Mr. President,—The proposition to terminate the Reciprocity Treaty has been mystified in various ways. There has been mystification because it came from the Committee on Foreign Relations, as if that committee, to which are referred all treaties and questions with foreign powers, was not the proper committee to consider it, according to the usages and traditions of the Senate. Pray, what other committee could so justly deal with it?

There has also been illusiveness in argument, by accumulation of statistics and figures without end. We have been treated to calculations, showing the increase of commerce since the treaty, and also the relative increase of exports and imports. To these calculations I am no stranger; but, after careful study, I am satisfied that it is impossible to find in them any terra firma on which to stand. They are little better than quicksand, or a deceptive mirage.

In the remarks which I submitted to the Senate yesterday I declined to dwell on these calculations, for I saw, that, while involving large amounts, they were uncertain, inconclusive, and inapplicable. With one theory of political economy they seemed to point one way, and with another to point another way. If, for instance, you accept the early theory that commerce is disadvantageous where imports exceed exports, they tell against the treaty; but if you accept the opposite theory of later writers, they tell the other way. All this assumes that they are applicable. But nobody is able to show that the general increase of commerce since the treaty has been caused by the treaty. Other agencies have had their influence; and it is difficult to say what is due to them, and what to the treaty.

In this uncertainty, I prefer to rest the proposition on the simple ground that the national revenue is impaired by this treaty. Authentic figures place this beyond controversy.

I forbear now all details, and content myself with stating the indubitable conclusion. The national revenue is impaired in two ways: first, at the custom-house on our frontier, which, under the operation of the treaty, yields little or nothing, when it might yield much; and, secondly, it is impaired through the check and embarrassment the treaty causes in our internal taxation. There is failure of duties and of excise. It is not enough to say that there is a countervailing advantage in the increase of our commerce. The conclusion is none the less exact, that the national revenue is impaired. And the question is distinctly presented, whether, at this critical moment, in a period of war, when the whole country in its wealth and labor is contributing to the support of Government, any good reason can be assigned why the commerce of Canada should be exempt from contribution. Commerce elsewhere, manufactures, business, income, tea, coffee, books, all pay tribute. The tax-gatherer is everywhere except on the Canadian frontier. At home there is not an interest, hardly a sentiment, free from taxation. Surely there is nothing in the recent conduct of Canadians to make us treat them better than we treat ourselves.

There is another consideration which is decisive, even if others fail. In view of existing Public Opinion, and considering the criticisms of the treaty, it is important that our relations with Canada should be carefully revised in the light of experience. The treaty, in authorizing its termination at the end of ten years, has anticipated this very exigency. But such revision cannot be made advantageously without the proposed notice. In the case of a lease, with a right to terminate it at the end of ten years on a year’s notice, the landlord, if the character of the lease had been called in question, would not hesitate to give the notice, if for no other reason, that he might revise the terms anew on a footing of equality. For like reason we must give the notice to Great Britain. We must untie ourselves now, even if we would tie ourselves again for the future. The notice will leave us “master of the situation” to this extent at least, that we shall be free to act according to the requirements of the public good. Without this notice there will be no foothold for diplomacy or legislation; but the notice will be a foothold from which we may accomplish whatever is proper and just. The treaty may be reconsidered and then adopted anew, or it may be entirely changed, and we shall have a year for this purpose,—so that, when the Old expires, the New may begin.

THE EMANCIPATION PROCLAMATION AND EQUAL RIGHTS.

FREEDOM OF WIVES AND CHILDREN OF COLORED SOLDIERS.

MR. PRESIDENT,—Only a few days ago there was a call for three hundred thousand more troops. The country needs them, and it is the duty of Congress to supply them. To this end there must be no difficulty, impediment, or embarrassment in the way. All these must be removed. This is not all. There must be encouragement of every kind; and such is the character of the present proposition.

There can be no delay. The country cannot wait the slow action of Constitutional Amendment, as proposed by the Senator from Wisconsin [Mr. Doolittle]. Congress must act to the extent of its power, and any neglect of power on this question would be injurious to the public interests.

All will confess the humanity of the proposition to enfranchise the families of colored persons who have borne arms for their country. All will confess the hardship of continuing them in Slavery.

But the question is asked by many, and even by the Senator from Wisconsin, What power has Congress to set the families free?

Mr. Sumner. The question has been put again and again, and the purport of the speech of the Senator was in that sense. He argued that we were about to have a Constitutional Amendment which would supersede everything; that therefore this proposition was unnecessary, if not injurious. I so understood the argument of the Senator, and that it pointed directly to the question of power,—because I know the patriotism of the Senator too well to suppose, that, if in his opinion the power of Congress was beyond doubt, he would hesitate. I do not do the Senator injustice. I say, then, the question is asked, What power has Congress to set the families free? This is the single point on which I shall express an opinion.

My answer is, that Congress has precisely the same power to enfranchise the families that it has to enfranchise the colored soldier. The two powers are coincident, and from the same source.

