"1^. Aop ^ 1898 '^'J ^ GANHOT LEAVE THE LIBRARY. Chap. Shelf.. L4-S^ G-lS' WYPT) COPYRIGHT DEPOSIT. LIBRARY OF CONGRESS. ^:^^^t'^:^'^:'^:'^:^^^^'^'.^^^r^'^'^.'^:^.^^^^^ WASHINGTON VS, JEFFERSON THE CASE TRIED BY BATTLE IN 1861-65 BY 5^/ MOSES M.^RANGER FORMERLY CAPTAIN i8tH U. S. INFANTRY, LIEUTENANT- COLONEL I22D OHIO VOLUNTEER INFANTRY, BREVET COLONEL U. S. VOLUNTEERS, AND CHIEF JUDGE OF THE SUPREME COURT COMMISSION OF OHIO " The Constitution according to their interpretation of it would be a cipher. ' ' " Measures are systematically and pertinaciously pursued, which must eventually dissolve the Union, or produce coercion.-' Washington BOSTON AND NEW YORK HOUGHTON, MIFFLIN AND " COMpA' If^ ^4 APR 1-1898 1st CO 1893. ir\ / COPTEIGHT, 1898, BY MOSES M. GEANGEB ALL BIGHTS BESEBVED CONTENTS PAGE I. Introductory Chapter 1 n. A Constitutional Nation ...... 16 ni. Congress and the Territory 44 IV. How Civil War might have been Pre- vented 81 V. Why Eleven States seceded ...... 122 VI. Secession and the Army ...... 158 VII. War and Reconstruction 167 WASHINGTON VERSUS JEFFERSON DfTRODUCTORY CHAPTER The war of 1861-65 will always com- mand the interest of both North and Scjath. No one can understand how and why it came, or fairly judge the parties to it, with- out an accurate knowledge of those facts in our history that "make up the case" that was then submitted to trial by battle. Those facts have not yet been stated in " ordinary and concise language," in their proper relation to the issue, and to each other. The " plain people " have not time or money to expend upon the many small books, each telling a part of those facts, or upon any of the large ones that deal with the whole matter. Therefore I now try to so state them that every one can spare the 2 WASHINGTON VERSUS JEFFERSON money to buy and the time to read my small book, and yet find in it so complete an out- line of the material facts that all may either form a judgment satisfactory to themselves, or be aided by my narrative in the selection of such matters as seem to them to require further investigation. My readers will find in the following chapters the following facts : In the fall of ^ 1798 Jefferson wrote in the Kentucky reso- / lutions the Confederate or secession theory of ' the Constitution, but concealed his author- ship. Washington, who held the national, or Union theory, condemned the doctrine of those resolutions. The last year of his life was troubled by fears for his country. His last work for that country was to induce Patrick Henry, most eloquent of Virginia's sons, to pubhcly oppose that doctrine. He wrote Henry that if that doctrine should be persisted in, either a dissolution of the Union or coercion must follow. The basis of the doctrine was the claim that the Con- stitution was a treaty between sovereign states, by whom no arbiter had been agreed upon. An examination of the proceedings in the Constitutional Convention of 1787 INTRODUCTORY CHAPTER 3 shows that that body, having satisfied them- selves of the inefficiency of a confederate government^ early in its session resolved to frame a national government, and later car- ried that vote into effect. On motion of a Virginia delegate, it voted to estabhsh a supreme judiciary to decide all questions that might affect the peace between the states, and so framed the judiciary article as to make the national judiciary " the arbi- ter" that Jefferson's resolution declared had not been provided. The convention signifi- cantly omitted to place in the Constitution the words, " Each State retains its sover- eignty," with which article II. of the Arti- cles of Confederation opened ; discarded the " preface " by which those Articles were proclaimed as an agreement between thirteen specified states; announced the Constitution to the world as ordained and established by " The People of the United States " for themselves and their posterity; vested in the national government all the great powers usually exercised by sovereign states ; prohib- ited the states from using any of those pow- ers; and declared that Constitution and the laws made pursuant thereto the supreme 4 WASHINGTON VERSUS JEFFERSON law of "the land." Yates and Lansing, dele- gates from New York, well-equipped lawyers, deemed the instrument national, a departure from the confederate form, and therefore withdrew from the convention because their commissions only authorized them to revise and amend the "Articles of Confederation." The Supreme Court of the United States unanimously decided in 1816, 1819, and 1824 that the Constitution was not made by the states, but by the people of the United States ; and that although the states were sovereign before they ratified the Constitu- tion, they, by that ratification, had ceded sovereignty to the nation. An examination of the proceedings of the convention, and of the Constitution, also shows that that body was of the opinion that slavery was an evil ; that the national government ought to have power to prevent its increase ; that the convention expected the gradual aboHtion and final extinction of the institution ; and gave to the govern- ment powers adequate to completely prevent its extension. In 1787 and 1789 the entire territory of the nation was protected from slavery by INTRODUCTORY CHAPTER 5 the ordinance for the government of the land northwest of the river Ohio. In 1790 North Carolina, by the language of her deed ceding Tennessee to the nation, re- cognized the nation's power to prohibit sla- very, by stipulating in the deed that that power should not be used in Tennessee. In 1802 Georgia did the like, in her deed con- veying what is now Alabama and Missis- sippi. In 1820 the act called the " Missouri Compromise " prohibited slavery in almost nine tenths of the Louisiana ceded by France, leaving to slavery only those tracts that were covered by those stipulations of the treaty of 1803 that protected the slave- holding settlements in their rights and pro- perty. Neither in 1787 nor in 1820 did our nation adopt as a policy a division of its territory between freedom and slavery. In each instance it forbade slavery in all of its territory that was not incumbered by the stipulations of the deeds or treaty under which it held title. John C. Calhoun first introduced into leoislation the idea that the Missouri Com- promise line was intended for a sort of iso- 6 WASHINGTON VERSUS JEFFERSON thermal limit of slavery, when he negotiated terms for the annexation of Texas. In 1847 Congress refused to recognize it as such a line, and refused to extend it to the Pacific Ocean. The North, by a large majority, voted to prohibit slavery in the Mexican cession, but, believing with Web- ster that nature had made impracticable the establishment of African slavery in New Mexico and Utah, and yielding to the ap- prehensions, demands, and threats of the South, Congress adopted what are known as "the compromise measures of 1850." At that time no one claimed that the legislation of that year affected in any manner the acts of 1820, Missouri Compromise ; of 1845, Texas Annexation ; of 1848, Oregon Act ; or of 1849, Minnesota Act. Those acts, together with the legislation of 1850 (which latter acts applied only to New Mexico and Utah), fixed the relation to slavery of all the nation's land. In 1852 the Whig and Democratic na- tional conventions pledged their respective parties to resist every attempt to reopen the slavery question, come from whatever quarter it might. Satisfied with the existing laws INTRODUCTORY CHAPTER 1 o£ Congress, which excluded slavery from all of the Louisiana cession not included in the States of Louisiana, Missouri, Arkansas, and the land of the Cherokees, Choctaws, Chick- asaws, Creeks, and Seminoles, and from all that had been Texas north of 36° 30', and with the laws of nature, which practically- prohibited the establishment of African sla- very in New Mexico and Utah, the North, ex- cepting Massachusetts and Vermont, joined with the South in placing in the presidential chair the South's candidate, Franklin Pierce, of New Hampshire, and elected a Congress most friendly to that section. Although a proposal to repeal one of the existing laws of Congress about slavery was plainly "a reopening of the slavery question," Presi- dent Pierce and Congress followed the lead of Senator Atchison, of Missouri, repealed the eighth section of the Act of March 6, 1820, and opened the newly organized ter- ritories of Kansas and Nebraska to slavery. This aroused the North, whose masses, al- though unfriendly to abolition societies and their efforts against slavery in states, were as strongly opposed to the extension of that institution as the great majority of the con- 8 WASHINGTON VERSUS JEFFERSON vention of 1787 and the leading statesmen of that time, both North and South, had been. The House chosen in 1854 elected a Repub- lican speaker, and that party gained largely in the Senate in 1854 and 1856. The Cin- cinnati Democratic platform of 1856, by its pledge to allow the people of the territories a free and fair vote on their constitutions, retained conservative New Jersey, Pennsyl- vania, Indiana, and Illinois, and thereby elected Mr. Buchanan, and gave him a Con- gress Democratic in both houses. His pledge, through Governor Walker, to secure for the legal electors of Kansas a fair vote upon her Constitution, quieted that disturbed territory, and so affected elections elsewhere that the Republican plurality in Ohio fell from over 15,000 in 1855 to 1503 in 1857. The "obiter dicta" of Chief Justice Taney and his four associates in the Dred Scott case caused the South to demand congres- sional legislation for the protection of sla- very in the territories. Yancey and others, who had long desired and labored for seces- sion, induced Alabama Democracy to in- struct her delegates to withdraw from the Charleston Convention in case that body INTRODUCTORY CHAPTER 9 would not resolve in favor of a cono-ressional slave code for the territories. Althoiio^li the convention accompanied its refusal to so resolve by a pledge to conform to such decisions upon the rights of slaveholders as the Supreme Court had made^ or should thereafter make, Alabama, with South Caro- lina, Arkansas, and the Gulf states, with- drew, and so divided the party as to make Repubhcan success probable. Yancey and the veteran secessionists believed the ulti- mate success of their revolutionary plans assured and were joyous. The demand for a congressional slave code caused additional masses of old-fashioned anti-slavery men, who were not abolitionists, to vote for i\Ir. Lincoln, and added the conservative states of the North to the Repubhcan column. In 1858 Mr. Lincoln, in his debate with Senator Douglas at Jonesboro, Illinois, had declared that it was the duty of Congress to enact all laws necessary to protect and en- force every constitutional right ; that the Constitution gave the South a right to an e:ffective fugitive slave law ; that under his oath an anti-slavery congressman was bound to vote to make such a law effective ; and 10 WASHINGTON VERSUS JEFFERSON added that he would so vote if in Congress. This speech was pubhshed and read every- where at the North for two years^ and by the nomination and election of Mr. Lincoln the Eepublican party indorsed his opinion. Although Massachusetts, Vermont, Michi- gan, and Wisconsin legislatures had passed '' personal liberty bills " that conflicted with the national Constitution, the state courts in which cases under them were tried held these laws unconstitutional except in Wis- consin. In 1858 the Supreme Court of the United States. reversed the Wisconsin judg- ' ments, and from that time the fugitive slave law was so effectively enforced that in 1860 the number of escaped slaves was twenty per cent, less than in 1850, although the num- ber of slaves had been increased by about 500,000. These facts were not generally known or understood at the South. The astute secession conspirators, by newspapers, speeches, pamphlets, by talk everywhere, assured their people that the Republican party was fanatical in its opposition to sla- very ; that the fugitive slave law was nullified at the North ; that the next attack would be upon slavery in the. states ; and that the INTRODUCTORY CHAPTER 11 South could not with honor or safety remain in the Union. In fact, the Kansas struggle for four years between the South with a territorial slave code recognized by two presidents as in full force in Kansas, with the influence of the national government, the aid of its officers and troops on the one side, and Northern immigration backed by Northern sympathy on the other, had resulted in a vote on August 2, 1858, of 11,300 against coming in as a slave state, and only 1,788 for so coming. The census of 1860 showed only 2 slaves in Kansas, 15 in Nebraska, 29 in Utah, and none in New Mexico. The last two territories had been open to slavery for ten years, the other two for six years. These facts demonstrated that congressional prohibition was no longer necessary to pre- vent the conversion of a free territory into a slave state. The election of November 6, 1860, gave to the Republicans the presidency and vice- presidency for four years from March 4, 1861, and to the Democrats sufficient ma- jorities in both houses of Congress to control legislation for the first two years. The 12 WASHINGTON VERSUS JEFFERSON South had a majority in the Democratic caucus of each house. If no state had at- tempted secession, it was certain that no '^ legislation unfavorable to the South could f be enacted for two years. As Mr. Lincoln's popular vote lacked about 900,000 of a majority, clear-headed statesmen knew that unless the South and the Democratic Con- gress should commit some folly, the elec- tions of 1862 would increase that party's majority in both Senate and House. Mr. Lincoln as President was publicly committed to an effective enforcement of the fugitive slave law. The Senate, controlled by South- ern senators, would not confirm any unwor- thy or unsuitable of&cials for duty in any Southern state. His opinions and those of his party on slavery were the same as those held by " the Fathers " of the Revolution, of the Constitution, and of the days of Washington, Jefferson, and Madison. His character and his abilities were held in high repute by all who knew him. The Congress that assembled in December, 1860, although made RepubHcan by Southern withdrawals, organized the territories of Dakota, Colo- rado, and Nevada by bills drafted by the INTRODUCTORY CHAPTER 13 Breckinridge senator from Missouri, and submitted to the states an amendment to the national Constitution securing slavery in each state forever against everything save the vote of the state itself. Common sense, calmly examining the situation now, plainly sees that the appre- hensions and excitement of the Southern people in 1860-61 were groundless, that they could not and would not have suffered in honor, in property, or in prosperity by reason of Mr. Lincoln's occupancy of ^he executive chair; that if their senators and representatives had taken and kept their seats, by 1862 the whole country would have resumed the quiet of 1852 ; that in fact the legislative war about slavery had been fought out ; that the antagonistic ele- ments in the Kepublican party would have separated, because the Kansas election of 1858 and the choice of Mr. Lincoln in 1860 had practically put an end to the extension of slavery ; that the North would again have devoted itself to business and the South have resumed its influential role in politics. If the veteran workers for secession had permitted