of the saviours of constitutional liberty in England, was
for some time merely presiding officer. The historian records, that,
“while he remained a commoner, he presided on the woolsack only as
Speaker”;[123] that he “had only, as Speaker, to put the question, …
taking no part in debate.”[124] This is more worthy of notice because
Somers was recognized as a consummate orator. At last, according to
the historian, “there was a strong desire that he should take part in
the debates, and, to enable him, the King pressed his acceptance of a
peerage, which, after some further delay, he did, and he was afterward
known as Lord Somers.[125]
In the vicissitudes of public life this great character was dismissed
from office, and a successor was found in an inferior person, Sir
Nathan Wright, who was created Lord Keeper without a peerage. For the
five years of his official life it is recorded that he occupied the
woolsack, “merely putting the question, and having no influence over
the proceedings.”[126] Thus he presided.
Then came the polished Cowper, at first without a peerage, but after
a short time created a member of the House. Here again the historian
records, that, while he remained a commoner, “he took his place on
the woolsack as Speaker of the House of Lords, and without a right to
debate or vote.”[127] It appears, that, “not being permitted to share
in the debates in the House of Lords, he amused himself by taking notes
of the speeches on the opposite sides.”[128] Afterward, even when a
peer, and, as Chancellor, presiding at the impeachment of Sacheverell,
Lord Cowper did not interfere further than by saying, “Gentlemen of the
House of Commons,” or “Gentlemen, you that are counsel for the prisoner
may proceed.”[129]
Harcourt followed Cowper as Keeper of the Great Seal, but he was not
immediately raised to the peerage. It is recorded that during one
year he had “only to sit as Speaker,”[130]--that is, only to preside.
Afterwards, as peer, he became a member. On the accession of George
the First, Harcourt, in turn, gave place to Cowper, who was again made
Chancellor. To him succeeded the Earl of Macclesfield, with all the
rights of membership.
Lord Macclesfield, being impeached of high crimes and misdemeanors as
Chancellor, Sir Peter King, at the time Chief Justice of the Common
Pleas, was made presiding officer of the upper House, with only the
limited powers belonging to a presiding officer who is not a member of
the body. Here the record is complete. Turn to the trial and you will
see it all. It was he who gave directions to the managers, and also
to the counsel,--who put the question, and afterward pronounced the
sentence; but he acted always as presiding officer and nothing else.
I do not perceive that he made any rulings during the progress of the
trial. He was Chief Justice of the Common Pleas, acting as President
_pro tempore_. The report, describing the opening of the proceedings,
says that the articles of impeachment, with the answer and replication,
were read “by direction of the Lord Chief Justice King, Speaker of the
House of Lords.”[131] Another definition of the term _preside_.
All this is compendiously described by Lord Campbell:--
“Sir Peter, not being a peer, of course had no deliberative
voice, but, during the trial, as the organ of the House of
Peers, he regulated the procedure without any special vote,
intimating to the managers and to the counsel for the defendant
when they were to speak and to adduce their evidence. After the
verdict of _Guilty_, he ordered the Black Rod to produce his
prisoner at the bar; and the Speaker of the House of Commons
having demanded judgment, he, in good taste, abstaining from
making any comment, dryly, but solemnly and impressively,
pronounced the sentence which the House had agreed upon.”[132]
This proceeding was in 1725. At this time, Benjamin Franklin, the
printer-boy, was actually in London. It is difficult to imagine that
this precocious character, whose observation in public affairs was
as remarkable as in philosophy, should have passed eighteen months in
London at this very period without noting this remarkable trial and the
manner in which it was conducted. Thus, early in life, he saw that a
Chief Justice might preside at an impeachment without being a member
of the House of Lords or exercising any of the powers which belong to
membership.
Besides his eminence as Chief Justice, King was the nephew of the
great thinker who has exercised such influence on English and American
opinion, John Locke. Shortly after presiding at the impeachment as
Chief Justice, he became Chancellor with a peerage.
He was followed in his high post by Talbot and Hardwicke, each with a
peerage. Jumping the long period of their successful administrations,
when the presiding officer was also a member of the upper House, I
come to another instance where the position of the presiding officer
was peculiarly apparent,--and this, too, when Benjamin Franklin was
in London, as agent for Pennsylvania. I refer to Sir Robert Henley,
who became Lord Keeper in 1757, without a peerage. The King, George
the Second, did not like him, and therefore, while consenting to place
him at the head of the law, declined to make him a member of the House
over which he was to preside. At last, in 1760, the necessities of
the public service constrained his elevation to the peerage, and soon
afterward George the Third, who succeeded to the throne without the
animosities of his grandfather, created him Chancellor and Earl of
Northington.
