On the banks of the Mississippi he is now arrested. The proposed road in Iowa will bear the adventurer yet further, to the banks of the Missouri; and this remote giant stream, mightiest of the earth, leaping from its sources in the Rocky Mountains, will be clasped with the Atlantic in the same iron bracelet. In all this I see not only further opportunities for commerce, but a new extension to civilization and increased strength to our National Union.
A heathen poet, while picturing the Golden Age, perversely indicates the absence of long roads as creditable to that imaginary period in contrast with his own. "How well," exclaims the youthful Tibullus, "they lived while Saturn ruled,—before the earth was opened by long ways!"
"Quam bene Saturno vivebant rege, priusquam
Tellus in longas est patefacta vias!"[88]
But the true Golden Age is before, not behind; and one of its tokens will be the opening of those long ways, by which villages, towns, counties, states, provinces, nations, are all to be associated and knit together in a fellowship that can never be broken.
SECOND SPEECH.
The debate on the Iowa Railroad Bill was continued on successive days down to February 17th, when the speech of Mr. Sumner was particularly assailed by Mr. Hunter, of Virginia. To this he replied at once.
One word, if you please, Mr. President. The Senator from Virginia [Mr. Hunter], who has just taken his seat, has very kindly given me notice that I am to expect "a broadside" from the Senator from Kentucky [Mr. Underwood]. For this information I am properly grateful. When, a few days ago, I undertook to discuss an important question in this body, I expressed certain views, deemed by me of weight. Those views I submitted to the candor and judgment of the Senate. I felt confidence in their essential justice, and nothing heard since has impaired that confidence. I have listened with respect and attention to the address of the Senator from Virginia, as it becomes me to listen to everything any Senator undertakes to put forth here. But I hope to be excused, if I say, that, in all he has so eloquently uttered with reference to myself, he has not touched by a hair-breadth my argument. He has criticized—I am unwilling to say that he has cavilled at—my calculations; but he has not, by the ninth part of a hair, touched the conclusion which I drew. That still stands. And let me say that it cannot be successfully assailed in the way attempted by him.
I said that injustice is done to the Land States, out of this body and in this body: out of this body, because I often hear them called "land-stealers" and "land pirates"; in this body by the Senator from Virginia, when he complains of the partial distribution of the public lands, and particularly points out the bill now before the Senate as an instance. I said that this charge was without foundation. Why? On what ground? Because there is an existing equity (I so called it,—nothing more) on the part of the Land States as against the General Government. And on what is this founded? On a fact of record in the public acts of this country,—that is, the exemption of the public domain from taxation by the States in which it is situated. The Senator from Virginia does not question this fact; of course he cannot, for it is embodied in Acts of Congress.
The next inquiry, then, was, as to the value of this immunity, which I called an equity. To illustrate this value, I went into calculations and estimates, which I presented, after some study of the subject,—not, perhaps, such study as the Senator from Virginia has found time to give, or such as the Senator from Kentucky, in the plenitude of his researches, doubtless has given. On those calculations and estimates I attributed a certain value to the equity in question. My calculations and estimates may be overstated; they may be exaggerated. The Senator from Virginia thinks them so. Other gentlemen with whom I have had the privilege of conversing think them understated. However this may be, it does not touch the argument. I may have done injustice to my argument by overstating them. I intended to understate them. From all that I hear, I still think that I have understated them. But, whether understated or overstated, the argument still stands, that these States have conceded to the General Government an immunity from taxation,—that this immunity has a certain value, I think very large,—and that this value constitutes an equity to which the Land States have a right to appeal for bountiful, ay, for munificent treatment. Has the Senator from Virginia answered this argument? Can he answer it?
I forbear to go into the subject at this time. I rose simply to state, that, as the Senator from Virginia generously warns me that I am to expect "a broadside" from the Senator from Kentucky, I am to regard what he said to-day, so far as I am concerned, simply as a signal gun. The Senator will pardon me, if I say it is nothing more; for it has not reached me, or my argument. Meanwhile I await, with resignation, and without anxiety, the "broadside" from Kentucky.
THIRD SPEECH.
The debate was continued for many days, during which the speech of Mr. Sumner was attacked and defended. Finally, on the 16th of March, immediately before the question was taken, he again returned to the subject.
Mr. President,—Much time has been consumed by this question. At several periods the debate has seemed about to stop, and then again it has taken a new spring, while the goal constantly receded. I know not if it is now near the end. But I hope that I shall not seem to interfere with its natural course, or unduly occupy the time of the Senate, if I venture again for one moment to take part in it.
The argument which I submitted on a former occasion has not passed unregarded. And since it can owe little to my individual position, I accept the opposition it encounters as a tribute to its intrinsic importance. It has been assailed by different Senators, on different days, and in different ways. It has been met by harmless pleasantry, and by equally harmless vituperation,—by figures of arithmetic and figures of rhetoric,—by minute criticism and extended discussion,—also, by that sure resource of a weak cause, hard words, and an imputation of personal motives. I propose no reply to all this array; least of all shall I retort hard words, or repel personal imputations. On this head I content myself with saying,—and confidently, too,—that, had he known me better, the Senator from Kentucky [Mr. Underwood], who is usually so moderate and careful, would have hesitated long before uttering expressions which fell from him in this debate.