the Southern people to confer 14 WASHINGTON VERSUS JEFFERSON together even in a convention of the Gulf states, Georgia, and South Carohna, hefore any state seceded, I believe able debaters would have made the situation so clear that no ordinance of secession would have been passed even by South Carolina. Those veteran workers also so believed. So they everywhere charged that delay was dishon- orable as well as dangerous. South Carolina seceded and, amid unreflecting excitement, the Gulf states and Georgia followed in single file. The elections of 1860 and 1861 proved that all the other slave states were decidedly of opinion that they ought not to secede; fully two thirds of the South so thought. The aforesaid veteran workers counted upon the faith of those eight states in Jefferson's resolutions of 1798. That faith forbade any attempt to compel the people of a seceding state to obey the laws of the United States. When war came, that faith forced Virginia, North Carolina, Ten- nessee, and Arkansas to secede. The South was the victim of those veteran secession workers. When war came, as the Constitution had vested in the nation the power to wage war INTRODUCTORY CHAPTER 15 without limitation, all the laws of war be- came apphcable as soon as the nation recog- nized the Confederate States as belligerents. This recognition, in law, dated from April 19, 1861, the day a blockade of the ports in the seceding states was proclaimed. As the war ended in the surrender of all the armies and warhke positions and supplies of the Confederacy, without any treaty or con- vention stipulating what political rights the states and people who for four years had been "public enemies" should retain, the laws of war vested in the nation the power to determine what those political rights should be, subject only to one hmitation ; to wit, they must be recognized as ha\ang all the rights of residents upon unorganized territory of the nation. How ignorance of this application of the laws of war affected reconstruction is dis- cussed in my concluding chapter. II A CONSTITUTIONAL NATION In the autumn of 1798 Washington, ex- President of the United States and Lieuten- ant-General commanding the army, was at his home, Mount Vernon. Jefferson was Vice-President and active in leadership of the anti-Federahsts. A very hitter political war was being waged between the adminis- tration and opposition parties about the " aHen and sedition " laws. Mr. Justice Chase, in the United States Circuit Court, had held said laws constitutional. Jeffer- son feared that the Supreme Court of the United States would also so hold. He there- fore determined upon a claim that would enable his party to maintain its position, that those laws were unconstitutional, even against such a decision by that court. He wrote a series of resolutions ; gave them to George Nicholas, of Kentucky, who pledged himself "to never make known the author^" A CONSTITUTIONAL NATION 17 and to introduce them in tlie Kentucky- legislature. With slight change they passed that body on November 10, 1798. I quote the first : — 1. Resolved, That the several states composing the United States of America are not united on the prin- ciple of unlimited submission to their general govern- ment ; but that, by a compact under the style and title of a Constitution for the United States, and of Amendments thereto, they constituted a general gov- ernment for special purposes, delegated to that gov- ernment certain definite powers, reserving, each state to itself, the residuary mass of rights to their o^n self-government ; and ^ that whensoever the general government assumes undelegated powers, its acts are unauthoritative, void and of no force ; that to this compact each state acceded as a state, and is an in- tegral party ; its co-states forming, as to itself, the other party ; that the government created by this compact was not made the exclusive or final judge of the extent of the powers delegated to itself ; since that would have made its discretion, and not the Con- stitution, the measure of its powers ; but that, as in all other cases of compacts among powers having no common judge, each party has an equal right to judge for itself, as well as of infractions as of the mode and measure of redress. Late in December, 1798, Washington learned of the adoption of this resolution by the Kentucky legislature. On December 18 WASHINGTON VERSUS JEFFERSON 25 he wrote to Lafayette, " The Constitu- tion, according to their interpretation of it, would be a cipher." See vol. xi. Washing- ,i ton's Works, p. 378. On January 15, 1799, he wrote to Patrick Henry urging him to take an active part in the then approaching political campaign in Virginia, and to op- pose the doctrine of this resolution. Henry did so, and in his speech at Charlotte Court House declared in substance that Virginia had no more right to secede from the Union than Charlotte County to secede from Vir- ginia. Washington further wrote to Henry, re- ferring to the course of Jefferson and the anti-Federalists, " Pleasures are systemati- colly and pertinaciously pursued which TJiust eventually dissolve the Union, or pro- duce coercionJ^ Vol. xi. Washington's Works, p. 398. This prophecy of Washington was ful- filled in 1860-1865. The issue between Washington and Jef- ferson as to the nature, meaning, and effect of the Constitution was finally decided in the " trial by battle " in favor of Washing- ton. This decision was also in exact ac- A CONSTITUTIONAL NATION 19 cordance with the plain meaning of the Constitution itself. Believing that the peo- ple ought to possess a brief outline of the argument upon which the national construc- tion is based, I submit the following : — In May and June, 1787, delegates from twelve states (Rhode Island sent none) met at Philadelphia, commissioned, as most of them were, to revise and amend " The Ar- ticles of Confederation." The utter inefficiency of that form of government had become apparent. Af^pr conference, consultation, and discussion, the delegates almost unanimously agreed that it would be useless to attempt to revise or amend its articles. The great majority of the delegates were of opinion that, notwith- standing their commissions were to revise and amend the Articles of Confederation, they ought to confer together and recom- mend to the states a form of government that would remove the evils of the then existing system. They felt assured, and the result proved that they were right, that no state would censure them for such recom- mendation. On May 30 Randolph of Virginia moved 20 WASHINGTON VERSUS JEFFERSON the adoption of a resolution drafted by Gouverneur Morris reading thus : " Re- solved, that a national^ government ought to be established, consisting of a siqoreme legislative, executive, and judiciary." This was adopted by the votes of Massachusetts, Pennsylvania, Yu^ginia, North Carohna, South Carolina, and Delaware : Ayes 6. Connecticut alone voted " no." She after- wards concurred. New York was divided. The delegates from New Hampshire, New Jersey, Maryland, and Georgia had not ar- rived. This decision was carried into effect. A national government, supreme executive, legislative, and judicial, was created. To emphasize the difference between the old confederation and the new nation, they adopted the great preamble, written by the same Gouverneur Morris, instead of the pre- face that stood before the Articles of Con- federation. That preamble and that preface I now present side by side. To read and compare them is to see that the Constitution was intended to be a very different creation from the Confederation. 1 All italics in quotations are mine. — The Author. A CONSTITUTIONAL NATION 21 The Preface. The Preamble. Articles of Confedera- We, the people of the tion and perpetual union United States, in order to between the states of New form a more perfect union, Hampshire, Massachusetts establish justice, insure Bay, Rhode Island and domestic tranquillity, pro- Providence Plantations, vide for the common de- Connecticut, New York, f ense, promote the general New Jersey, Pennsylva- welfare, and secure the nia, Delaware, Maryland, blessings of liberty to our- Virginia, North Carolina, selves and our posterity. South Carolina and Geor- do ordain and estabhsh gia. this Constitution for the United States of America. The old was presented as the league, or treaty, made by and between thirteen states ; the new appeared as the act of a people ; one people, not contracting, agreeing, stipu- lating, but ordaining and esfahlishing. Lansing and Yates, good lawyers, delegates from New York, withdrew because in their opinion the Constitution made a national and not a confederate government ; they felt bound by their commissions to revise and amend " The Articles of Confedera- tion " and not to take part in framing a different form of government. This with- drawal confirms our view. It is true that the same thirteen states 22 WASHINGTON VERSUS JEFFERSON consented to and ratified the Constitution. That consent was necessary in order that the old government might end without revolu- tion. While the convention was in session there was " a people of Virginia/' " a peo- ple of Massachusetts/' and the like, but no " people of the United States." The con- vention, by submitting to the states the Constitution and preamble worded as they were, asked them to consent that the inhab- itants of all should thenceforward be " the people of the United States/' and that the great instrument itself should always and everywhere be held and taken as " ordained and established" by that one people, and that the Constitution and laws made pur- suant thereto should be " the supreme law of the land ; " so that there should be one people and one land. The states by their ratifications consented to all this. Hence the Constitution is the result of agreement between the states, precisely as a deed is the result of an agreement between a ven- dor and a purchaser. Our national Constitu- tion is the executed and completed charter, deed, grant, conveyance, by which the states ceded to, and forever vested in, the nation A CONSTITUTIONAL NATION 23 the national powers enumerated therein. Each state was a grantor in this deed, or charter, and the nation, the people of the United States, was the sole grantee. All the rights and powers granted by this instru- ment passed forever from each grantor to that grantee. Its terms were absolute and unconditional. The grants were for the peo- ple of the United States and their posterity. Jefferson's resolution charged the great and wise members of the Constitutional Convention with gross carelessness, neglect, and folly by its assertion that " no common judge " was provided for, and that in 1798 there were sixteen separate judges, each en- titled to decide finally and absolutely as to the vaHdity or invahdity of any act of Con- gress. If that assertion had been true, then indeed would the Constitution be a cipher. Either Delaware or Ehode Island could re- solve that the national excise or tariff law was invalid, and prevent the collection of tax or duty within its limits. As the Constitution expressly provided that such levies must be uniform throughout the country, if collec- tion could not be made in Rhode Island, it could not be made anvwhere. Common 24 WASHINGTON VERSUS JEFFERSON sense will tell the absurdity of attempting / to govern a country with sixteen or more independent supreme courts. Chaos only could result from their conflicting decisions. The same result must needs follow whether said final decisions were made by courts^ state legislatures, or state conventions. It is impossible to believe that Washing- ton, Franklin, or Koger Sherman set his hand to a constitution like the one painted by Jefferson in the last half of his first Kentucky resolution. It is not strange that Jefferson required from Nicholas a pledge " to never make known the author." Even Jefferson's self-assurance could not induce him to meet Washington while known as the promulgator of such a charge upon the members of that convention and their work. Jefferson's words were, " having no com- mon judge." In the convention a Virginia delegate moved the following : " A national judiciary ought to be established . . . with jurisdiction to hear and determine . . . cases in which foreigners and citizens, a citi- zen of one state and a citizen of another state, may be interested ; cases which respect the collection of the national revenue ; im- A CONSTITUTIONAL NATION 25 peacliments of national officers ; and ques- tions loJiich may involve the national id eace and harmony.''^ Thus Virginia herself pro- posed to make the national judiciary " the common judge." The convention decided to adopt Virginia's proposal, and made sec- tion 2 of article III. read thus : " The judi- cial power shall extend to all cases in law and equity, arising under this Constitution, the laws of the United States, and treaties made, or which shall be made, under their authority ; to all cases affecting ambassad(^*s, other public ministers, and consuls ; to all cases of admiralty and maritime jurisdiction ; to controversies to which the United States shall be a party ; to controversies between two or more states ; between a state and citizens of another state ; between citizens of different states ; between citizens of the same state claiming lands under grants of different states ; and between a state, or the citizens thereof, and foreign states, citi- zens or subjects." Every claim by the United States to col- lect a tax, duty, or excise, to enforce any of its laws or treaties, to prevent the en- forcement of any invalid state law, is neces- 26 WASHINGTON VERSUS JEFFERSON sarily, if resisted or disputed, " a contro- versy to which the United States is a party." Of such controversies the national judiciary was given full jurisdiction, was made the " common judge." Yet, in the face of these plain, express words, words adopted by the convention after Virginia had asked it to make the national judiciary the arbiter, the final judge of " questions which may in- volve the national peace and harmony," Jef- ferson made use of Nicholas and the Ken- tucky legislature of 1798 to promulgate the mistaken statement that there was no com- mon judge. Moreover the convention was famihar with the Articles of Confederation. Their com- missions made it their duty to study those articles. Read articles II., IX., and XIII. The Constitution omitted the express reser- vation of state sovereignty made by article II., and provided no substitutes for parts of IX. and XIII. except the judiciary article. The omission of that express reservation and the terms of the judiciary article give strong support to Washington's construction, and equally strong evidence against that of Jefferson. A CONSTITUTIONAL NATION 27 In 1793 the Eleventh Amendment took from said courts jurisdiction of "any suit at law or equity, commenced or prosecuted against one of the United States by citizens of another state, or by citizens or subjects of any Foreign State." This, however, left unimpaired full jurisdiction of " Controver- sies to which the United States shall be a party," and " Controversies between two or more states." While the ratifications of the Constitution were pending before the state conventidfcis, "The FederaHst," see No. LXXX., page ^^S, expressly called attention to this judi- cial article, and argued, " Controversies be- tween the nation and its members or citi- zens can only be properly referred to the national tribunals. Any other plan would be contrary to reason, to precedent, and to