For nearly three years, Henley, while still a commoner, was presiding
officer. During this considerable period he was without voice or vote.
The historian remarks, that, “if there had been any debates, he was
precluded from taking part in them.”[133] In another place he pictures
the defenceless condition of the unhappy magistrate with regard to his
own decisions in the court below, when heard on appeal:--
“Lord Keeper Henley, till raised to the peerage, used to
complain bitterly of being obliged to put the question for the
reversal of his own decrees, without being permitted to say a
word in support of them.”[134]
Lord Eldon, in his Anecdote Book, furnishes another statement of this
case:--
“When Sir Robert Henley was Keeper of the Great Seal, and
presided in the House of Lords as Lord Keeper, he could not
enter into debate as a Chancellor being a peer does; and
therefore, when there was an appeal from his judgments in the
Court of Chancery, and the law Lords then in the House moved
to reverse his judgments, … the Lord Keeper could not state
the grounds of his opinions given in judgment, and support his
decisions.”[135]
And thus for nearly three years this commoner presided.
A few weeks after Henley first took his place as presiding officer,
Franklin arrived in London for the second time, and continued there, a
busy observer, until after the Judge was created a peer. Even if he had
been ignorant of parliamentary usage, or had forgotten what passed at
the trial of Lord Macclesfield, he could not have failed to note that
the House of Lords had for its presiding officer an eminent judge,
who, not being a member, could take no part in its proceedings beyond
putting the question.
Afterward, in 1770, there was a different arrangement. Owing to
difficulty in finding a proper person as Chancellor, the Great Seal
was put in commission, and Lord Mansfield, Chief Justice of England,
was persuaded to act as presiding officer. Curiously enough, Franklin
was again in England, on his third visit, and remained through the
service of Lord Mansfield in this capacity. Thus this illustrious
American, afterward a member of the Convention that framed the National
Constitution, had at two different times seen the House of Lords with a
presiding officer who, not being a member of the body, could only put
the question, and then again with another presiding officer who, being
a member of the body, could vote and speak, as well as put the question.
But Franklin was not the only member of the National Convention to
whom these precedents were known. One or more had been educated at the
Temple; others were accomplished lawyers, familiar with the courts
of the mother country. I have already mentioned that Blackstone’s
Commentaries, where the general rule is clearly stated, was as well
known in the Colonies as in the mother country. Besides, our fathers
were not ignorant of the history of England, which, down to the
Declaration of Independence, had been their history. The English law
was also theirs. Not a case in its books which did not belong to them
as well as to the frequenters of Westminster Hall. The State Trials,
involving principles of Constitutional Law, and embodying these very
precedents, were all known. At least four editions had appeared
several years before the adoption of the National Constitution. I
cannot err in supposing that all these were authoritative guides at
the time, and that the National Constitution was fashioned in all the
various lights, historical and judicial, which they furnished.
The conclusion is irresistible, that the National Constitution, when
providing a presiding officer for the trial of the President of the
United States, used the term _preside_ in the sense already acquired in
Parliamentary Law, and did not intend any different signification; that
our fathers knew perfectly well the parliamentary distinction between a
presiding officer a member of the House and a presiding officer not a
member; that, in constituting the Chief Justice presiding officer for
a special temporary purpose, they had in view similar instances in the
mother country, when the Lord Keeper, Chief Justice, or other judicial
personage, had been appointed to preside over the House of Lords, of
which he was not a member, as our Chief Justice is appointed to preside
over the Senate, of which he is not a member; that they found in this
constantly recurring example an apt precedent for their guidance;
that they followed this precedent to all intents and purposes, using
received parliamentary language, “the Chief Justice shall preside,” and
nothing more; that, according to this precedent, they never intended
to invest the Chief Justice, President _pro tempore_ of the Senate,
with any other powers than those of a presiding officer not a member of
the body; and that these powers, exemplified in an unbroken series of
instances extending over centuries, under different kings and through
various administrations, were simply to put the question and to direct
generally the conduct of business, without undertaking in any way, by
voice or vote, to determine any question, preliminary, interlocutory,
or final.
In stating this conclusion I present simply the result of the
authorities. It is not I who speak; it is the authorities. My own
judgment may be imperfect; but here is a mass of testimony, concurring
and cumulative, without a single exception, which cannot err.