The position I took is regarded as natural, or excusable, in a Senator from one of the Land States, acting under the vulgar spur of local interest; but it is pronounced unnatural and inexcusable in a Senator from Massachusetts. Now, Sir, it is sufficient for me to say, in reply to this imputation, that, while I know there are influences and biases incident to particular States or sections of the Union, I recognize no difference in the duties of Senators on this floor. Coming from different States and opposite sections, we are all Senators of the Union; and our constant duty is, without fear or favor, to introduce into the national legislation the principle of justice. In this spirit, while sustaining the bill before the Senate, I spoke for justice to the Land States.
In my present course, I but follow the example of Senators and Representatives of Massachusetts on kindred measures from their earliest introduction down to the present time. The first instance was in 1823, on the grant to the State of Ohio of land one hundred and twenty feet wide, with one mile on each side, for the construction of a road from the lower rapids of the Miami River to the western boundary of the Connecticut Reserve. On the final passage of this grant in the House, the Massachusetts delegation voted as follows: Yeas,—Samuel C. Allen, Henry W. Dwight, Timothy Fuller, Jeremiah Nelson, John Reed, Jonathan Russell; Nay,—Benjamin Gorham. In the Senate the bill passed without a division. In 1828 a still greater unanimity occurred on the passage of the bill to aid the State of Ohio in extending the Miami Canal from Dayton to Lake Erie; and this bill is an early instance of the grant of alternate sections, as in that now before the Senate. On this the Massachusetts delegation in the House voted as follows: Yeas,—Isaac C. Bates, Benjamin W. Crowninshield, John Davis, Edward Everett, John Locke, John Reed, Joseph Richardson, John Varnum; Nays,—none. In the Senate, Messrs. Silsbee and Webster both voted in the affirmative. I pass over intermediate grants, which, I am told, were sustained by the Massachusetts delegations with substantial unanimity. The extensive grants, by the last Congress, to Illinois, Mississippi, and Alabama, in aid of a railroad from Chicago to Mobile, were sustained by all the Massachusetts votes in the House, except one.
Still further, in sustaining the present bill on grounds of justice to the Land States, I but follow the recorded instructions of the Legislature of Massachusetts, addressed to its Senators and Representatives here on a former occasion. The subject was presented in a special message to the Legislature in 1841, by the distinguished Governor at that time,[89] who strongly urged "a liberal policy towards the actual settler, and towards the new States, for this is justly due to both." And he added: "Such States are entitled to a more liberal share of the proceeds of the public lands than the old States, as we owe to their enterprise much of the value this property has acquired. It seems to me, therefore, that justice towards the States in which these lands lie demands a liberal and generous policy towards them."[90] In accordance with this recommendation, it was resolved by the Legislature, "That, in the disposition of the public lands, this Commonwealth approves of making liberal provisions in favor of the new States; and that she ever has been, and still is, ready to cooperate with other portions of the Union in securing to those States such provisions."[91] Thus a generous policy towards the Land States, with liberal provisions in their favor, was considered by Massachusetts the part of justice.
It was my purpose, before this debate closed, to consider again the argument I formerly submitted, and to vindicate its accuracy in all respects, both in principle and in detail. But this has already been so amply done by others much abler than myself,—by the Senator from Missouri [Mr. Geyer], both the Senators from Michigan [Mr. Felch and Mr. Cass], the Senator from Arkansas [Mr. Borland], the Senator from Iowa [Mr. Dodge], and the Senator from Louisiana [Mr. Downs],—all of whom, with different degrees of fulness, have urged the same grounds in favor of this bill, that I feel unwilling at this hour, and while the Senate actually waits to vote on the question, to occupy time by further dwelling upon it. Perhaps on some other occasion I may think proper to return to it.
But, while avoiding what seems superfluous discussion, I cannot forbear asking your attention to the amendment of the Senator from Kentucky [Mr. Underwood].
This amendment, when addressed to Senators of the favored States, is of a most plausible character. It proposes to give portions of the public domain to the original Thirteen, together with Vermont, Maine, Tennessee, and Kentucky, for purposes of education and internal improvement, at the rate of one acre to each inhabitant according to the recent census. This is commended by the declared objects,—education and internal improvement. Still further, in its discrimination of the old States, it assumes a guise well calculated to tempt them into its support. It holds out the attraction of seeming, though unsubstantial, self-interest. It offers a lure, a bait, to be unjust. I object to it on several grounds.