It is assumed that Congress may enfranchise the colored soldier. This has been done by solemn statute, without reference to the conduct of his pretended owner. If we are asked the reason for such enfranchisement, it must be found, first, in its practical necessity, that we may secure the best service of the slaves, and, secondly, in its intrinsic justice and humanity. In brief, Government cannot be so improvident and so foolish as to seek the service of the slave at the hazard of life, without securing to him the boon of freedom. Nor, if Government were so bereft of common sense as to forego this temptation to enlistment and efficient service, can it be guilty of the unutterable meanness of using the slave in the national defence and then returning him to bondage. Therefore the slave who fights is enfranchised.

But every argument, every consideration, which pleads for the enfranchisement of the slave, pleads also for the enfranchisement of the family. There is the same practical necessity for doing it, and the same unspeakable shabbiness in not doing it.

There is no principle of law better established than this, that an acknowledged right carries with it all incidents essential to its exercise. I do not employ technical language; but I give the idea, founded in reason and the nature of things. It would be vain to confer a right or a power, if the means for its enjoyment were denied. From this simple statement the conclusion is irresistible.

In conferring upon Congress the power to create an army, the Constitution conferred therewith all the powers essential to the exercise of the principal power. If Congress can authorize the enlistment of slaves, as it indubitably can, it may at the same time authorize their enfranchisement, and by the same reason it may authorize the enfranchisement of their families,—and all this from the necessity of the case, and to prevent an intolerable baseness.

A Scottish patriot, nearly two centuries ago, exclaimed in memorable words, which I am always glad to quote, that he would give his life to serve his country, but would not do a base thing to save it.[44] If there be any value in this declaration, it may be invoked, when it is deliberately argued that the National Government can create an army, and in this service can enfranchise the slave it enlists, but is impotent to enfranchise his family. I know not how we can use his right arm and ask him to shed his blood in our defence, and then hand over his wife and child to bondage. The thought is too vile. The human heart rejects the insufferable wrong.

But it is said the slave has no family. Such is the argument of Slavery. For all that he has, as well as all that he is, even wife and child, belong to another. Surely this unrighteous pretension will not be made the apology for a denial of rights. If the family of the slave be not designated by law, or by the forms of legal marriage, then it must be ascertained by the next best evidence possible,—that is, by cohabitation and mutual recognition as man and wife. And any uncertainty in this evidence can only be regarded as a natural incident of Slavery. As men cannot take advantage of their own wrong, so slave-masters cannot take advantage of Slavery. Any other rule would practically unite with Slavery in denying to the slave wife and child.

There is a well-known French maxim, that “it is only the first step which costs”; and here permit me to say, it is only the first stage of the argument which merits attention. Concede that the soldier may be enfranchised, and then by the same constitutional power his family may be admitted to an equal liberty. Any other conclusion would be illogical as inhuman, discreditable alike to head and heart. There is no argument, whether of reason or humanity, for the enfranchisement of the soldier, which does not plead equally for that of his family. Nay, more,—I know not how we can expect a blessing on our arms while we fail to perform this duty.

I cannot close without declaring again my opinion, that Congress at this moment is complete master of the whole subject of Slavery everywhere in the United States, even without any Constitutional Amendment. It can sweep all out of existence, precisely as it can remove any other obstruction to the national defence, and all this by virtue of a power as indisputable as the power to raise armies or to suspend the Habeas Corpus. Future generations will read with amazement, that a great people, when national life was assailed, hesitated to exercise a power so simple and beneficent; and this amazement will know no bounds, as they learn that Congress higgled for months on the question whether the wives and children of our colored soldiers should be admitted to freedom.

MASSACRE OF THE CHEYENNE INDIANS.

MR. PRESIDENT,—Exceptional crimes require exceptional remedies. Here is an exceptional crime,—one of the most atrocious in the history of any country. There must be a remedy commensurate with the crime. And, Sir, the remedy, in order to be anything but a name, should be swift. It cannot wait the slow ceremony of ordinary proceedings. It must have promptitude such as can be imparted by the proposition now under consideration. I thank the Senator from Iowa for bringing it forward. Let us vote upon it, put it on its passage, speed it on its way; for only by doing so can we wash our hands of this blood.

THE LATE HON. EDWARD EVERETT.

TERMINATION OF TREATIES BY NOTICE.

But the Senator from Kentucky tells us that the original defect in the notice by the President is of such a character that it cannot be cured by any subsequent ratification; and he proceeds to present what he will excuse me if I call imaginary cases, which I think could hardly occur, and are widely different from that under consideration. I express no opinion on the cases he does present,—as, for instance, if the President, during the recess of Congress, should undertake to involve the country in war. Let that case take care of itself, when it arises for judgment. The case before us is more simple, and is one with regard to which there are no private rights or interests. It is a domestic question between Congress and the President. He has given the notice. As regards the Government of Great Britain, that notice, I cannot doubt, is perfectly valid. That Government will never call it in question. For our own security, and that our precedents may conform to just principles, we now propose by formal Act of Congress to throw over this notice of the President the shield of Congressional sanction; and the question is, Can this be done? Can Congress, by an act of ratification, impart to the original notice of the President that power and character which, without subsequent ratification, it would not have? On that point I content myself with reading the authoritative words of the Supreme Court of the United States in the decisions known as the Prize Cases. There the Court express themselves as follows.