Plainly and unmistakably, the provision in our Constitution authorizing
the Chief Justice to _preside_ in the Senate, of which he is not a
member, was modelled on the English original. This, according to the
language of Mr. Wirt, was the “archetype” our fathers followed. As such
it was embodied in the National Constitution, as if the text expressly
declared that the Chief Justice, when presiding in the Senate, had
all the powers accorded by parliamentary usage to such a functionary
when presiding in the upper House of Parliament without being a member
thereof. In saying that he shall “preside” the Constitution confers no
powers of membership, and by the well-defined term employed limits him
to those precise functions sanctioned at the time by immemorial usage.
* * * * *
Thus far I have considered this provision in the light of authorities
already known and recognized at the adoption of the National
Constitution. This is enough; for it is by these authorities that its
meaning must be determined. You cannot reject these without setting at
defiance a fixed rule of interpretation, and resorting instead to vague
inference or mere imagination, quickened, perhaps, by your desires.
Mere imagination and vague inference, quickened, perhaps, by your
desires, are out of place when Parliamentary Law is beyond all question.
Pardon me, if I protract this argument by an additional illustration,
derived from our own Congressional history. This is found under the
parallel provision of the National Constitution relating to the
Vice-President, which, after much debate in another generation,
received authoritative interpretation: “The Vice-President of the
United States shall be _President of the Senate_, but shall have
no vote, unless they be equally divided.” In other words, the
Vice-President, like the Chief Justice, shall _preside_ in the Senate,
but, unlike the Chief Justice, with a casting vote. His general powers
are all implied in the provision that he shall preside.
No question has occurred with regard to the vote of the Vice-President,
for this is expressly regulated by the National Constitution. But the
other powers of the Vice-President, when presiding in the Senate,
are left to Parliamentary Law and express rules. Some of the latter
were settled at an early day. From the rules of the Senate at the
beginning it appears, that, independent of his casting vote, nothing
was originally recognized as belonging to a _presiding_ Vice-President
beyond his power to occupy the chair. All else was determined by the
rules. For instance, Senators, when speaking, are to address the
Chair. This rule, which seems to us so superfluous, was adopted 16th
April, 1789, early in the session of the first Congress, in order to
change the existing Parliamentary Law, under which a member of the
upper House of Parliament habitually addresses his associates, and
never the Chair. Down to this day, in England, a peer rising to speak
says, “My Lords,” and never “My Lord Chancellor,” although the latter
_presides_. Another rule, adopted at the same date, has a similar
origin. By Parliamentary Law, in the upper House of Parliament, when
two members rise at the same time, the House, by their cry, indicate
who shall speak. This was set aside by a positive rule of the Senate
that in such a case “the President shall name the person to speak.” The
Parliamentary Law, that the presiding officer, whether a member or not
a member, shall put the question, was reinforced by an express rule
that “all questions shall be put by the President of the Senate.”
Although the rules originally provided, that, when a member is called
to order, “the President shall determine whether he is in order or
not,” they failed to declare by whom the call to order should be made.
There was nothing conferring this power upon the presiding officer,
while by Parliamentary Law in the upper House of Parliament no
presiding officer, _as such_, could call to order, whatever he might
do as member. The powers of the presiding officer in the Senate were
left in this uncertainty, but the small number of Senators and the
prevailing courtesy prevented trouble. At last, in the lapse of time,
the number increased, and debates assumed a more animated character.
Meanwhile, in 1825, Mr. Calhoun became Vice-President. This ingenious
person, severely logical, and enjoying at the time the confidence of
the country to a rare degree, insisted, that, as presiding officer, he
had no power but to carry into effect the rules adopted by the body,
and that therefore, in the absence of any rule on the subject, he was
not empowered to call a Senator to order for words spoken in debate.
His conclusion was given as follows:--
“The Chair had no power beyond the rules of the Senate. It
would stand in the light of a usurper, were it to attempt to
exercise such a power. It was too high a power for the Chair.…
The Chair would never assume any power not vested in it, but
would ever show firmness in exercising those powers that were
vested in the Chair.”[136]
The question with regard to the powers of the Chair was transferred
from the Senate Chamber to the public press, where it was discussed
with memorable ability. An article in the “National Journal,”[137]
under the signature of “Patrick Henry,” attributed to John Quincy
Adams, at the time President, assumed that the powers of the
Vice-President, in calling to order, were not derived from the
Senate, but that they came strictly from the National Constitution
itself, which authorizes him to preside, and that in their exercise
the Vice-President was wholly independent of the Senate. To this
assumption Mr. Calhoun replied in the “Natio
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