treaties for months;" and the ex-President added: "I told Mr. Curtis that there were nine or eleven treaties before the Senate from the State Department that had been there several months, and had been in Mr. Sumner's hands, but had never been laid before the committee. I wrote from the spot, Long Branch, to the State Department, and to my own surprise there proved to be more treaties than I had said that had been in Mr. Sumner's own hands for a longer time than I expected. . . . The work of that committee, when Mr. Cameron took charge, was in a most deplorable state, due entirely to Mr. Sumner's obstructiveness and dilatoriness." General Grant thus indicated the State Department as the source of his information, and from it he obtained a formal list of the "pigeon-holed" treaties. Mr. Fish, as its head, being the only officer connected with it who was brought into constant communication with the President, and having six years afterward been quick to support a renewal of the charge, appears as the author of the original charge which General Grant repeated with so much emphasis in his interview.

The charge of suppressing important public business, thus authorized by Mr. Fish, and many times repeated by himself and others who relied on him as authority, is assuredly a very grave one. It implied official unfaithfulness, and even moral delinqueney. Whether a statesman, living or dead, was able, wise, or farsighted, is always a fair question for discussion; but the charge of moral delinquency, such as Mr. Fish originated and spread, and that too against one who could no longer speak for himself, could only be justified by undoubted evidence. Stated so positively and in such a quarter, it was likely to obtain general credence; and, but for a fortunate suggestion that the Senate records should be searched and made known, this calumny might have remained forever attached to an eminent Senator.

On November 21st the injunction of secrecy was removed from the Senate proceedings, on the motion of Senator Hoar, of Massachusetts, and Mr. Fish's repeated charge found to be untrue. Mr. Sumner's chairmanship ended March 3, 1871. It was found that he reported the Mexican protocol (referred December 8, 1869) on January 11, 1870; the Darien Canal treaty with Colombia (referred April 1, 1870) on July 13, 1870; two treaties with Peru and one each with Guatemala and Nicaragua (all four

referred December 8, 1870) on January 12, 1871; one with Salvador (referred January, 1871) on March 1, 1871; one with Great Britain (referred February 28, 1871) on March 1, 1871, leaving only the Austro-Hungary treaty (referred December 14, 1870) unreported-eight of the nine treaties being thus reported by Mr. Sumner, which Mr. Fish charged he had "pigeon-holed" in his committee. Not only did he report them, but he reported them with more than the dispatch customary with committees. Five of the nine were kept with the committee only about a month, and that month a broken one, which included the holiday recess, and a sixth was reported the very next day after it was received. The treaty with Salvador was with the committee seven weeks, the last fortnight of which Mr. Sumner was prostrated with a severe illness, which kept him from the Senate. The Darien Canal treaty remained with the committee only three months, although it is still pending in the Senate, which has not been able to come to a conclusion upon its merits for the period of nearly eight years since it was reported. When we consider the deliberation and obstructions to which public business is subjected, particularly in Congress, Mr. Sumner will be regarded by all who study these dates as having dealt with his share of it with extraordinary dispatch. Senator Hoar, recently in this REVIEW, recorded his amazement at the proof of diligence which this record gives, all the more impressive because of the various duties pressing on Mr. Sumner, and his belief that no other committee could show such a record.

Eleven days after Mr. Fish had appeared by letter in the Herald, his charge against Mr. Sumner was shown to be untrue by the solemn record of the Senate. What, then, was his duty? He had made the charge to ex-President Grant, who was spreading it in Europe and the United States. He had repeated it by letters and interviews. He had made it, not against a living rival, but against a dead Senator, one with whom he had often held sweet counsel. The code of honor, the Christian canons, the instincts of human nature, commanded an instant retraction and apology under his own hand. The case did not admit of a vicarious defense. There are some duties which cannot be delegated-and one is that of recalling a false imputation against the character of another, and most of all when cast at the speechless

dead.

But all at once Mr. Fish was silent. One who had five times in three weeks come before the public, and chiefly as a volunteer, all at once stopped writing letters and meeting interviewers; and from November 21, 1877, when his accusations were shown to be untrue by the publication of the Senate journal, he has maintained an impenetrable reserve. Withdrawing at this interesting stage of the discussion, he seems to have obtained a substitute to take his place. Mr. J. C. B. Davis, his former Assistant Secretary of State, spares time from new duties on the Court of Claims to write a paper for the Herald in his behalf. This mode of justifying by proxy has two advantages: it relieves Mr. Fish of the unpleasant necessity of stating at the outset how he came to make such untrue charges against a dead Senator; and further enables him to avoid responsibility for new positions taken in his defense, which may be found as unsubstantial as his original charge of "pigeon-holing" treaties. It is even better for the purpose than "interviewing,” in which the interviewed, when his statements have been shown to be contrary to the fact, with great facility changes his positions, coolly throwing on the interviewer the responsibility of misapprehending him. Not, however, from Mr. Davis or any other substitute, but from Mr. Fish himself, under his own hand, an explanation is required by every law of moral duty.