custom." The state conventions ratified the Con- stitution with the judicial article clear and plain in its meaning, and with full know- ledge that it made the national court the common judge, the preserver of the peace. The words " jurisdiction of controversies to which the United States shall be a party, 28 WASHINGTON VERSUS JEFFERSON controversies between two or more states/' granted jurisdiction of all such controver- sies. Sucli is tlie established rule of con- struction. Such words, unaccompanied by any words of exception, proviso, condition, or negation, have precisely the same mean- ing as if the word " all " had preceded the word " controversies " in each clause. The Supreme Court of the United States so de- cided in Rhode Island v. Massachusetts, 12 Peters' Reports, pages 657, 721, at January Term, 1838. A Virginia delegate, thinking of the " Federal plan," had suggested that in case any state should be delinquent, the force of the whole nation ought to be exerted against her. Madison said, " To use force against a state is more like a declaration of war than an infliction of punishment, and would be considered by the party attacked a dissolution of all previous contracts. / therefore ho]3e that a iiational system, with full power to deal with individuals, loill he framed, and the resource he thus ren- dered unnecessary J^ Madison's hope was realized; a national system was adopted and established, with A CONSTITUTIONAL NATION 29 full power to compel the obedience of evert/ inhabitant, with no obligation to await the consent or act of any state. If, on the other hand, the Constitution had established a confederate government, the provision urged by the unnamed Virginian for com- pelHng each state to furnish its quotas of money and men would have been necessary. In this national government the Consti- tution vested the following sovereign pow- ers : — (1) To raise money by tax, duty, excise, loan, to provide for the common defense and general welfare of the United States ; (2) To coin money and regulate its value ; (3) To declare and wage war ; (4) To raise, support, and govern armies ; (5) To organ- ize, arm, and discipline the militia ; to call it out to execute the laws of the Union, suppress insurrections, and repel invasions ; (6) To provide, maintain, and govern a navy; (7) To regulate commerce with for- eign nations, among the several states, and with the Indian tribes; (8) To regulate nat- uralization and bankruptcies ; (9) To grant patents and copyrights ; (10) To fix the standard of weights and measures ; (11) To 30 WASHINGTON VERSUS JEFFERSON establish post offices and post roads; (12) To punish counterfeiting, piracies, felonies on high seas, and offenses against interna- tional law ; (13) To legislate for the capi- tal district not exceeding ten square miles ; (14) To make regulations as to the territory and other property of the Union ; (15) To make all laws which shall be necessary and proper for carrying into execution the fore- going powers and all other powers vested by this Constitution in the government of the United States, or in any department or officer thereof ; (16) To propose, by a vote of two thirds of each house of Congress, to amend any provision of the Constitution except the one giving to each state an equal representation in the Senate; such amend- ments to become parcel of the Constitution when ratified by the legislatures of three fourths of the states. All of the foregoing powers were vested by the Constitution in the nation absolutely, without limitation as to time, and were and are to be exercised by " the people of the United States and their posterity." By the terms of the Constitution, the people of the United States were to make known their A CONSTITUTIONAL NATION 31 will through theh^ legislative body, the Con- gress, in legislation, and through two thirds of each house, and three fourths of the state legislatures in amending the Constitu- tion, while to the judicial power of the nation was given full jurisdiction to decide all questions arising " under this Constitu- tion, the laws of the United States, and treaties made, or which shall be made under their authority," including expressly " Con- troversies to which the United States shall be a party," and " Controversies between two or more states," and finally " this Con- stitution 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 he the siq^reone law of the land; and the judges in every state shall be bound thereby, anything in the Consti- tution or laws of any state to the contrary notioithstanding .^^ While the Constitution thus created a powerful nation, it prohibited each state from doing certain acts and from exercis- ing certain powers. Section 10 of article X. provides thus : — 32 WASHINGTON VERSUS JEFFERSON No state shall enter into any treaty, alli- ance, or confederation ; shall grant letters of marque or reprisal ; shall coin money ; shall emit bills of credit ; shall make any- thing but gold and silver coin a tender in payment of debts ; shall pass any bill of attainder or ex post facto law ; shall pass any law impairing the obligation of con- tracts ; shall grant any title of nobiHty ; shall without the consent of the Congress lay any imposts or duties on imports or exports, except what may be absolutely ne- cessary for executing its inspection laws ; and the net produce of all duties and im- posts laid by any state on imports or ex- ports shall be for the use of the Treasury of the United States ; and all such laws shall be subject to the revision and control of the Congress ; and no state shall without the consent of Congress lay any duty of tonnage, keep troops or ships of war in time of peace, enter into any agreement or com- pact with another state or a foreign power, or engage in war unless actually invaded, or in such imminent dangler as will not admit of delay. Whatever doubt may exist as to whether A CONSTITUTIONAL NATION 33 or not each state was sovereign prior to the estabhshment of the Constitution, there can- not be any reasonable doubt that from and after the estabhshment of the Constitution each of the states ceased to be a sovereign state, because it had granted and ceded its sovereign powers to "the people of the United States/' to the new nation. Secession writers claim that the words in article YII. reading, " The ratification of the conventions of nine states shall be suffi- cient for the establishment of this Consti- tution between the states so ratifying the same," made it a confederation. Those words did not alter any part of the frame- work of the government ; they left it na- tional, deaHng wdth individual citizens, not with states ; ordained by one people ; made the supreme law for one land, without limi- tation in time, and subject to no condition. Secession writers also urge that the equal representation of the states in the Senate makes the government confederate. Vice- President Stephens of the Confederacy (1861-65) was fond of styling senators "ambassadors," and the Senate the "House of Ambassadors." The important element 34 WASHINGTON VERSUS JEFFERSON is not " the equal number." In congresses of sovereigrn states each one sends one or more ambassadors as it may choose, and changes them at pleasure. The important elements are the manner of voting, the effect of votes, and the power of the state over its so-called ambassador. In the confederacy (1777-89) each state appointed such delegates, in such numbers as it pleased, and could recall any or all of them at pleasure. When voting, the count was made by states, and not by voices. Under the Constitution since 1789 each senator holds for the full term for which he has been elected. The state cannot re- call or remove him. He may vote or not vote as he pleases. His vote counts one in full effect and power, whether he casts it for or against the wishes of his state. There are now 45 states. All the senators from 22 states may be absent or not voting ; the 46 senators from the other 23 states, under section 5, article I. form a quorum, and are competent to do business. Any law voted for by the senators from 12 states would be as valid as if the whole Senate had voted for it, because 21 is a majority of 46, a major- A CONSTITUTIONAL NATION 35 ity of a quorum. Moreover, in such a case, the senators from 16 states could ratify a treaty, override a veto, or submit to the states an amendment of the Constitution. Is it not plain that the Senate is not a con- federate body ; that no senator is an ambas- sador from his state ; that each senator is simply a member of a national legislative body? In the confederacy of 1777-89 each state retained complete control of its re- presentatives in the Congress. Under the Constitution no state has any control o^r its senators and representatives. Nothing but death, resignation, or a vote of Senate or House can vacate any seat. This fact demonstrates how radical a chano-e the con- vention of 1787 made in the nature of our government. The Tenth Amendment is also much quoted by statesmen of the secession school. It reads : " The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people." That amendment did not and could not restore to any state any of the powers al- ready ceded to the nation. Instead of each 36 WASHINGTON VERSUS JEFFERSON state remaining a sovereign, it was and is a subject state, subject to the nation in all the powers transferred to it, and in all the prohibitions imposed upon every state. The same instrument had made every citizen of every state a citizen of the nation. The Constitution made the nation's laws para- mount to those of the state. Each citizen was and is bound to obey the nation's con- stitutional laws even where they conflict with the statutes of his state, and the na- tion's courts are expressly empowered to finally decide as to the constitutionality of every statute, whether of state or nation. As Madison hojjed would be done, the na- tion's government was given " full power to deal directly with individuals." No state of&cer can rightfully interfere between a constitutional United States law and its vio- lator. All who so interfere will share the crime and the liability to punishment. No so-ealled state law can in such a case pro- tect the offenders. The only safe resort would be to the national court clothed by the Constitution with jurisdiction to deter- mine such a question. Under Washington's construction the A CONSTITUTIONAL NATION 37 Constitution was a complete and symmet- rical system of government. It stated in clear, plain, well-chosen words what powers were thenceforward to belong to the nation, what powers no state should exercise, what acts no state should do. In unmistakable words it made the national Constitution and laws paramount to the constitutions and laws of every state, and provided for the judicial determination of every question that could possibly arise by a bench of independ- ent judges holding office for life or duiing their good behavior, selected by the people's chosen president and confirmed by senators representing all the states, — judges who coidd not win such selection and confirma- tion without years of testimony to their abiHty, legal information, and integrity ; judges who could not render a corrupt de- cision without forfeiting a reputation more valuable than life, and without liability to impeachment before the national Senate. No safer, no sounder tribunal has yet been created by man. On the other hand, under Jefferson's theory of the Constitution, a majority of one vote, no matter how ignorant, unwise, 38 WASHINGTON VERSUS JEFFERSON or prejudiced that voter might be, in a state convention could deny to the nation any one or more of the powers claimed by it under the Constitution. By such a vote Massachusetts could negative a law appro- priating money to enable commerce to freely ascend the Mississippi ; South Carolina a tariff law ; Virginia a law forbidding sla- very in a northwest territory ; Florida a law to create a nursery for manning our navy by granting fishing bounties; Georgia a law for constructing a passage for the im- mense commerce of the lakes through the outlet of Lake Superior. Under Jefferson's theory secession was unnecessary. If the Constitution is only a league or treaty be- tween sovereign states, each one having full right to finally decide that a law of Con- gress is not authorized by the Constitution, the state cannot lose its rights as a member of the league by refusing to obey an invalid law. Under Jefferson's teaching, Calhoun and South Carolina had full right to nul- lify any law of Congress that a South Caror lina convention by a majority of one or more votes had declared to be unconstitu- tional, and to still claim to be one of the United States. A CONSTITUTIONAL NATION 39 Washington and Henry died in 1799. Madison, never strong enough to stand alone, had, under the influence of Wash- ington and Hamilton, done great service in framino^ and estabhshins: the Constitution. By 1798 parties had changed. Jefferson had taken the lead in Virginia ; Madison felt too weak and timid to oppose him. Unwilling to adopt the precise words of the Kentucky resolution, he somewhat changed its language before offering it for adoption in the Virginia legislature. When, %m 1832, he learned how Calhoun and South Carolina were practicing what Jefferson had taught, his utterances made known that he did not so understand the doctrine. In the fullness of time Washington's vindication came, but Virginia and the south land suf- fered terribly because they had spurned his teaching. Patrick Henry had opposed the ratifica- tion of the Constitution because he did not favor the establishment of so national a government, but after it had been estab- lished, after Virginia had ratified it, he in- sisted that it should be obeyed. When civil war came, in 1861, another 40 WASHINGTON VERSUS JEFFERSON great Yirginian, George H. Thomas, fol- lowed the example of Patrick Henry, and used all his powers to maintain the suprem- acy of the national laws. As an of&cer in the division commanded by him in 1861-62, in Kentucky, Tennessee, and Mississippi, I learned to honor and admire him. In January, 1861, another great Virgin- ian, Robert E. Lee, wrote to bis son thus : \y " Secession is nothing but revolution. The ^ framers of our Constitution never exhausted so much labor, wisdom, and forbearance in its formation, and surrounded it with so many guards and securities, if it was in- tended to be broken by every member of the confederacy at will. It is intended for ' perpetual union,' so expressed in the pre- amble, and for the establishment of a gov- ernment and not a eom'paet ; which can only be broken by revolution, or the con- sent of all the people in convention assem- bled. It is idle to talk of secession." — See General A. L. Lono-'s " Memoirs of R. E. Lee," page 88. When he wrote that letter, Robert E. Lee believed as Washington and Henry had done. In April, 1861, he be- came a follower of Jefferson and of Calhoun, A CONSTITUTIONAL NATION 41 and fought to maintain " secession." Did he change his opinion, or, war having be- gun at Sumter, was he unwilHng to fight the South ? I will close this branch of our subject with quotations from adjudications made by the arbiter chosen on Virginia's motion, as I have stated, speaking by the voice or with the concurrence of another great Virginian, John Marshall, who was chief justice of the United States from 1801 to 1835. " The Constitution of the United St^es was ordained and established, 7iot hy the states in their sovereign capacities^ but (as the preamble of the Constitution declares) by