1. But I put in the fore-front, as my chief objection, its clear, indubitable, and radical injustice, written on its very face. The amendment confines its donations to the old States, and, so doing, makes an inequitable discrimination in their favor. It tacitly assumes, that, by the bill in question, or in some other way, the Land States have received their proper distributive portion, so as to lose all title to share with the old States in the proposed distribution. But, if there be any force in the argument, so much considered in this debate, that these railroad grants actually enhance the value of the neighboring lands of the United States, and constitute a proper mode of bringing them into the market, or if there be any force in the other argument which I have presented, drawn from the equitable claims of the Land States, in comparison with the other States, to the bounty of the great untaxed proprietor,[92] then this assumption is unfounded. There is no basis for the discrimination made by the amendment. If the Iowa Land Bill be proper without this amendment, as most will admit, then this amendment, introducing a new discrimination, is improper. Nor do I well see how any one prepared to sustain the original bill can sustain the amendment. The Senator from Kentucky, who leads us to expect his vote for the bill, seems to confess the injustice of his attempted addition.
2. I object to it as out of place. The amendment engrafts upon a special railroad grant to a single State a novel distribution of the national domain. Now there is a place and a time for all things; and nothing seems to me more important in legislation than to keep all things in their proper place, and to treat them at their proper time. The distribution of the public lands is worthy of attention; and I am ready to meet this great question whenever it arises legitimately for our consideration; but I object to considering it merely as a rider to the Iowa Land Bill.
The amendment would be less objectionable, if proposed as a rider to a general system of railroad grants,—as, for instance, to a bill embracing grants to all the Land States; but it is specially objectionable as a graft upon the present bill. The Senator who introduced it doubtless assumed that other bills, already introduced, would pass; but, if his amendment be founded on this assumption, it should wait the action of Congress on all these bills.
3. If adopted, the amendment might endanger, if it did not defeat, the Iowa Land Bill. This seems certain. Having this measure at heart, believing it founded in essential justice, I am unwilling to place it in this jeopardy.
4. It prepares the way for States of this Union to become landholders in other States, subject, of course, to the legislation of those States,—an expedient which, though not strictly objectionable on grounds of law, or under the Constitution, is not agreeable to our national policy. It should not be promoted without strong and special reasons. In the bill introduced by the Senator from Illinois [Mr. Shields], bestowing lands for the benefit of the insane in different States, this objection is partially obviated by providing that the States in which there are no public lands shall select their portion in the Territories of the United States, and not in other States. But, since in a short time these very Territories may become States, this objection is rather adjourned than removed.
5. Lands held under this amendment, though in the hands of States, will be liable to taxation, as lands of other non-resident proprietors, and on this account will be comparatively valueless. For this reason I said that the amendment held out the attraction of seeming, though unsubstantial, self-interest. That the lands will be liable to taxation cannot be doubted. The amendment does not propose in any way to relieve them from this burden, nor am I aware that they can be relieved from it. The existing immunity is only so long as they belong to the United States. Now there is reason to believe, that, from lack of agencies and other means familiar to the United States, the lands distributed by this amendment would not find as prompt a market as those still in the hands of the Great Landholder. But however this may be, it is entirely clear, from the recorded experience of the national domain, that these lands, if sold at the minimum price of the public lands, and only as rapidly as those of the United States, and if meanwhile they are subject to the same burdens as the lands of other non-residents, will, before the sales are closed, be eaten up by the taxes. The taxes will amount to more than the entire receipts from sales; and thus the grant, while unjust to the Land States, will be worthless to the old States, the pretended beneficiaries. In the Roman Law, an insolvent inheritance was known by an expressive phrase as damnosa hæreditas. A grant under this amendment would be damnosa donatio.
For such good and sufficient reasons, I am opposed to this amendment.
Letter to the Rev. Rufus W. Griswold, February 22, 1852.
Washington, February 22, 1852.
My Dear Sir,—It is not in my power to be present at the proposed demonstration in memory of the late Mr. Cooper. But I am glad of the opportunity, afforded by the invitation with which I have been honored, to express my regard for his name and my joy that he lived and wrote.
As an author of clear and manly prose, as a portrayer to the life of scenes on land and sea, as a master of the keys to human feelings, and as a beneficent contributor to the general fund of happiness, he is remembered with delight.
As a patriot who loved his country, who illustrated its history, who advanced its character abroad, and by his genius won for it the unwilling regard of foreign nations, he deserves a place in the hearts of the American people.
I have seen his works in cities of France, Italy, and Germany. In all these countries he was read and admired. Thus by his pen American intervention was peacefully, inoffensively, and triumphantly carried into the heart of the European Continent.
In honoring him we exalt literature and the thrice blessed arts of peace. Our country will learn anew from your demonstration that there are glories other than those of state or war.
I have the honor to be, dear Sir,
Your obedient servant,
Charles Sumner.
Rev. Rufus W. Griswold.
Speech in the Senate, on a Resolution in Relation to Cheap Ocean Postage, March 8, 1852.
This proposition Mr. Sumner constantly renewed at subsequent sessions of Congress.
Mr. President,—I submit the following resolution. As it is one of inquiry, I ask that it may be considered at this time.