All now proposed is that Congress shall ratify the notice to the British Government, and by retroactive operation give validity to it.

…

Mr. President, if this concerned private rights,—if, according to the language of the Senator from Kentucky, there were any question of meum and tuum,—there might be force in his argument. But no private rights are involved, and there are no private individuals affected in any way by the proposed ratification of the notice already given. Therefore I put out of view that suggestion. It is, then, simply a question of power on the part of Congress, with no question of private rights.

I conclude that Congress has the power, and I put my conclusion on two distinct grounds. The first is the reason of the case, its common sense; for without this power I can imagine difficulties or embarrassments in the administration of government. I say the power must exist in Congress of ratifying, if it sees fit, certain executive acts. The second ground is judicial authority. The Supreme Court of the United States, after careful consideration in recent cases which the country knows received the amplest attention and were most fully argued, has affirmed the power of Congress to ratify an executive act which without such ratification might otherwise be invalid. But I do not content myself with referring to that single decision, recent and authoritative as it is; I recall attention also to that earlier decision which is adduced in the Prize Cases, the case of Brown v. The United States, which is well known to all lawyers as one of the best-reasoned judgments in our books, and in that case you will find the same power attributed to Congress.

Therefore, on grounds of reason and of authority, I am not permitted to doubt that Congress may exercise this power.

RETALIATION, AND TREATMENT OF PRISONERS OF WAR.

Now, Sir, I believe that the Senate will not venture, in this age of Christian light, under any inducement, under any provocation, to counsel the Executive Government to enter into such open competition with barbarism. Sir, the thing is impossible; it must not be entertained. We cannot be cruel, or barbarous, or savage, because the Rebels we now meet in warfare are cruel, barbarous, and savage. We cannot imitate the detested example. We find no precedent for such retaliation in our own history nor in the history of other nations. We find no precedent, I say, in our own history. This question was one of the earliest presented to General Washington after taking command of the American forces at Cambridge. From his headquarters there, under date of August 11, 1775, he addressed a letter to General Gage, commander of the British forces in Boston, which, as I believe, contains the full extent to which a nation can honorably go; and I must say, that, as I read it, I felt new pride in that commander who thus early in the discharge of his great duties showed such insight into their proper limits and responsibilities. Addressing General Gage, he said:—

Then, reminding the British commander of the cause in which he was engaged, Washington continued:—

Senators about me say, “That is sound.” I am glad they say so; and if they can find in this correspondence any sanction of the savage system now inaugurated in Rebel prisons, let them point it out. The correspondence has its own limitations in the statement of facts on which it proceeds, which you will please observe. Prisoners had been thrown indiscriminately into a common jail for felons, and with no consideration for those of the most respectable rank, even when languishing with wounds and sickness; and some of them had limbs amputated in this unworthy situation. But there is, Sir, no such painful suggestion as that in our resolution: they had not “been subjected to treatment unexampled for cruelty in the history of civilized war, and finding its parallels only in the conduct of savage tribes,—a treatment resulting in the death of multitudes by the slow, but designed, process of starvation”: no such thing appears in the case; and the judgment of Washington was applied strictly to the facts before him.

This is not all. Search the history of our country, and you find that the practice is fixed, while the rule has received an accuracy of statement from which there can be no escape. I have before me the words of Chancellor Kent, in his valuable Commentaries:—

There you have the authoritative testimony of that great expounder of our history and of our jurisprudence, the late Chancellor Kent. I add also the testimony of another American writer, whom I have quoted more than once in this Chamber, General Halleck, who, in his work on International Law, thus expresses himself:—

I said, Sir, the practice proposed was without precedent in the history of other nations. I believe that I am right. I am confident that no authentic record can be shown where such savage treatment has been imitated in retaliation by a Christian power. One of the most learned writers on the Law of Nations, Vattel, dealing with this very subject, aptly puts the following question:—

That question strikes at the heart of this whole subject. What right have you to adopt any barbarous conduct because the barbarous enemy with whom you deal has set the example? This same eminent publicist, in another place, says:—

That statement covers the whole case. Why is it unlawful in retaliation to adopt poison? Because it is barbarous. And for the same reason it is unlawful for us to adopt starvation, to adopt all that cruel system of treatment so emphatically set forth in the preamble to this resolution. And while, Sir, I concede that by the Laws of War retaliation is permissible, yet it has its limits; and those limits, as I venture to say in the resolutions sent to the Chair as a substitute, are at least twofold: first, the retaliation must be useful, it must reasonably promise some practical result; and, in the second place, it must be in harmony with the usages of civilized nations. The retaliation now proposed is useless, for it can have no practical result; and it is not in harmony with the usages of civilized nations.

I have said that the Laws of War recognize retaliation, as appears in the recent most formal and explicit declaration to be found in the very elaborate “Instructions for the Government of Armies of the United States in the Field,”[53] prepared since this war began, under the direction of a learned commission, and by the pen of one of the ablest and most accomplished publicists of our age. I refer to Dr. Lieber, for many years professor in South Carolina College, and now professor in Columbia College, New York. In these Instructions the general law of retaliation is affirmed.