the people of the United States " (Mar- tin V, Hunter, 1 Wheaton, 304, a. d. 1816). " The Constitution of the United States is to be regarded as emanating, not from the states as governments, but directly from the people. The convention which framed the Constitution was indeed elected by the state legislatures, but the instrument, when it came from the hands of the convention, was a mere proposal, without obligation or pretensions to it. It was then submitted to 42 WASHINGTON VERSUS JEFFERSON the people. They acted upon it in the only- manner in which they can act effectively and wisely on such a subject, by assembling in conventions. These conventions neces- sarily assembled in their respective states, but their action did not, on that account, cease to be the action of the people them- selves or become the action of the state governments " (McCulloch v. Maryland, 4 Wheaton, 316, 403, a. d. 1819). '' Notwithstanding the people had pre- viously created state governments, they had the power to organize a distinct and inde- pendent government over the whole Union" (Ibid.). The whole court concurred : Mar- shall, C. J., Washington, Johnson, Living- ston, Todd, Duvall, and Story, justices. " It is true that, anterior to the formation of the government of the United States, the separate states were sovereign, independent, and connected only by a league ; but when they converted their league into a govern- ment, when they converted their congress of ambassadors into a legislature, the whole character in which the states ai^i^ear un- derwent a change " (Gibbons v. Ogden, 9 Wheaton, 187, a. d. 1824). The whole A CONSTITUTIONAL NATION 43 court, including the judges above named, and also Thompson, a newly appointed jus- tice, concurred. The judgment in the "trial by battle," A. D. 1861-65, affirmed these rulings of the Supreme Court of 1801-25. In the time between 1865 and 1898, that court has in numerous cases restated to the world, as now undisputed, the same national doctrine that Washington and Henry made the sub- ject of their last instructions to their coun- trymen. % Ill CONGRESS AND THE TERRITORY It will be germane to our subject to trace, down to A. D. 1860, the history of the mat- ters then presented by the seceding states as the causes of their attempts to secede. Of these, slavery was the most prominent. As the nation never claimed any right to interfere with slavery in any state until after the Thirteenth Amendment to the Constitution had become a part of that in- strument, on December 18, 1865, save only under the laws of war during the Rebellion, the matter in dispute as to slavery included only the extent of the nation's power and right to legislate on that subject for any or all territories of the United States, prior to their admission to statehood. Section 3 of article IV. contained the following words : " New states may be ad- mitted by the Congress into this Union." " The Congress shall have power to dispose CONGRESS AND THE TERRITORY 45 of and to make all needful rules and regula- tions respecting the territory or other pro- perty belonging to the United States." After France had ceded Louisiana, Con- gress organized what is now the State of Louisiana as the Territory of Orleans. Be- cause the great majority of the inhabitants were of foreign races unaccustomed to self- government, the Act of Congress vested the selection of the first territorial legislature in the President and Senate of the United States. A question having been raised^ as to the validity of this act, the Supreme Court of the United States held that under the above quoted section 3, the act was valid : that Congress might, if it should so choose, itself act as the legislature of the territory. In March, 1857, the case of Dred Scott V. Sandford, 19 Howard Supreme Court Re- ports, 399, etc., was decided by a divided court. By a vote of seven to two, the court held that Dred Scott was not a citizen of the United States ; that therefore he had no right to begin that suit in a United States court ; and that the court had no jurisdic- 46 WASHINGTON VERSUS JEFFERSON tion of tlie case. So holding, by well- settled rules of law, as to which all courts, both state and national, agree, the court had no power to pronounce any judgment upon any other question in that case. Every- thing said by any of the seven judges as to any matter, except the one that related to the court's jurisdiction of that case, was only the statement of the professional opin- ion of each of them as a lawyer, was not entitled to obedience as a judgment, but to have the respect due to the individual repu- tation of the judge as a lawyer. Justices McLean of Ohio, Catron of Ten- nessee, and Curtis of Massachusetts held that said section 3 gave to Congress full power to legislate for the territory as to all matters not prohibited by the Constitution or treaties in force. McLean and Curtis held that Congress had full power to pro- hibit slavery in the territory. Catron held that the terms of the treaty with France denied this power to Congress as to the ceded land. He arofued that each slave- holder, resident in Louisiana at the time of the treaty, and his heirs and assigns, had a right to reside with his slaves in any part of CONGRESS AND THE TERRITORY 47 it until such part became a state, and the state prohibited slavery. He forgot that no resident under France could open a new settlement unless at a time, place, and under terms to be fixed by France ; that we suc- ceeded to France's place, and held the like rio^ht to determine such matters. So the treaty merely protected slaveholders' rights in the then settled districts ; that is, in the land now within Louisiana, JMissouri, and Arkansas ; and Congress had full control as to all the rest of the ceded land. % Justice Nelson of New York expressed no opinion upon the said power of Congress, or as to the construction of said section 3. He held that Dred Scott's voluntary return to JMissouri with his master made him, under Missouri law, a slave, and that the Act of March 6, 1820, the Missouri Com- promise, did not apply to him, and was not involved in the case. The other five justices concurred in hold- ing that said section 3 appKed only to terri- tory that belonged to the United States at the time of the establishment of the Consti- tution ; that Congress could not make rules and regulations as to territory subsequently acquired. 48 WASHINGTON VERSUS JEFFERSON This strange construction, thus announced as mere " obiter dicta " by Chief Justice Taney and Justices Wayne, Daniel, Grier, and Campbell, in effect charged upon the great men of the convention of 1787 such lack of even ordinary foresight that, while framing a government with power to make treaties, of which extension of boundary is a very usual subject, they gave it no power over any land that might be acquired by any treaty. Judge Catron's opinion shows that he had such confidence in the application of section 3 to the Louisiana purchase, that he had sentenced men to be hanged under laws whose validity depended upon it. At October term, 1879, the power to legislate for a territory came again before the national Supreme Court, which unani- mously held as follows (see Waite, C. J., in Bank v. County of Yankton, 101 U. S. Supreme Court Reports, 132, 133) : — " It is certainly now too late to doubt the power of Congress to govern the terri- tories. There have been some differences of opinion as to the particular clause of the Constitution from which the power is de- CONGRESS AND THE TERRITORY 49 rived, but that it exists has always been conceded. The Act to adapt the ordinance to provide for the government of the terri- torv northwest of the river Ohio to the re- qubements of the Constitution (1 Stat. 50) is chapter 8 of the first session of the first Congress ; and the ordinance itself was in force under the Confederation when the Con- stitution went into effect. All territory within the jurisdiction of the United States not included in any state must necessarily be governed by or under the authorityvof Congress. The territories are but political subdivisions of the outlying dominion of the United States. Their relation to the general government is much the same as that which counties bear to the respective states, and Congress may legislate for them as a state does for its municipal organiza- tions." The " obiter dicta " of Chief Justice Taney and his four associates were based upon Jefferson's doctrine of 1798, and in opposi- tion to that of Washington. They treated the United States as a mere trustee holding title to land for the use of the states resjoec- tively, instead of as a government holding 50 WASHINGTON VERSUS JEFFERSON for its people ; a nation iiolding title in fee- simple ; holding the power, and ST:jbject to the duty of enacting such legislation touch- ing the same as would not contravene any of the limitations of the Constitution^ and would result in promoting the prosperity and happiness of the people as a whole com- munity. The members of the Constitutional Con- vention of 1787 almost unanimously thought slavery a serious and perilous evil. The Congress of the Confederation, in that same year, published to the world its opinion by placing in the ordinance of 1787 for the government of the territory northwest of the river Ohio the words "there shall be neither slavery nor involuntary servitude in the said territory otherwise than in the pun- ishment of crimes, whereof the party shall have been duly convicted." In the convention, in August, 1787, George Mason, of Virginia, said : " Slavery discourages arts and manufactures. The poor despise labor when performed by slaves. They prevent the emigration of whites who really enrich and strengthen a country. They produce the most pernicious CONGRESS AND THE TERRITORY 51 effect on manners. Every master of slaves is born a petty tyrant. They bring the judgment of Heaven on a country. I hold it essential in every point of view that the general government shall have power to prevent the increase of slavery." The convention felt sure that slavery would be eventually eradicated, and were unwilling to admit the word itself into the great instrument which they intended should remain for unnumbered generations a memo- rial of their statesmanship. They gugnted in broad, definite terms full power of legis- lation as to the national territory, power to make " all needful rules and regulations respecting the territory." In addition to power to forbid slavery in any other terri- tory as fully as had been done that same year for all northwest of the Ohio River, they gave to Congress full right to prohibit "the migration or importation of such per- sons as any of the states now existing shall think proper to admit " at any time after the year 1807, coupled with permission to levy a tax or duty of ten dollars per head prior to 1808. This was intended to stop the introduction of slaves from Africa or any place outside of the United States. 52 WASHINGTON VERSUS JEFFERSON If our constitutional fathers had shared the opinions of the secessionists of 1860^ or of the disciples of John C. Calhoun or Jef- ferson Davis, that the United States was a trustee under obligation to secure for sla- very equal chances with freedom in populat- ing our territories, they would have never placed section 9 in article I. of the Consti- tution. Mr. Alexander H. Stephens, in his "War between the States," remarks that in order to enable the South to compete with the North in settling the territories, the prohibi- tion of the slave trade with Africa should have been suspended, at least for a time. It is plain that without free access to that field for " slave emigration," while the wide world was open for " free emigration," the former could not expect to win. It is equally plain that the makers of the Consti- tution did not intend to aid slavery in the race, and had no thought of making Con- gress a trustee for slaveholders. They did intend to leave that institution undisturbed in the states within which it then existed, and they made provision that the mere es- cape " of any person held to service and CONGRESS AND THE TERRITORY 53 labor in one state under the laws thereof, into another, shall not, in consequence of any law or regulation therein, be discharged from such service or labor, but shall be delivered up on claim of the party to whom such service or labor is due." This clause gave a right to recover a slave who escaped from a slave state to a free state. By necessary imphcation it left the law of the free state to apply in full force to every person whose case did not fall within the language of the "fugitive slave clause." Therefore no master could take his slave into a free state or territory without subject- ing him to the law of that free state or territory, without making him free. There- fore under the Constitution, property in a slave did not occupy the same position as property in a horse or a cow. Whenever the owner of either of the latter chose to travel with his animal, he carried with him a complete title to it and to its services. But his title to his slave was local in its nature, limited by the jurisdiction of the slave law. There is no word in the Consti- tution that imposed upon Congress or upon the nation the duty of establishing or legal- 54 WASHINGTON VERSUS JEFFERSON izing slavery anywhere. The only duty in aid of slavery that was in any manner recog- nized by the Constitution was that of en- forcing the " fugitive slave clause ; " to wit, suitable leg^islation to enable the claimant to prove his title and obtain the delivery. But no part of said legislation in any manner could tend to establish slavery in any new spot. North Carolina understood that section 3 of article IV. vested in Congress power to make regulations as to slavery in national territory. When in 1790 she ceded to the United States what is now Tennessee, she placed in her deed the words, "Provided that no regulation made or to be made by Congress shall tend to emancipate slaves." She used the precise word that is prominent in said section 3, and evidently had that section in mind. In 1802, when Georgia ceded what is now Alabama and Mississippi, she provided in her deed "that the ordinance of 1787 should in all its parts extend to the territory ceded, that article only excepted which for- bids slavery." Thus within the first twelve years of the CONGRESS AND THE TERRITORY 55 Constitution, Congress, without objection or controversy, did prohibit slavery from enter- ing upon 277,000 square miles of the na- tional territory, and two of the prominent slave states plainly evidenced their belief that such power belonged to Congress, and might be exercised as to Tennessee, Alabama, and Mississippi unless they should so word their deeds that the title to the land could only pass to the nation subject to the exist- ing: slave laws then in force in it. It has generally been supposed thalk the nation at that early period adopted as its policy a di^dsion of its territory between slavery and freedom. In fact, however, the nation prohibited slavery from every foot of ground then available for freedom. Be- fore their deeds of cession. North Carolina embraced Tennessee, and Georgia included Alabama and Mississippi. It is not material to notice the small strip claimed by South Carohna. They would not cede unless the slave law should continue unrepealed. Hence the nation did not admit slavery to any territory then or thereafter owned by it east of the Mississippi. Its policy was that of the Constitutional Convention, to 66 WASHINGTON VERSUS JEFFERSON use what power it had