Resolved, That the Committee on Naval Affairs, while considering the nature and extent of aid proper to be granted to the Ocean Steamers, be directed to inquire whether the present charges for letters carried by these steamers are not unnecessarily large and burdensome to foreign correspondence, and whether something may not be done, and, if so, what, to secure the great boon of Cheap Ocean Postage.
There being no objection, the question was stated to be on the adoption of the resolution.
Mr. President,—The Committee on Naval Affairs have the responsibility of shaping some measure by which the relations of our Government with the ocean steamers will be defined. And since one special inducement to these relations, involving the bounty now enjoyed and further solicited, is the carrying of the mails, I trust this Committee will be willing to inquire whether there cannot be a reduction on the postage of foreign correspondence. Under the Postage Act of 1851, the Postmaster, by and with the advice of the President, has power to reduce, from time to time, the rates of postage on all mailable matter conveyed between the United States and any foreign country. But the existence of this power in the Postmaster will not render it improper for the Committee, now drawn into connection with this question, to take it into careful consideration, with a view to some practical action, or, at least, recommendation. The subject is of peculiar interest; nor do I know any measure, so easily accomplished, which promises to be so beneficent as cheap ocean postage. The argument in its favor is at once brief and unanswerable.
A letter can be sent three thousand miles in the United States for three cents, and the reasons for cheap postage on land are equally applicable to ocean.
In point of fact, the conveyance of letters can be effected in sailing or steam packets at less cost than by railway.
Besides, cheap ocean postage will tend to supersede the clandestine or illicit conveyance of letters, and to bring into the mails all mailable matter, which, under the present system, is carried in the pockets of passengers or in the bales and boxes of merchants.
All new facilities for correspondence naturally give new expansion to human intercourse; and there is reason to believe, that, through an increased number of letters, cheap ocean postage will be self-supporting.
Cheap postal communication with foreign countries will be of incalculable importance to the commerce of the United States.
By promoting the intercourse of families and friends separated by ocean, cheap postage will add to the sum of human happiness.
The present high rates of ocean postage—namely, twenty-four cents on half an ounce, forty-eight cents on an ounce, and ninety-six cents on a letter which weighs a fraction more than an ounce—are a severe tax upon all, particularly upon the poor, amounting, in many cases, to a complete prohibition of foreign correspondence. This should not be.
It particularly becomes our country, by the removal of all unnecessary burdens upon foreign correspondence, to advance the comfort of European emigrants seeking a home among us, and to destroy, as far as practicable, every barrier to free intercourse between the Old World and the New.
And, lastly, cheap ocean postage will be a bond of peace among the nations of the earth, and will extend good-will among men.
By such reasons this measure is commended. Much as I rejoice in the American steamers, which vindicate a peaceful supremacy of the seas, and help to weave a golden tissue between the two hemispheres, I cannot consider these, with all their unquestionable advantages, an equivalent for cheap ocean postage. I trust that they are not inconsistent with each other, and that both may flourish together.
Objection was made to the resolution, as not being addressed to the proper Committee, and a brief debate ensued, in which Mr. Rusk, Mr. Gwin, Mr. Badger, Mr. Davis, Mr. Seward, Mr. Mason, and Mr. Sumner took part. It was urged by the last, in reply, that the Committee on Naval Affairs was the proper Committee, as at the present moment it is specially charged with a subject intimately connected with the inquiry proposed. At the suggestion of Mr. Badger the matter was allowed to lie over till the next day.
On Tuesday, March 9th, the Senate proceeded to consider the resolution submitted by Mr. Sumner on the 8th, relative to Ocean Steamers and Cheap Ocean Postage. On motion of Mr. Sumner, it was amended, and finally adopted, without opposition, as follows:—
"Resolved, That the Committee on the Post Office and Post Roads be directed to inquire whether the present charges on letters carried by the Ocean Steamers are not unnecessarily large and burdensome to foreign correspondence, and whether something may not be done, and, if so, what, to secure the great boon of Cheap Ocean Postage."
Opinion submitted to the President, May 14, 1852, on the Application for the Pardon of Drayton and Sayres, incarcerated at Washington for helping the Escape of Slaves.
This case, from beginning to end, is a curious episode of Antislavery history. The people of Washington were surprised, on the morning of April 16, 1848, at hearing that the "Pearl," a schooner from the North, had sailed down the Potomac with seventy-six slaves, who had hurried aboard in the vain hope of obtaining their freedom. The schooner was pursued and brought back to Washington with her human cargo, and the liberators, Drayton, master, and Sayres, mate. As the latter were taken from the river-side to the jail, they were followed by a proslavery mob, estimated at from four to six thousand people, many armed with deadly weapons, amid wrathful cries of, "Hang him!" "Lynch him!" with all profanities and abominations of speech, and exposed to violence of all kinds,—the thrust of a dirk-knife coming within an inch of Drayton. The same mob besieged the jail, and, hearing that Hon. Joshua E. Giddings, the brave Representative of Ohio, was there in consultation with the prisoners, demanded his immediate expulsion, and the jailer, to save bloodshed, insisted upon his departure. Nor was the prevailing rage confined to the jail. It extended to the office of the "National Era," the Antislavery paper, which was saved from destruction only through the courage and calmness of its admirable editor. The spirit of the mob entered both Houses of Congress, and the slave-masters raged, as was their wont.