Mr. Davis's method of narration is certainly unique. He relates some conversations where plainly he was not present; others, in a way that leaves the reader in doubt whether he is reciting another's story or his own; talks of the thoughts, anxieties, remembrances, and states of mind of Mr. Fish, as if the two were one; and recounts frequent and long interviews at Mr. Fish's house matters of which Mr. Fish is the only competent witness -and in some instances he differs radically from Mr. Fish's versions. He undertakes to say, giving no authority, what took place between Mr. Sumner and Mr. Fish, January 13, 1871, at Mr. Sumner's house, when they two were alone together; and what Mr. Fish said to Senators, when he (Mr. Davis) does not claim to have been present. The paper abounds in vague phrases as "it was said;" "it was no secret ;" "one Republican Senator went so far;" "the President and Mr. Fish stated to more than one Senator;" "there appeared on the part of leading VOL. CXXVII.-NO. 263.

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Republican members "—in all which the generality of allegation and suppression of names make any attempt to test the truth of the statements impossible. If he is a witness, let him qualify by showing presence and opportunity; and, if he is only acting as amanuensis of Mr. Fish, let him say so. A paper of such a character as he has given carries no weight as evidence.

One part—and a large part it is—of Mr. Fish's as well as of Mr. Davis's statements ought to be eliminated from the discussion. They write with facility of the conversations of Mr. Sumner which are not now subject to his denial, or the different version he might give; and they undertake to put in testimony of this kind which they did not give in his lifetime. Recent statutes deny to a party the right to testify to the conversations of a deceased adversary, for manifest reasons of public policy. The rule is justly applicable to other than legal controversies, and should be applied more stringently against parties whose previous allegations against the deceased have proved untrue. Falsus in uno, falsus in omnibus, is a maxim which, though subject to limitations, holds a legitimate place in the law of evidence. The public will require better proof of Mr. Sumner's conversations, manner, and thoughts, than such testimony from such a source.

Mr. Davis in his paper jumps the charge of "pigeon-holing with an acrobat's dexterity. He says that, "at or about the time the change [Mr. Sumner's removal] took place, the President and Mr. Fish stated to more than one Senator that the current business of the Department of State had been neglected in the Senate during the present session; and particularly that no treaty which had been sent to the Senate during the session which followed Motley's recall had been acted on." This shifting of positions is adroit, but it will not answer its purpose. Mr. Fish's uniform charge, as given to the public and to General Grant, is "pigeon-holing" in committee, not inaction in the Senate; and the list of nine treaties which he gave was one which he alleged had not been reported, not a list of treaties reported, which were not pressed in the Senate. If Mr. Fish told Senators what Mr. Davis asserts, then he gave them a different account from what he has given in letters and interviews. Mr. Davis very quietly slips in this new charge in place of the old one, without calling

the reader's attention to the substitution. Let it be noted, too, that he associates the ex-President with Mr. Fish in the making of charges to Senators; while the former in his interview denied any participation in the removal, though pleased to hear that it had taken place.

Mr. Davis says, "The unrevealed records of the Senate in executive session will show whether Mr. Sumner made any attempt during that winter [1870-'71] to secure the action of the Senate on these treaties." They might, or they might not. Mr. Sumner might have appealed urgently to Senators to take up the treaties, and the general expression might have been against his appeal, and there the matter ended without a record. If Mr. Davis can find anything in the Senate journals to impeach Mr. Sumner's fidelity, let him produce it, and not darkly hint at points against him which do not exist. On the assailant rests the burden of proving his charges. There is a presumption in favor of the right-doing of public business which has passed into a maxim. Reputations are to be assailed only by proved facts, not by cunning insinuations. Mr. Sumner's friends have no occasion to fear records which have already so well exposed the calumnies industriously circulated against him.

The charge which Mr. Davis now substitutes for the original one is, that Mr. Sumner "did not move forward the treaties and secure the Senate's action upon them." No such intimation was made in the caucus or in the Senate when Mr. Sumner's removal was debated March 10, 1871; nor by President Grant, when giving reasons for it in the summer of 1871; nor by Mr. Conkling, July 23, 1872, when, at the Cooper Institute, he defended with much elaboration the removal, stating instead, what is now dis proved, that Mr. Sumner did not report "six or seven treaties;" nor by Mr. Howe, Mr. Hamlin, Mr. Cameron, and Mr. Anthony, when they explained in the Senate the cause of the removal April 28, 1874; nor by General Grant, in his interviews in 1877-'78 in Scotland or in Egypt; nor by Mr. Fish, in his five appearances before the public in October, November, and December, 1877; but it is, for the first time, made by Mr. Davis, January 3, 1878, nearly seven years after Mr. Sumner's removal, and almost four years after his death, and only when Mr. Fish's repeated accusation has been completely disproved by the record.