to prevent the exten- sion of slavery. As soon as the year 1808 arrived, Congress made criminal the foreign slave trade; and so far as legislation could deprive slavery of any increase from abroad, it gave ejffect to the convention's purpose. Meanwhile the treaty with France had added to the national domain about ljl^,000 square miles. The only settlements were in what are now Louisiana, Arkansas, and Missouri. Slavery had been introduced by Spain and continued by France. Under the treaty the title of masters to slaves was protected, and any prohibition of slavery within the reasonable limits of those settle- ments would have been regarded as violating the spirit of the treaty. But we succeeded to the power of France over all outside of those limits. As France could, while she had dominion, determine when and under what rules new settlements might be estab- lished, so we could do the like as her suc- cessor in the title. Until March, 1820, Con- gress had made no attempt to exercise this power. In 1812 it admitted Louisiana, its slave laws having continued in force. The same laws continued in force in the territory CONGRESS AND THE TERRITORY 57 organized as Missouri, and in that set apart on March 2, 1819, as Arkansas. In 1819 Missouri asked to become a state. Party lines had disappeared. Monroe had no op- position when a candidate for reelection to the presidency. Every electoral vote but one was cast for him. A bill to authorize JMissouri to form a state constitution havino; been introduced in 1819, the House of Eepresentatives, by a vote of 97 to 5Q, so amended it as to prohibit slavery, except as a punishment for crime. The Senat% dis- agreed, and the matter went over to the next Congress. On March 6, 1820, the bill then pending was so amended as to provide "that in all territory ceded by France to the United States under the name of Louisiana, which lies north of thnty-six degrees, thirty minutes north latitude, excepting only such part as is included \\ithin the limits of the state contemplated by this Act, slavery and involuntary servitude, otherwise than for the punishment of crime whereof the party shall have been convicted, shall be and is forever prohibited." President Monroe was a Yiroinian. His cabinet consisted of John Q. Adams, of 58 WASHINGTON VERSUS JEFFERSON Massachusetts, Secretary of State; William Wirt, of Virginia, Attorney-General; John C. Calhoun, of South Carolina, Secretary of War ; and George W. Crawford, of Geor- gia, Secretary of the Treasury. Mr. Adams in his memoirs states that President Monroe asked each of them to give in writing his opinion upon the power of Congress to prohibit slavery in the territory. In con- versation, all four agreed that it could, but Calhoun, Crawford, and Wirt held that the prohibition would be valid only during the territorial condition, while Adams claimed that it would bind the state also. Because of this difference, Calhoun suggested that the President should word the question, " Is the eighth section of the Missouri bill con- sistent with the Constitution?" The Presi- dent did so word it, and each 'of the four in writing answered " Yes." Thereupon, President Monroe approved the bill. Here again the impression has been com- mon that Congress acted upon a fixed policy to equally divide the national domain be- tween freedom and slavery. In fact, how- ever, the nation, in obedience to the spirit of the treaty of 1803, allowed the old slave CONGRESS AND THE TERRITORY 59 law to continue in those portions of the ceded land which came to us with a popu- lation holding slaves under an old slave code, and with rights of settlement within those districts protected by said treaty. Said protected districts included about 225,000 square miles, of which 118,000 were in the States of Louisiana and Missouri. Outside of those states was about 107,000 square miles south of 36° 30' that had been organized, on March 2, 1819, as the territory of Arkansas, with the old slave laws ilnre- pealed. By the Act of March 6, 1820, Congress closed to slavery about 919,000 square miles, being, in fact, every square mile then plainly free from those rights in relation to slavery which had been placed by the treaty with France beyond our control. Congressman Kinsey, of New Jersey, at the time called attention to the fact that nine tenths of the territory had been preserved for free labor. Another erroneous impression has been very common, and has caused much conflict and evil ; to wit, that the Hne of 36° 30' was chosen as a suitable climatic Kmit for sla- very on the north, and therefore to be used 60 WASHINGTON VERSUS JEFFERSON across the continent for that purpose. No hint of that kind was given in 1820. The north lines of Delaware and Maryland ran close to the parallel of 40° ; Kentucky ex- tended above 39°, while Virginia and Mis- souri crossed or approached 40° 30^ This line of prohibition began at the southwest corner of Missouri, and ran west across what are now Indian Territory and Okla- homa, keeping thirty miles south of Kansas, and ended at the 100th degree of west longi- tude, then the east line of Mexico, now the northeast corner of Texas. It so happened that a line drawn due west from the south- west corner of Missouri to the Mexican line would leave on its south side enough land to make good our treaty obligations to the inhabitants transferred to us by France. In simple, plain English, the celebrated " Mis- souri Compromise of 1820" devoted to freedom and free labor every foot of the immense country sold to us by France that our contract with France allowed us to so dispose of. If that statute established any principle it was " that it is the nation's duty to protect from the evils of slavery all na- tional territory not already incumbered by controlling title." CONGRESS AND THE TERRITORY 61 In 1822 the ratification of the treaty that had been agreed upon in 1819 with Spain brought under our control Florida, subject to her then existing slave laws and rights. On March 1, 1845, a joint resolution for the annexation of Texas was passed by Con- gress, embodying terms agreed upon by and between John C. Calhoun, of South Caro- lina, Secretary of State, and the Minister of the Republic of Texas. In this, for the first time, appeared the idea of a permanent sort of isothermal line to mark the norl^ern limit of slavery. A stipulation introduced by Mr. Calhoun gave consent to a future division of Texas into not exceeding four states, slavery to be excluded north of 36° 30' north latitude. Here the United States gave no consent to the extension of slavery into territory from which it was theretofore excluded. If Texas owned the land, her slave law was in force therein. We accepted her as one of our states with that law. The treaty with Mexico in February, 1848, added about 650,000 square miles to our country. Congress discussed the slavery question in connection with this new land 62 WASHINGTON VERSUS JEFFERSON until September 9, 1850. The South claimed that the line of 1820 had been selected as a dividing line between North and South, and insisted that it should be extended to the Pacific, and made the southern line of the new State of California. President Zachary Taylor, born a Virginian, resident in Louisiana, himself an owner of many slaves, used his influence through Mr. T. Butler King, of Georgia, to induce the people on the newly ceded Pacific coast to include the whole of what is now our California in one state. The North replied to the South that the line of 36° 30' had been intended only, for the purpose I have hereinbefore stated : that when legislating for the territories. Congress was merely act- ing as the legislature of the nation as a whole, looking to the best interests of the people as a whole; and that as the social and political evils incident to slavery had caused the civilization of our age to con- demn and abolish it, no conscientious legis- lator could justify himself in voting to bring those evils upon many millions who would never own slaves, in order to further the special interest of a very small number of our population who were slaveholders. CONGRESS AND THE TERRITORY 63 This Northern view was forcibly and temperately stated by Allen G. Thurman, a native of Lynchburg, Virginia, who, on the 15th of January, 18J:7, was a representative of the Chillicothe district (Ohio) in Congress, and voted in favor of applying the Wilmot Proviso to all territory that we might gain from Mexico, and so prohibit the introduc- tion of slavery therein. He said : — " Why, then, does the North insist upon opposing the extension of slave territory? I answer : Because, first, as the mun^pipal legislature of the territories, it is the duty of Congress to promote their interests. The people of the free states think, whether erroneously or not, that it is for the interest of any country that slavery be prohibited; and thinking so, we, as the legislative power over the territories, deem it our duty, when it can be done without too great a sacrifice, to exclude slavery from them. " Another reason : That Cono^ress is the national legislature, and therefore must look to the national interest; and as the strength and prosperity of the nation is composed of the strength and prosperity of its parts, it is the duty of Congress, no insuperable ob- 64 WASHINGTON VERSUS JEFFERSON stacle standing in the way, to pursue such a course of policy as shall strengthen in the greatest degree the United States ; and be- lieving that free territory would be more populous, wealthy, abundant in resources, and in everything that makes great a nation, it is for the national interest to have as much free territory as possible, compatible with the existence of the Union. " The third reason is, that in the opinion of the North it is inconsistent with the genius of our institutions and injurious to the character of the United States to extend slavery. Where it exists, let it exist, says the North, but do not extend it by the action of the general government, and con- vert what is now free into slave territory." Allen G. Thurman was elected a Supreme Judge of Ohio, as a Democrat, in 1851; was a Democratic United States Senator from Ohio from March 4, 1869, to March 4, 1881 ; and was the Democratic candidate for Vice-President of the United States in 1888, receiving the electoral votes of Dela- ware, Maryland, Virginia, North Carolina, South CaroHna, Georgia, Florida, Alabama, Mississippi, Louisiana, Texas, Arkansas, CONGRESS AND THE TERRITORY Qb Tennessee, Kentucky, and Missouri, as well as of several Northern states. As man, as lawyer, as judge, as statesman, few men of any party or of any state are held in more loving memory or in higher repute. He clearly, strongly, and fairly stated the Northern position. The North could not vote to extend slavery into free territory, because to do so would be wrong. All land ceded by Mexico would be free territory, because she had abolished slavery. By 1850 the Southland had becom^ ex- cited ; its people had been taught to believe that a refusal to allow slavery to exist in the newly acquired regions would be a gross wrong to them. The country was in fact in peril. If Congress had then applied the Wilmot proviso to the Mexican cession, it is very probable that successful secession would have followed. Neither the people nor President Fillmore was then prepared to meet and defeat such an attempt. Daniel Webster saw and understood the danger. He also saw what seemed to him sound rea- son for believing that it would be imprac- ticable to establish slavery in either New Mexico or Utah ; and that a mere omission 66 WASHINGTON VERSUS JEFFERSON to then enact a prohibition of slavery would not result in any extension of that institu- tion. He therefore deemed it wise to allay the excitement that threatened to dissolve our Union, by securing the passage of the Henry Clay compromise. I will quote briefly from Webster's " Seventh of March Speech/' March, 1850. "Now as to Utah and New Mexico, I hold slavery to be excluded from those terri- tories by a law even superior to that which admits and sanctions it in Texas. I mean the law of nature, of physical geography ; the law of the formation of the earth. What I mean to say is that it is impossible that African slavery, as we see it among us, should find its way or be introduced into Utah and New Mexico, as any other natural impossibility. What is there in New Mex- ico that could by any possibility induce anybody to go there with slaves? There are some narrow strips of tillable land on the borders of the rivers, but the rivers themselves dry up before midsummer is gone. All that the people can do is to raise some little articles, some little wheat for their tortillas, and that by irrigation. I CONGRESS AND THE TERRITORY 67 look upon it, therefore, as a fixed fact (to use the current expression of the day), that both Utah and New Mexico are destined to be free." Webster's aid to Clay gave success to that compromise. On September 9, 1850, Utah and New Mexico were each made a territory, with a right to decide, when seeking en- trance as a state, whether the new state should allow slavery or not. After ten years, the census of 1860 showed that in New Mexico there were, in June of tthat year, no slaves, and in Utah only twenty^ nine slaves. All efforts to estabHsh slavery in either territory had failed. Webster's judgment had been correct. In 1832-33 his powerful argument, sound logic, and unequalled eloquence had maintained, dur^ ing the nullification crisis, the true theory of our Constitution. In 1850 he greatly helped to secure for his country time to pre- pare for the shock of a secession war. The calm judgment of generations to come will perhaps yet render him his due. At that time the country felt the serious nature of the danger it had escaped. In 1852 the Whig and Democratic national 68 WASHINGTON VERSUS JEFFERSON conventions each placed in its platform a pledge to "resist every attempt to reopen the slavery question, no matter from what quarter it might come." Franklin Pierce, a New Hampshire Democrat, known to the South as a disciple of Calhoun, received the electoral votes of all the states except Mas- sachusetts, Vermont, Kentucky, and Ten- nessee, while his party filled more than two thirds of the seats in the national Senate, and commanded a majority of about sev- enty-five in the House. I was a Clay and Webster Whig, had be- lieved in the danger, and was glad of the escape of 1850. One morning in January, 1854, while my partner was writing at his desk, I began to read the morning paper before our fire. I suddenly called out, " John ! we are going to have slavery agi- tation worse than ever before ! " To his "Why?" I replied by reading from the congressional telegraphic bulletin Senator Douglas's proposal to make the Nebraska bill annul the Missouri Compromise, and said, " If his proposal shall be made law, there can be no room for any further com- promise ; slavery extension must be pre- vented." CONGRESS AND THE TERRITORY 69 Similar remarks were made by other men who with me had favored the compromise of 1850. A very mistaken impression has existed, esj)ecially at the South, as to the influence of abohtionism. In 1840 the entire vote of that party gave only 7059 for Mr. James G. Birney. In 1844 he received 62,300. In 1848 the " Barnburners " of New York, seeking to punish Cass for his defeat of Van Buren in the Democratic party, joined forces with former Birney men, and 291,^63 votes were cast for Van Buren. In 1852 John P. Hale received only 156,149. But the repeal of the Missouri Compromise shocked the convictions