Meanwhile Drayton and Sayres were indicted before the Criminal Court of the District of Columbia for "transporting" slaves. There were no less than one hundred and fifteen indictments against each of the prisoners, and the bail demanded of each was seventy-six thousand dollars. Hon. Horace Mann, a Representative of Massachusetts, appeared for the defence. His speech on this occasion will be read with constant interest.[93] The spirit of the mob without entered the court-room, betraying itself even in the conduct of the judge, while standing near the devoted counsel for the defence were men who cocked pistols and drew dirks in the mob that followed the prisoners to the jail. Of course the verdict was "Guilty," and the sentence was according to the extreme requirement of a barbarous law.
Drayton and Sayres lingered in prison more than four years, and during this long incarceration they were the objects of much sympathy at the North. A petition to Congress in their behalf, signed by leading Abolitionists, including the eloquent Wendell Phillips, was forwarded to Mr. Sumner for presentation to the Senate. On careful consideration, he was satisfied that such a petition, if presented, would excite the dominant power to insist more strongly than ever on the letter of the law, and he took the responsibility of withholding it. Meanwhile he visited the sufferers in prison, and appealed to President Fillmore for their pardon. In this application he was aided by that humane lady, Miss Dix. The President interposed doubts of his right to pardon in such a case, but expressed a desire for light on this point. At his invitation, Mr. Sumner laid before him the following paper, which was referred to the Attorney-General, Mr. Crittenden, who gave an opinion affirming the power of the President,—adding, however, "Whether the power shall be exercised in this instance is another and very different question."[94] This opinion bears date August 4, 1852, which, it will be observed, was some time after the Presidential Conventions of the two great political parties. Shortly afterwards the pardon was granted.
There was reason to believe that an attempt would be made to arrest the pardoned persons on warrants from the Governor of Virginia. Anticipating this peril, Mr. Sumner, as soon as the pardon was signed, hurried to the jail in a carriage, and, taking them with him, put them in charge of a friend, who conveyed them that night to Baltimore, a distance of forty miles, where they arrived in season for the early morning trains North, and in a few hours were out of danger.
By the laws of Maryland, 1737, chapter 2, section 4, it is provided that any person "who shall steal any negro or other slave, or who shall counsel, hire, aid, abet, or command any person or persons" to do so, "shall suffer death as a felon." The punishment has since been changed to imprisonment, for a term not less than seven nor more than twenty years.
Fourteen years later, by the act of 1751, chapter 14, section 10, it was provided, that, "if any free person shall entice and persuade any slave within this province to run away, and who shall actually run away, from the master, owner, or overseer, and be convicted thereof, by confession, or verdict of a jury upon an indictment or information, shall forfeit and pay the full value of such slave to the master or owner of such slave, to be levied by execution on the goods, chattels, lands, or tenements of the offender, and, in case of inability to pay the same, shall suffer one year's imprisonment without bail or mainprise."
Still later, by the act of 1796, chapter 67, section 19, "the transporting of any slave or any person held to service" from the State was made a distinct offence, for which the offender was liable in an action of damages, and also by indictment.
By the Act of Congress organizing the District of Columbia (February 27, 1801) it was declared, that "the laws of the State of Maryland, as they now exist, shall be and continue in force in that part of the said District which was ceded by that State to the United States, and by them accepted as aforesaid." Under this provision, these ancient laws of Maryland are to this day of full force in the District of Columbia.
The facts to be considered are few. Messrs. Drayton and Sayres, on indictment and trial, under the act of 1737, for stealing slaves, were acquitted, the jury rendering a verdict of "Not guilty." Resort was then had to the statute of 1796, chapter 67, section 19, as follows.
"And be it enacted, That any person or persons, who shall hereafter be convicted of giving a pass to any slave, or person held to service, or shall be found to assist, by advice, donation, or loan, or otherwise, the transporting of any slave, or any person held to service, from this State, or by any other unlawful means depriving a master or owner of the service of his slave, or person held to service, for every such offence the party aggrieved shall recover damages in an action on the case against such offender or offenders; and such offender or offenders also shall be liable, upon indictment, and conviction upon verdict, confession, or otherwise, in this State, in any county court where such offence shall happen, [to] be fined a sum not exceeding two hundred dollars, at the discretion of the court, one half to the use of the master or owner of such slave, the other half to the county school, in case there be any; if no such school, to the use of the county."