of great masses of men who had never thought of aiding abo- lition. They had no wish to interfere in any state in which they did not reside. But they considered national territory subject to national legislation, and held themselves responsible for the nature of this legisla- tion ; held that to legalize slavery in free territory would be lorong. In 1852 Ohio had sent a majority of Democrats to the national House of Representatives, and in 1853 had elected a Democratic governor by 70 WASHINGTON VERSUS JEFFERSON over 61,000 pluraHty. On May 30, 1854, the Kansas-Nebraska bill repealed the Mis- souri Compromise of 1820. On the second Tuesday of October thereafter, Ohio de- feated every Democratic candidate for Con- gress by heavy majorities and elected the Republican state ticket by over 77,000 plu- rality. Only seven of her eighty-eight coun- ties gave a Democratic plurality. In 1856 John C. Fremont, Republican candidate for president, upon a platform pledged to pre- vent slavery extension, received 1,341,264 votes ; in 1860 Abraham Lincoln's popular vote was 1,866,352. This was no growth of abolitionism; it was the voice of that opinion as to the evils of slavery, and to the national duty of preventing its extension, which was so prominent in the Constitutional Convention, in the early presidents, and in the great body of our people ; the identical opinion voiced by George Mason, of Vir- ginia, in the convention, previously quoted by me, when he said, " I hold it essential in every point of ^dew that the general govern- ment shall have power to prevent the in- crease of slavery." Webster's argument that slavery could CONGRESS AND THE TERRITORY 71 not possibly be established in our Mexican cession gained enough votes to carry the compromise of 1850 as an adjustment of that territory. Those votes would not have been given to open in like manner the old Louisiana purchase. At the time they were given no one claimed that a principle was being established that would repeal the pro- hibition of 1820. But in 1853 David R. Atchison, one of Missouri's senators, began a movement to carry slavery west of that state. When the Senate met in Deceraber, 1853, he had secured the cooperation of a majority of the Democratic caucus, and noti- fied Senator Douglas that his continuance as chairman of the Committee on Territories would depend upon his consent to open all of the Louisiana purchase to slavery. The astute Douglas planned to please the South and yet retain the North. He reported finally a bill to organize two territories : Kansas, bounded by the parallels 37° and 40° north latitude, separated by over thirty miles of slave Missouri from free Iowa, and Nebraska, bounded by 40° and 49° ; and extended over them all the laws of the LTnited States " except the eighth section 72 WASHINGTON VERSUS JEFFERSON of the Act preparatory to the admission of Missouri into the Union, approved March 6, 1820, which, being inconsistent with the principle of non-intervention by Congress with slavery in the states and territories as recognized by the legislation of 1850, com- monly called the compromise measures, is hereby declared inoperative and void : it being the true intent and meaning of this Act not to legislate slavery into any terri- tory or state, nor to exclude it therefrom, but to leave the people thereof perfectly free to form and regulate their domestic in- stitutions in their own way, subject only to the Constitution of the United States : Pro- vided that nothing herein contained shall be construed to revive or put in force any law or regulation which may have existed prior to the Act of the sixth of March, 1820, either protecting, establishing, prohibiting, or aboHshing slavery." In 1854 Thomas H. Benton, who had represented Missouri in the Senate from 1821 to 1851, who was active in the Sen- ate during the debates of 1850, and had full knowledge of them, represented St. Louis in the House, and earnestly opposed CONGRESS AND THE TERRITORY 73 the repeal of the compromise of 1820. He denied that in 1850 any member of the Senate supposed that the legislation of that year could or would in any manner affect the Act of 1820. The repeal would have failed to pass in 1854 had not a number of members from the North believed that times and circumstances had so changed that free immigration would pour into the new terri- tories three or four times as rapidly as slave immigration, and therefore make impossi- ble the establishment of slavery in either. Amono; those who so believed and so voted for the repeal was James H. Lane, of In- diana. His term expired with the 3d of March, 1855, and he at once emigrated to Kansas, and was very active in making it a free state. Senator Atchison had surmised the dan- ger from a more numerous free immigration, and for that reason had induced Douglas to so change the bill as to make two territo- ries. He thought that the free immigration would avoid passing through slave Missouri, and so pass through free Iowa into wide Nebraska ; while narrow Kansas, narrow as compared with the Nebraska of 1854, could 74 WASHINGTON VERSUS JEFFERSON be possessed and shaped by Missouri and other slave state emigrants and influences. It so happened that a Southern gentleman, known to me for some ten years, had settled in a western border county of Missouri. After Kansas had on the 2d of August, 1858, voted by almost 10,000 majority not to come in as a slave state under the Eng- lish bill and the Lecompton Constitution, this gentleman revisited Ohio, and, meeting me as an old friend, related to me the following facts : He said that prior to the election of a territorial legislature in Kansas, companies had been formed in the border Missouri counties, under regular or- ganizations and rules, for the purpose of forestalling free-state emigrants in taking control of Kansas. He became a member of one of these companies. Under notices and orders, these Missouri companies were marched to allotted voting precincts in Kan- sas, and there hunted and fished a specified number of days; then paid one dollar per head to an of&cer at each polling-place, and voted at the election. He told me that they felt some fear that at the next succeed- ing election in Missouri their votes might CONGRESS AND THE TERRITORY 75 be challenged because of having so voted in Kansas within the year, but that on ap- proaching the Missouri poll, his apprehen- sion was quieted by the fact that he saw sitting as a judge at the Missouri election a man who had voted by his side in Kansas. This mode of carrying elections in Kansas by voters from Missouri was continued until broken up by Governor Robert J. Walker. The territorial legislature thus chosen in the spring of 1855, as is well known, made the slave code of Missouri the law ctf the territory of Kansas. It continued in force until after Governor Walker and Secretary F. P. Stanton, both Southern Democrats, had certified to the election of free-state majorities in both houses of the territorial legislature in November, 1857, and until that legislature could meet and repeal said code. From 1854 to 1861, Presidents Pierce and Buchanan, warm partisans of the South, and like - minded officials as judges and other territorial officers, sus- tained the pro - slavery party in Kansas, while several regiments of the regular army, and at times large bodies of Missouri mili- tia, were used effectively in support of the 76 WASHINGTON VERSUS JEFFERSON pro-slavery territorial legislature. Earnest appeals were made throughout the South to induce pro-slavery emigrants to come in aid of the efforts that were used for four years to make Kansas a slave state. Thus the power of the national govern- ment, backed by an armed force, equipped with judges, marshals, and deputy marshals, having near at hand one of the most popu- lous of the slave states intensely interested in the struggle, and bidden Godspeed by all the Southland, — millions of intelligent men and women, — was exerted for four years against " free-state emigration " backed by free - state encouragement. The struggle had been invited by the terms of the Kan- sas-Nebraska bill. The South had from the start a full slave code recognized by national and territorial authorities as in full legal force. Free-state emigrants who attempted to pass through Missouri were obstructed, impeded, sometimes turned back. The main body for a time were compelled to enter Kansas via Iowa and Nebraska. The Missouri prohibitory line was repealed on May 30, 1854. On August 2, 1858, the territory voted on the free-state side, CONGRESS AND THE TERRITORY 11 11,300 ; pro-slavery, 1788 ; and the North had won the victory. The excitement of the contest made both sides bhnd to the plain teaching of the un- questioned, the indisputable facts. These facts were : Congress, the nation, had re- pealed the prohibition and left for slavery an open road to Kansas ; had permitted it to make its existence there legal, had made it possible for the South to bring it into the Union as a slave state, provided it could in- duce a majority of the legal voters in the territory to adopt a slave constitution at a fair vote and count. Kobert J. Walker and F. P. Stanton, Southern men of high repute, asserted, supported by unquestionable evi- dence, that the pro-slavery elections in 1857 at Oxford and in McGee County reported poll books copied from pages of the " Cin- cinnati Directory," and 1600 votes in the one from less than sixteen houses, and over 1200 votes in the other, where were no in- habitants and where no election at all had been held. No man questioned the elec- tion of August 2, 1858, and its majority of 9512 against the South. If under such favoring CKCumstances, in 78 WASHINGTON VERSUS JEFFERSON that part of the national domain nearest to and most accessible from the South, with the national officials warmly in sympathy with the South, the failure was so signal, where and when could success be found? From May 30, 1854, to June, 1860, both Kansas and Nebraska were legally as open to slavery as South Carolina. The census taken in June, 1860, tells us that there were then only fifteen slaves in Nebraska, and only two in Kansas. From September 9, 1850, to June, 1860, Utah and New Mexico, embracing also what are now the western half of Colorado and all of Nevada and Arizona, were open to the South, with no congressional prohibition of slavery, and with the right specified in their acts of or- ganization to come in as states with or without slavery, as their people respectively should decide. I believe pro-slavery sym- pathizers had also induced a territorial legis- lature in New Mexico to pass a slave code to encourage Southern immigration. Yet in almost ten years only twenty-nine slaves had become settled in Utah, and none in New Mexico. Althouo^h men of the South dif- fered in opinion on many questions from CONGRESS AND THE TERRITORY 79 men of the North, all men hieio that no slave state could be formed unless a major- ity of its legal voters should so wish. In the generations that had passed since the settlement of Missouri and Arkansas, im- mense chancres had occurred. The white population of North and South stood to each other in 1860 as about 19,000,000 to 8,000,000, while in 1820 they were about as 3,700,000 to 2,900,000. In 1820 there were no railways and few steamboats. In 1860 the North was weU suppHed witl^ both modes of transit. The unwillmgness of*free laborinof men to make homes in slave states was well known. These sio;nificant census facts, added to the vote of Kansas on Au- gust 2, 1858, made it as plain as daylight that it had become impracticable to so popu- late any part of our national territory as to secure the votes requisite to adopt a slave constitution. By Febi;uary, 1861, this had become so evident to Northern men that when Senator James S. Green, of Missouri, then chairman of the Senate Committee on Territories, re- ported bills to organize the territories of Colorado, Dakota, and Nevada without any 80 WASHINGTON VERSUS JEFFERSON prohibition o£ slavery, no Republican moved for a prohibitory amendment, and senators of all parties united in passing the laws as worded by a Southern Breckinridge Demo- crat. Like votes were given in the House of Representatives, President Buchanan ap- proved them, and before the inauguration of President Lincoln every foot of national land had been placed in organized territo- ries without a statutory word prohibiting any slaveholder from making therein a home for himself and his slaves. The Nor^h had become convinced that such a statutory prohibition was no longer neces- sary ; that a new slave state made out of said land had become an impossibility. IV HOW CIVIL WAR MIGHT HAVE BEEN PRE- VENTED If the twelve judges of England had given judgment that John Hampden was not bound to pay " ship money " upon a king's assessment not authorized by an^Act of Parliament, Charles I. might have died quietly in his bed after a successful reign. If Chief Justice Taney and Justices Wayne, Daniel, Grier, and Campbell had been con- tent to allow Justice Nelson to state why they held that the court had no jurisdiction of the Dred Scott case, and to announce its dismissal (as they had at^first directed him to do), Jefferson Davis might have died a United States senator from Mississippi, af- ter more years of service in that body than Benton of Missouri, Sherman of Ohio, or Morrill of Vermont could count. I think that no judicial opinion ever announced by man brought sickness, misery, and death in 82 WASHINGTON VERSUS JEFFERSON varied forms to so many human families as did the " obiter dicta " of those five judges, every one of them " an honorable man." Their utterances influenced Senator Jeffer- son Davis. My study of his history has caused me to think him a Christian gentle- man ; a man of honor and integrity ; of very considerable ability as a debater and orator ; and firm in his adherence to what he believed to be right. But it seems to me that he was specially lacking in practi- cal common sense. He was devoted to the interests of the Southland and the Southern people ; he would willingly have died in their cause. Yet I believe facts are such that it will appear to calm judgment that the error into which he was led by the Dred Scott case caused the Civil War and the destruction of slavery. It had been axiomatic among judges and lawyers that unless a court had jurisdiction of a case it could not legally pronounce any judgment therein except to announce the lack of jurisdiction and order the case from the docket. If all of the nine judges belong- ing to different states and parties had been of the same opinion upon the power of Con- HOW CIVIL WAR WAS PREVENTABLE 83 gress to prohibit slavery (as the x\ct of March 6, 1820, had provided), they might ha.ve supposed that the announcement of such unanimity would allay agitation upon that question, and therefore justify a de- parture from strict law and custom. But while Justice Nelson held that Dred Scott, by returning to Missouri, had reestablished his legal condition as a slave, and that the Act of March 6, 1820, therefore did not apply to him, and Justice Catron held that said Act of March 6, 1820, was not ^alid because of the terms of the treaty of 1803 with France, neither of them beHeved in the constitutional theory announced in that case by Chief Justice Taney. Justices McLean and Curtis openly announced their dissent from that theory ; Justices Nelson and Catron made it evident to inteUigent lawyers that they did not concur in that theory. So the court stood five for the doctrine of Calhoun, and four against it. If Judge Catron had recalled the fact that while France owned Louisiana none of its inhabit- ants could gain any right to colonize any of the land not by government order thrown 84 WASHINGTON VERSUS JEFFERSON open to settlement until the government should direct time^ place, and terms, and that the United States had succeeded to the governmental power of deciding when, where, and under what regulations new settlements might be made, I believe he would have united with McLean and Curtis in uphold- ing the validity of the Act of 1820. I also believe that if Justice Nelson had then an- nounced his opinion on that question, he would have held it constitutional, and so made the court stand five to four. That the five judges, under the circumstances, per- sisted in making public their " obiter dicta " might well have caused careful, thinking lawyers to doubt the accuracy of their legal opinions upon the question. If they could be so indiscreet as to vio- late custom, merely to tell the world that a majority of one would so adjudge if a pro- per case should he submitted to the court, a careful thinker might well doubt. Before telling how their " obiter dicta " influenced Mr. Davis, let me state a few facts thus far omitted from my history of the national use of said power to prohibit. ^ In August, 1789, the act adapting the HOW CIVIL WAR WAS PREVENTABLE 85 " ordinance of 1787 " to the neV Constitu- tion^ and so continuing its prohibition of slavery north of the Ohio, was approved by Washington. On May 7, 1800, John Adams approved the Indiana Territorial Act. On January 11, 1805, Jefferson ap- proved the Michigan Territorial Act. On February 3, 1809, he approved that for Illi- nois. On March 6, 1820, Monroe approved the famous Missouri Compromise Act. On April 30, 1836, Jackson approved the Wis- consin Act. On June 12, 1838, Van ^^uren approved the Iowa Act. On March 4, 1845, Tyler approved the Texas Joint Re- solution. On August 14, 1848, Polk ap- proved the Oregon Act, and on March 3, 1849, the one for jMinnesota. Beginning with the expression of a pur- pose, in 1787, to frame a national supreme government, with a judiciary authorized to decide questions that might arise between its members, or between any member and the nation, followed by the completion, ratification, and establishment of that gov- ernment and that court, by the continuous exercise from August, 1789, down to March 3, 1849, by Congress, of the power to legis- 86 WASHINGTON VERSUS JEFFERSON late for national territories and to prohibit slavery therein, the continuous approval of said acts by every president to whom one was presented (including six Southern-born men and slaveholders), with at least three unanimous decisions made by the Supreme Court in 1816, 1819, and 1824 (during that period in our national history in which party spirit was less violent than any other), upholding Washington's construction of the Constitution, and deciding in most positive terms against the theory secretly set forth by Jefferson, we have a body of authority that must satisfy a considerate, well-in- formed mind that the Convention of 1787 did not construct the chaotic nonentity de- scribed by the Kentucky resolution of 1798, on which the five " obiter dicta " were based. Unhappily Jefferson Davis had grown up as a disciple of John C. Calhoun, had ac- cepted his premises as facts, and adopted his conclusions. To him the " obiter dicta " of Taney, C. J., and his four associates came as '" ex- ceeding glad tidings ; " seeming, as they did, to clothe with judicial form the political HOW CIVIL WAR WAS PREVENTABLE 87 articles of faith taught by the great South CaroHnian. Had Mr. Davis's mind been filled with practical common sense, he would have asked himself : " What practical effect can this doctrine now have in the direction of actually establishing slavery in any of our territories? " Could it do more than to induce Con- gress to pass a law making it legal for any emigrant to take with him, from any exist- ing state, his slave, and maintaining his right to hold him until the territory should iftake its constitution and gain admission to state- hood ? " Even Mr. Davis would not have claimed more. His consideration of the question convinced him that, under the rul- ing of the five judges in the Dred Scott case, it was the duty of Congress to pass such a law. Not being a man of practical common sense, he did not ask himself the next ques- tion : — ^' What can such a law accomplish in the way of creating a new slave state ? " In the spring of 1855, a complete slave code, the result of Missouri's forty years' experience with slavery, — having free terri- 88 WASHINGTON VERSUS JEFFERSON tory on its north, east, and west, and having been thereby taught how best to protect her slave property, — had been enacted by the territorial legislature for Kansas. The valid- ity of this code had been recognized by the national and territorial authorities. Two successive administrations, full of sympathy with the South, had rendered all practicable aid in the effort to secure Kansas for slav- ery, and to turn free-state emigration to Nebraska. As already stated, by August, 1858, the voters of Kansas were almost ten to one against slavery ; and by June, 1860, there were only two slaves in the territory. Between September 9, 1850, and June, 1860, there had been no effort to prevent the tak- ing of slaves to New Mexico and Utah. A territorial legislature had invited it to New Mexico. As already stated, during the ten years only twenty-nine slaves had gone to Utah, and not one to New Mexico. These stubborn but indisputable facts would seem to demonstrate that the enact- ment of a congressional territorial slave code could not possibly do any good to the South. Few slaveholders would care to settle with slaves in a community that with- HOW CIVIL WAR ^VAS PREVENTABLE 89 in a few years would forbid slavery in the state. Common sense would also have told him that it would be idle to urge upon Congress the enactment of any such code. The practice of the government for seventy years had been to use its power, if at all, to prevent the extension of slavery into free territory. It had tested to the uttermost Southern argument, eloquence, and threats to induce ConoTess to refrain from active c5 prohibition of slavery. ^ Moreover a united South, aided by a Northern minority, on the 30th day of May, 1854, had put into the form of law the following words : — " Which being inconsistent with the prin- ciple of non-intervention by Congress in the states and territories, as recognized by the legislation of 1850, commonly called the compromise measures, is hereby declared inoperative and void ; it being the true in- tent and meaning of this Act not to legis- late slavery into any territory or state, nor to exclude it therefrom, but to leave the people thereof perfectly free to form and regulate their domestic institutions in their 90 WASHINGTON VERSUS JEFFERSON own way, subject only to the Constitution of the United States : Provided that no- thing herein contained shall be construed to revive or put in force any law or regu- lation which may have existed prior to the Act of the sixth of March, 1820; either protecting, establishing, prohibiting, or abol- ishing slavery." Thus according to the South, speaking by the almost unanimous voice of its sena- tors and representatives in 1854, the prin- ciple of the compromise measures of 1850 was ^' non-intervention by Congress : " to leave the whole matter to the people of the states and territories. Two years later, in 1856, the South, in the Democratic National Convention at Cincin- nati, placed James Buchanan upon a plat- form expressly indorsing and adopting said extract from the Kansas-Nebraska bill as the true party and Southern doctrine. The people made him president. Thus to a policy and practice that for seventy years had furnished no instance of congressional legislation establishing or sup- porting slavery (during fifty years of which the presidents had been Southern men and HOW CIVIL WAR WAS PREVENTABLE 91 slaveholders), was added a law voted for with unanimity by the South in both houses of Congress, and a party platform fully approved by the South and ratified by the people, that Congress should not legislate on slavery in a territory. This would seem sufficient to justify con- gressmen who believed slavery to be unwise or wrong, in refusing to vote for a congres- sional slave code for free territories. Common sense, if consulted by Jefferson Davis, would have said to him, " Yoij can- not possibly do a more useless, more unwise, or more dangerous act than to ask for a congressional slave code : if enacted, it could not possibly do any good for you, or for the South ; the attempt to secure it will divide the Democratic party and endanger the Union ; and the attempt cannot possibly secure a code." Being a theorist instead of a practical man of affairs, Senator Davis, on the second day of February, 1860, introduced in the Senate a series of resolutions, two of which I here quote. His fourth read, " That neither Congress nor a territorial legislature, whether by 92 WASHINGTON VERSUS JEFFERSON direct legislation or legislation of an in- direct and unfriendly character, possesses power to annul or impair the constitutional right of any citizen of the United States to take his slave property into the common ter- ritories, and there hold and enjoy the same while the territorial condition remains." His fifth read, " That if experience should at any time prove that the judiciary and executive authority do not possess means to insure adequate protection to con- stitutional rights in a territory, and if the territorial government shall fail or refuse to provide the necessary remedies for that pur- pose, it will be the duty of Congress to sup- ply that deficiency." The most notable objection to these reso- lutions arises from the fact that no citizen of the United States ever had any constitu- tional right to take a slave into any terri- tory of the United States. The Constitution makes no reference to any person who can be considered as a slave except in the following three instances : — 1. The third clause of section 2, article I., directs that when apportioning representa- tives and direct taxes among the states, to HOW CIVIL WAR WAS PREVENTABLE 93 the whole number of free persons, inchid- ing those bound to service for a term of years, and exckiding Indians not taxed, must be added "three fifths of all other persons." 2. Section 9 of article I. authorized Congress to forbid entrance into any state •^ of such persons as any of the states now existing shall think proper to admit " at any time after December 31, 1807. No matter how anxious any state might be to maintain or increase the number of slaves within its limits after that date, it ^ould not introduce a single one from outside the United States without the consent of Congress. This was a plain constitutional implication that such an increase in the number of slaves ought to be prevented for the national good. Under neither of these clauses could any one claim a right to take a slave into any territory. Neither of them confers or re- cognizes any right on or in any master. They merely recognize the fact that in some states there are such persons, and that some states " think proper to admit such persons " from abroad. No. 3 reads, " No person held to service 94 WASHINGTON VERSUS JEFFERSON or labor in one state under the laws thereof, escaping into another, shall in consequence of any law or regulation therein be dis- charged from such service or labor, but shall be delivered up on claim of the party to whom such service or labor may be due." This is a plain recognition of the fact that under the laws of South CaroHna "John" may be held to service or labor in that state; that under said state laws service or labor to he rendered hy " John " in South Carolina may be due to a master therein. It is also, by implication, recogni- tion of the fact that that law of South Caro- lina has no force outside of the limits of that state ; and that if " John " escaped from South Carolina, " John " would be free, unless either the laws of the state into which he escaped should permit his master to reclaim him, or unless the national Con- stitution should provide, as it did, for " John's " delivery up on claim. It is no recognition of the master's right to take " John " outside of South Carolina and hold him to service. It plainly implies that the master, if he shall take " John " beyond the South Carolina line, must do HOW CIVIL WAR WAS PREVENTABLE 95 SO at his own risk. The master did not own " John " as a farmer owns his horse or ox or hog. No " fugitive " clause was deemed necessary as to such "property." The farmer owns their limbs, their bodies — the whole of them ; could kill or sell or ship at pleasure. But the master had a debt due to him from his so-called slave, payable in labor to he performed within the state of South Carolina, or within any other state that would so leoislate. An emigrant farmer could carry with hin% his cattle from South Carolina to any other locaHty, but he could not carry with him any South Carolina statute. His right in his slave was limited to the privileges granted by the South Carolina statute, and for that reason he could not emioTate with his slave as he might do with his cattle. When the Supreme Court of the United States, in Prigg v, Pennsylvania, 16 How- ard, 540, unanimously held " The state of slavery is deemed to be a mere municipal regulation ; founded upon and limited to the range of the territorial laws," it stated an old, well-established, and generally recog- nized doctrine. 