Under this statute, proceedings were instituted by the Attorney of the District of Columbia against these parties, in seventy-four different indictments, each indictment being founded on the alleged "transporting" of a single slave. On conviction, Drayton was sentenced on each indictment to a fine of $140 and costs, in each case $19.49, amounting in the sum-total to $11,802.26. On conviction, Sayres was sentenced on each indictment to a fine of $100 and costs, in each case $17.38, amounting in the sum-total to $8,686.12. One half of the fine was, according to law, to the use of the masters or owners of the slaves transported; the other half, to the county school,—or, in case there were no such school, to the use of the county. Afterwards, on motion of the Attorney for the District, they were "prayed in commitment," and committed until the fine and costs should be paid. In pursuance of this sentence, and on this motion, they have been detained in prison, in the City of Washington, since April, 1848, and are still in prison, unable from poverty to pay these large fines. The question now occurs as to the power of the President to pardon them, so at least as to relieve them from imprisonment.
The peculiar embarrassment in this case arises from the nature of the sentence. If it were simply a sentence of imprisonment, the power of the President would be unquestionable. So, also, if it were a sentence of imprisonment, with fine superadded, payable to the United States, his power would be unquestionable; and the same power would extend to the case of a fine payable to the United States, with imprisonment as the alternative on non-payment of the fine.
But in the present case imprisonment is the alternative for non-payment of fines which are not payable to the United States, but to other parties, namely, the slave-owners and the county. It is important, however, to bear in mind that these fines are a mere donation to these parties, and not a compensation for services rendered. These parties are not informers, nor were the proceedings in the nature of a qui tam action.
It should be distinctly understood, at the outset, that the proceedings against Drayton and Sayres were not at the suit of any informer or private individual, but at the prosecution of the United States by indictment. They are therefore removed from the authority of the English cases, which protect the share of an informer after judgment from remission by pardon from the crown.
The power of the President in the present case may be regarded, first, in the light of the Common Law,—secondly, under the statutes of Maryland,—and, thirdly, under the Constitution of the United States.
First. As to the Common Law, it may be doubtful, whether, according to early authorities, the pardoning power can be used so as to bar or divest any legal interest, benefit, or advantage vested in a private individual. It is broadly stated by English writers that it cannot be so used. (2 Hawkins, P.C., 392, Book II., chap. 37, sec. 34; 17 Viner's Abridgment, 39, Prerogative of the King, U. art. 7.) But this principle does not seem to be sustained by practical cases in the United States, except in the instances of informers and qui tam actions, while, on one occasion, in a leading case of Kentucky, it was rejected. (Routt v. Feemster, 7 J.J. Marshall, 132.)
But it is clearly established, that, where the fine is allotted to a public body, or a public officer, for a public purpose, it may be remitted by pardon. This may be illustrated by several cases.
1. As where, in Pennsylvania, the fine was for the benefit of the county. In this case the Court said: "Until the money is collected and paid into the treasury, the constitutional right of the Governor to pardon the offender, and remit the fine or forfeiture, remains in full force. They can have no more vested interest in the money than the Commonwealth, under the same circumstances, would have had; and it cannot be doubted, that, until the money reaches the treasury, the Governor has the power to remit.... In the case of costs, private persons are interested in them; but as to fines and forfeitures, they are imposed upon principles of public policy. The latter, therefore, are under the exclusive control of the Governor." (Commonwealth v. Denniston, 9 Watts, 142.) The same point is also illustrated by a case in Illinois. (Holliday v. The People, 5 Gilman, 214-217.)
2. As where, in Georgia, the fine was to be paid to an inferior court for county purposes. (In Re Flournoy, Attorney-General, 1 Kelly, 606-610.)
3. As where, in South Carolina, the fine was to be paid to the Commissioners of Public Buildings, for public purposes, (The State v. Simpson, 1 Bailey, 378,) or the Commissioners of the Roads. (The State v. Williams, 1 Nott & McCord, 26. See also Rowe v. The State, 2 Bay, 565.)
According to these authorities, the portion of the fine allotted to the county, or to the school, may be remitted. Of this there can be no doubt.
Secondly. The Statutes of Maryland, anterior to the organization of the District of Columbia, may also be regarded as an independent source of light on this question, since these statutes are made the law of the District. And here the conclusion seems to be easy.
By the Constitution of Maryland, adopted November 8th, 1776, it is declared: "The Governor may grant reprieves or pardons for any crime, except in such cases where the law shall otherwise direct." Notwithstanding these strong words of grant, which seem to be as broad as the Common Law, it was further, as if to remove all doubt, declared by the Legislature, in 1782 (Chap. 42, sec. 3): "That the Governor, with the advice of the Council, be authorized to remit the whole or any part of any fine, penalty, or forfeiture, heretofore imposed, or hereafter to be imposed, in any court of law." Here is no exception or limitation of any kind. By express words, the Governor is authorized to remit the whole or any part of any fine. Of course, under this clause he cannot remit a private debt; but he may remit any fine. The question is not, whether the fine be payable to the United States or other parties, but whether it is a fine. If it be a fine, it is in the power of the Governor.
This view is strengthened by the circumstance, that in Maryland, according to several statutes, fines are allotted to parties other than the Government. The very statute of 1796, under which these proceedings were had, was passed subsequently to this provision respecting the remission of fines. It must be interpreted in harmony with the earlier statute; and since all these statutes are now the law of the District of Columbia, the power of the President, under these laws, to remit these fines, seems established without special reference to the Common Law or to the Constitution of the United States.
If this were not the case, two different hardships would ensue: first, the statute of 1782 would be despoiled of its natural efficacy; and, secondly, the minor offence of "transporting" a single slave would be punishable, on non-payment of the fine, with imprisonment for life, while the higher offence of "stealing" a slave is punishable with imprisonment for a specific term, and the other offence of "enticing" a slave is punishable with a fine larger than that for transporting a slave, and, on non-payment thereof, imprisonment for one year only.
Thirdly. Look at the case under the Constitution of the United States.
By the Constitution, the President has power "to grant reprieves and pardons for offences against the United States, except in cases of impeachment." According to a familiar rule of interpretation, the single specified exception leaves the power of the President applicable to all other cases: Expressio unius exclusio est alterius. Mr. Berrien, in one of his opinions as Attorney-General, recognizes "the pardoning power as coextensive with the power to punish"; and he quotes with approbation the words of another writer, that "the power is general and unqualified," and that "the remission of fines, penalties, and forfeitures, under the revenue laws, is included in it." (Opinions of the Attorneys-General, Vol. I. p. 756.)
On this power Mr. Justice Story thus remarks: "The power of remission of fines, penalties, and forfeitures is also included in it, and may, in the last resort, be exercised by the Executive, although it is in many cases by our laws confided to the Treasury Department. No law can abridge the constitutional powers of the Executive Department, or interrupt its right to interpose by pardon in such cases.—Instances of the exercise of this power by the President, in remitting fines and penalties, in cases not within the scope of the laws giving authority to the Treasury Department, have repeatedly occurred, and their obligatory force has never been questioned." (Story, Com. on Constitution, Vol. II. § 1504.)
It has been decided by the Supreme Court, after elaborate argument, that "the Secretary of the Treasury has authority, under the Remission Act of the 3d of March, 1797, chap. 361, to remit a forfeiture or penalty accruing under the revenue laws, at any time, before or after a final sentence of condemnation or judgment for the penalty, until the money is actually paid over to the Collector for distribution"; and that "such remission extends to the shares of the forfeiture or penalty to which the officers of the customs are entitled, as well as to the interest of the United States." In giving his opinion on this occasion, Mr. Justice Johnson, of South Carolina, made use of language much in point. "Mercy and justice," he said, "could only have been administered by halves, if collectors could have hurried causes to judgment, and then clung to the one half of the forfeiture, in contempt of the cries of distress or the mandates of the Secretary." (United States v. Morris, 10 Wheaton, 303.)
A case has occurred in Kentucky, to which reference has been already made, in which it is confidently and broadly assumed that the pardoning power under the Constitution extends even to the penalties due to informers. The following passage occurs in the opinion of the Court. "The act of 1823 says that any prosecuting attorney, who shall prosecute any person to conviction under it, shall be entitled to twenty-five per cent of the amount of such fine as shall be collected.... The act gives the prosecuting attorney one fourth of the money, when collected, but vests him with no interest in the fine or sentence, separate and distinct from that of the Commonwealth, that would screen his share from the effect of any legal operation which should, before collection, abrogate the whole or a part of it. It would require language of the strongest and most explicit character to authorize a presumption that the Legislature intended to confer any such right. We could never presume an intention to control the Governor's constitutional power to remit fines and forfeitures. If he can in this way be restrained in the exercise of his power to remit for the fourth of a fine, so can he be for the half or the whole. This part of his prerogative cannot be curtailed. With the exception of the case of treason, his power to remit fines and forfeitures, grant reprieves and pardons, is unlimited, illimitable, and uncontrollable. It has no bounds but his own discretion. It is no doubt politic and proper for the Legislature to incite prosecuting attorneys and informers, by giving them a portion of fines, when collected; but in so doing the citizen cannot be debarred of his right of appeal to executive clemency." (Routt v. Feemster, 7 J.J. Marshall, 132.)
According to these authorities, it seems reasonable to infer, that, under the Constitution of the United States, the pardoning power, which is clearly applicable to the offence of "transporting" slaves of the District, might remit the penalties in question. These penalties, though allotted to the owners and the county, when finally collected, are neither more nor less than the punishment, under sentence of a criminal court, for an offence of which the parties stand convicted upon indictment. They can be collected and acquitted only by the United States. No process for this purpose is at the command of the slave-owner. He had no control whatever over the prosecution at any stage, nor did it proceed at his suggestion or information. The very statute under which these public proceedings were instituted in the name of the United States secured to the slave-owner his private action on the case for damages,—thus separating the public from the private interests. These it seems the duty of the President to keep separate, except on the final collection and distribution of the penalties. Public policy and the ends of justice require that the punishment for a criminal offence should, in every case, be exclusively subject to the supreme pardoning power, without dependence upon the will of any private person. An obvious case will illustrate this. Suppose, in the case of Drayton and Sayres, it should be ascertained beyond doubt that the conviction was procured by perjury. If, by virtue of the judgment, the slave-owners have an interest in the imprisonment of these men which cannot be touched, then the prisoners, unable to meet these heavy liabilities, must continue in perpetual imprisonment, or owe their release to the accident of private good-will. The President, notwithstanding his beneficent power to pardon, under the Constitution, will be powerless to remedy this evil. But such a state of things would be monstrous; and any interpretation of the Constitution is monstrous which thus ties his hands. Mercy and justice would be rendered not merely by halves, but, owing to the inability of prisoners, from poverty, to pay the other half of the fine, they would be entirely arrested.
The power of pardon, which is attached by the Constitution to offences generally, should not be curtailed. It is a generous prerogative, and should be exercised generously. Boni judicis est ampliare jurisdictionem. This is an old maxim of the law. But if it be the duty of a good judge to extend his jurisdiction, how much more is it the duty of a good President to extend the field of his clemency! At least, no small doubt should deter him from the exercise of his prerogative.
The conclusion from this review is as follows.
1. By the English Common Law the costs and one half of the fines may be remitted. It is not certain that by this law, as adopted in the United States, the other half of the fines may not also be remitted.
2. Under the statutes of Maryland, now the law of the District, the Governor, and, of course, the President, may remit "the whole or any part of any fine," without exception.
3. Under the Constitution of the United States, and according to its true spirit, the pardoning power of the President is coextensive with the power to punish, except in the solitary case of impeachment.
Several courses are open to the President in the present case.
I. By a general pardon he may discharge Drayton and Sayres from prison, and remit all the fines and costs for which they are detained. Such a pardon would unquestionably operate effectually upon the imprisonment and upon the costs, and also upon the half of the fines due to the county. It would be for the courts, on a proper application, and in the exercise of their just powers, to restrict it, if the pardon did not operate upon the other moiety.
Among the opinions of the Attorney-General is a case which illustrates this point. In 1824 Joshua Wingate prayed for a credit, in the settlement of his accounts, for his proportion of a fine incurred by one Phineas Varney. It appeared that suit was instituted by the petitioner as Collector of the District of Bath, Maine, on which judgment was obtained in May, 1809; the defendant was arrested and committed to jail, under execution on that judgment, and the fine was afterwards remitted by the President. The petitioner contended that the President had no constitutional or legal power to remit his proportion of the fine, the right to which had vested by the institution of the suit. On this Mr. Wirt remarks, that "it is unnecessary to express an opinion upon the correctness of this position, because, if it be correct, the act of remission by the President being wholly inoperative as to that portion of the fine claimed by the collector, his legal right to recover it remained in full force, notwithstanding the remission; and it is his own fault, if he has not enforced his right at law." (Opinions of the Attorneys-General, Vol. I. p. 479.)
A general pardon cannot conclude the question so as to divest any existing rights. It can do no wrong. Why should the President hesitate to exercise it?
II. By a limited pardon the President may discharge Drayton and Sayres simply and exclusively from their imprisonment, without touching their pecuniary liability, but leaving them still exposed to proceedings for all fines and costs, to be satisfied out of any property they may hereafter acquire.
If the imprisonment were a specific part of the sentence,—as, if they had been sentenced to one year's imprisonment and a fine of one hundred dollars,—beyond all question they might be discharged, by pardon, from this imprisonment. But where the imprisonment, as in the present case, is not a specific part of the sentence, but simply an alternative in the nature of a remedy, to secure the payment of the fine, the power of the President cannot be less than in the former case.
So far as all private parties are concerned, the imprisonment is a mere matter of remedy, which can be discharged without divesting the beneficiaries of any rights; and since imprisonment for debt has been abolished, it is reasonable, under the circumstances, that this peculiar remedy should be discharged.
III. By another form of limited pardon, the President may discharge Drayton and Sayres from their imprisonment, also from all fines and costs in which the United States have an interest, without touching the rights of other parties.
This would set them at liberty, but would leave them exposed to private proceedings at the instigation of the owners of the "transported" slaves, if any should be so disposed.
IV. By still another form of pardon, reference may be made to the Maryland statute of 1782, under which the Governor is authorized "to remit the whole or any part of any fine," without any exception therefrom; and this power, now vested in the President, may be made the express ground for the remission of all fines and costs due from Drayton and Sayres. By this form of pardon the case may be limited, as a precedent hereafter, to a very narrow circle of cases. It would not in any way affect cases arising under the general laws of the Union.
In either of these alternatives the great object of this application would be gained,—the discharge of these men from prison.
Charles Sumner.
May 14, 1852.
Remarks in the Senate, May 26, 1852.