96 WASHINGTON VERSUS JEFFERSON The Constitution imposed no duty upon the nation in aid of the master save the one described by the " fugitive slave clause ; " to wit, to furnish by appropriate legislation the means for making proof of claim and se- curing a delivery of one who had '^escaped" from the state " in which " he was bound to labor, to another. Congress, by the Acts of 1793 and 1850, had fulfiUed this duty. As we have seen, the practice of the Ex- ecutive, of Congress, and of the judiciary, from 1789 to 1857, had conformed to the doctrine that no citizen of the United States had any constitutional right (no right under the national Constitution) to take his slave into any territory. We have also seen that a majority of both houses of Congress, including almost all the senators and representatives from the South, proclaimed to the world in the form of a law that by the legislation of 1850 a prin- ciple had been established ; to wit, non- iiitervention by Congress in the states and territories ; and that in order to give effect to that principle, they, by the Act of May 30, 1854, meant " not to legislate slavery into any territory or state, nor to exclude it HOW CIVIL WAR WAS PREVENTABLE 97 therefrom, but to leave the people thereof perfectly free to form and regulate their domestic institutions in their own way, sub- ject only to the Constitution of the United States." As the only duty imposed by that Consti- tution in favor of slavery related to such escaped slaves as we have described, and the Act of Congress of 1850 fully provided appropriate legislation as to them, there re- mained nothino; due from Cono;ress accord- ing to the principle and law thus de Jared and enacted by the South itself. Mr. Davis's resolution made an entirely new claim ; made it for the first time after the Constitution and government had been in operation for seventy years upon an op- posite practice ; and made it at a time when it was apparent to every one that the new doctrine could not be applied to any prac- tical use. The senator and the " obiter dicta" urged the theory that the general government held title to the land in trust for the respective states ; that the states, as equitable joint owners, had a right to enter into possession in common, their slaves being covered by their respective state laws, 98 WASHINGTON VERSUS JEFFERSON with the same effect as if the land were within their state boundaries. But the en- tire Supreme Court of the United States, speaking judicially, and not as " obiter dicta/' in 1816, 1819, and 1824, had de- cided that the national government held power and title as the representative of " the people of the United States," and not as representative of the states, with full power to make all needful rules and regula- tions as to the territory, looking to the welfare of the whole people. The words of George Mason, of Virginia, in 1787, and of Judge Thurman, of Ohio, in 1847, made plain that that welfare could not be pro- moted by a congressional slave code. In April, 1860, the Democratic National Convention met at Charleston, South Caro- lina. It was asked to place in its platform the substance of Senator Davis's fourth and fifth resolutions. On April 30, by a vote of 165 to 138, it substituted for them the following : — " Resolved, that all questions in regard to the rights of property in states and terri- tories arising under the Constitution of the United States are judicial in their character, ROW CIVIL WAR WAS PREVENTABLE 99 and the Democratic party is pledged to abide by and faithfully carry out such de- termination of these questions as has been made, or may be made, by the Supreme Court of the United States." As the demand made by the Davis reso- lutions grew out of the " obiter dicta " of the ^ye judges in the Dred Scott case, and section 2, article III. of the Constitution expressly gave to that court jurisdiction of " all cases, in law and equity, arising under this Constitution, the laws of the ttiited States, and treaties made or which shall be made, under their authority," it would seem that the majority of the convention pledged the party to all that any portion of any party or country had any right to demand, and to all that the party could rightfully promise. But under the Jeffersonian-Calhoun-Davis doctrine, that judicial article III. of the Constitution was always read as if it had subjoined to it the following words : Pro- vided, however, that whenever the sovereign people of any state by a majority vote taken in convention shall decide that any enact- ment made by the Congress is unconstitu- 100 WASHINGTON VERSUS JEFFERSON tional, or that the general government does not possess a power by it claimed; from the time of said vote in state convention said enactment of the Congress shall have no force, and the general government shall not exercise said power, within the limits of said state, or as to any citizen or resident of said stiaLe. While, therefore, the advocates of a con- gressional slave code were willing to use the "• obiter dicta " of said five judges in order to induce the party and Congress to vote for such a code, they were unwilling to commit themselves to an admission that any state was under obligation to obey a decision of the United States Supreme Court unless said state should approve said deci- sion. There was also serious doubt about the nature of the decision the Supreme Court would make upon the question raised by the Davis resolutions. Justice Daniel, one of the five, was about to die ; Justice Clifford, of Maine, sat in Curtis's place. Their utterances in the Dred Scott case plainly indicated that neither Catron nor Nelson believed in the doctrine. Grier, who had HOW CIVIL WAR WAS PREVENTABLE 101 eome upon that bench ten years after Taney, had concurred with Taney in denying to Congress power to prohibit slavery in a ter- ritory; but he might not go so far as to construe words intended to secure to a mas- ter the return of an escaped slave to the state in which his service w^as due, as mak- ing it the duty of Congress to pass laws to enable that master to take said slave or any slave to free territory, and there hold him in bondage. The action of the secession leaders had been deliberately planned. Al- though the demand for a congressional slave code was first made about seventy years after Washington's first inauguration, although it required their party to adopt a doctrine directly opposed to its platform of 1856, and also to the almost unanimous leo^islative action of the South in Congress in 1854, men who had long wished to force secession induced Alabama, in 1860, to instruct her delegates to withdraw from the National Democratic Convention unless that body would place the slave code resolutions in its platform. After the vote of April 30, 1860, herein- before stated, the delegates from Alabama, 102 WASHINGTON VERSUS JEFFERSON Mississippi, Louisiana, South Carolina, Flor- ida, Texas, and Arkansas withdrew from that convention. This divided the Demo- cratic party, and made probable the election of the Republican candidate. I have already stated that the repeal of the prohibition of 1820 shocked the convic- tions of such masses of men that the vote cast in 1856 against the extension of slavery leaped up to 1,341,264, more than nine times as many as Hale had received in 1852. This new demand for a congressional slave code had a like effect upon large masses of men who in 1856 had voted for Buchanan. In that year the conservative states of New Jersey, Pennsylvania, Indiana, and Ilhnois had continued to vote for Democratic elec- tors. But men who believed as George Mason, as the great majority of the Consti- tutional Convention, of our presidents, of our statesmen, and of our people had firmly believed, that " Slavery discourages arts and manufactures ; that the poor despise labor when performed by slaves ; that they pre- vent the emigration of whites who really enrich and strengthen a country ; that they produce the most pernicious effect on man- HOW CIVIL WAR WAS PREVENTABLE 103 ners ; that every master of slaves . is born a petty tyrant ; that they bring the judgment of Heaven on a country ; that it is essential in every point of view that the general government should have power to prevent the increase of slavery," could never vote for a congressional slave code. In November, 1860, these people replied to the demand for a slave code by increasing the vote for Abraham Lincoln to 1,866,352, a gain of 525,088, almost 40 per cent., and gave him the electoral vote of sai(^ four conservative states — except three that New Jersey cast for Douglas, who also had re- fused to vote for a slave code. Southern politicians and people failed to understand the nature and basis of Northern opinion. Even Mr. A. H. Stephens, of Georgia, sup- posed them to be fanatics — excited by hos- tility to the South, etc. In fact, the growth and labors of "abolition societies," as such, had ceased when the repeal of the Missouri Compromise made known to Northern peo- ple everywhere that the time for putting an end to slavery extension had come ; that they must maintain the doctrine of the fathers of the Constitution, or a fatal change 104 WASHINGTON VERSUS JEFFERSON in our institutions would be made. Enough conservatives moved so slowly that another Democratic president succeeded Pierce. But the ill-considered demand for a congressional slave code aroused even these conservatives, and their accession to the Republican party elected Lincoln. The following words, spoken by Mr. Lincoln in 1858, during his debate with Douglas, show that the 1,866,352 did not vote for a fanatic or for an enemy of the South. "Is not Congress itself bound to give legislative support to every right that is established in the United States Constitu- tion? A member of Congress swears to support the Constitution of the United States ; and if he sees a right established by that Constitution which needs specific legislative protection, can he clear his oath without giving that protection ? Let me ask you why many of us who are opposed to slavery upon principle, give our acqui- escence to a fugitive slave law? Why do we hold ourselves under obligations to pass such a law, and to abide by it when it is passed? Because the Constitution makes provision that the owners of slaves shall HOW CIVIL WAR WAS PREVENTABLE 105 have a right to reclaim them. It gives the right to reclaim slaves, and that right is, as Judge Douglas says, a barren right unless there is leoislation that will enforce it. The mere declaration, ' No person held to ser- vice or labor in one state under the laws thereof, escaping into another shall, in con- sequence of any law or regulation therein, be discharged from such service or labor, but shall be delivered up on claim of the party to whom such service or labor may be due,' is powerless without specific legislation to enforce it. Now, on what ground would a member of Congress who is opposed to slavery in the abstract, vote for a fugitive slave law, as I would deein it my duty to do f Because there is a constitutional right which needs legislation to enforce it. And although it is distasteful to me, I have sworn to support the Constitution ; and having so sworn, I cannot conceive that I do support it if I withhold from that right any necessary legislation to niake it practical." I do not think that Senator Davis, in 1860, wished for secession. But Mr. Yancey, of Alabama, many leading men in South Caro- lina, and some others had long desired to 106 WASHINGTON VERSUS JEFFERSON break up the Union. These men made use of Mr. Davis in the Senate and before the people. When their efforts dissolved the Democratic convention, in April, 1860, they and their followers were joyous ; they deemed successful secession assured. After the North had consented to the removal of the statute that since 1820 had prohibited slavery, and had yielded obedience to legis- lation framed by the South, the South for the first time demanded that men who be- lieved slavery an evil and a wrong should vote for a code of slave laws. Because this was refused, men who had predetermined upon secession misled the Southern people into what became the war of 1861-65. By November 15, 1860, the detailed re- sult of the election held on the 6th of that month had become known. If Senator Jef- ferson Davis had then consulted Common Sense as his oracle, something like the fol- lowing dialogue might have followed : — Dams. " What is the situation ? " Common Sense, " Abraham Lincoln, a man born in Kentucky not far from your own first home, whose manhood has been lived in Illinois, while your own has been HOW CIVIL WAR WAS PREVENTABLE 107 in Mississippi, has been elected President by a majority of the electoral vote, while the aggregate popular vote against him exceeds that for him by about 900,000. " He can, if he shall hve, be President for four years from March 4, 1861. During his first two years the Democratic party, in- cluding all congressmen from the South, will control both houses of Congress ; they will have a majority of 8 in the Senate and 16 in the House. No new laws can be made and no old ones repealed without the consent of that party prior to March, 1863. Unless the Republicans shall so gain at the elections of 1862 as to secure a majority in both houses, no legislation not approved by the Democratic party can be enacted during Mr. Lincoln's term of office. His party is composed of men who have voted together solely in order to prevent the extension of slavery into free territory. The Kansas ex- periment has proved that no congressional prohibition is necessary in order to prevent the conversion of any territory now free into a slave state. The Republican leaders understand this. No attempt will be made to enact any such prohibitory law. The 108 WASHINGTON VERSUS JEFFERSON Democratic future seems to me bright. As that party is not strong enough in either house to overcome a veto, no extreme pro- slavery or Democratic partisan measure can be successful, and the wise heads will take care that none such shall be favorably re- ported by any committee. The country will be satisfied that there is no danger of the extension of slavery into free territory ; that question will cease to be the prominent one ; the Republican party has not lived long enough to fuse its heterogeneous ele- ments ; before two years, so many will have left it that the majorities against it in the next Congress will be larger than they are now : and in 1864 the Democratic party, reunited and refreshed by four years' ab- sence of internecine war, will perhaps place you in the presidential chair. The South is in no real danger of losing honor, pro- perty, or prosperity because of this election. That Southern statesman who can quiet her unfounded apprehension and repress her un- necessary excitement will merit and will gain the good will and the support of the vast majority of the people. His opportunity is unexampled." HOW CIVIL WAR WAS PREVENTABLE 109 Davis. " But Lincoln can fill all federal offices in our states with men hostile to slavery and to our people. His officials can do great harm." Common Sense. " A Democratic Senate, in which Southern senators control the cau- cus, must confirm his nominees. They will reject the unworthy and the unsuitable." Davis. " How can we submit to a Presi- dent so hostile to our institutions ? To do so would dishonor our people." Common Sense. " Mr. Lincoln aryl the platform of his party treat of slavery in sub- stantially the same words that George Ma- son, of Virginia, used in the convention of 1787, that Jefferson and many other South- ern statesmen have both spoken and written. The Chicago platform of 1860 resolved in substance that another slave state should not be made out of free territory. George Mason said in 1787 that it was essential that the general government should have power to prevent the increase of slavery. Six slave-holding presidents have approved laws prohibiting the entrance of slavery into ter- ritory named therein. How can the South be dishonored because a man holding the 110 WASHINGTON VERSUS JEFFERSON same opinions about slavery that so many Southern statesmen have spoken and writ- teUj will sit in the presidential chair ? " Davis, " What about the fugitive slave law ? " Common Sense, " It is and will remain in full force, unless the Democratic Congress shall alter it ; and that is not at all prob- able." Davis. " But will Lincoln execute it? " Common Sense. " If you will read what he said at Jonesboro, Illinois, on September 15, 1858, in a public speech, part of his debate with Douglas, you will see that he holds that the South has a right to the full enforcement of the fugitive clause of the Constitution ; and that, if existing legisla- tion shall be found inefPectual, every con- gressman is bound by his oath to vote to make it effectual. " Moreover, the fact that that speech was made in the hearing of thousands, was pub- lished and read everywhere at the North for two years prior to his nomination and election, indicates that the masses of the Republican party also recognize that consti- tutional right of the South." HOW CIVIL WAR WAS PREVENTABLE 111 Davis. " If I could only feel sure of the future ! " Common Sense. " The future is yet within easy control of the South and the Democratic party. The Republican party must of necessity — because of the diverse nature of its elements — speedily dissolve, unless the South, by attempting measures that cannot possibly help slavery, shall force those elements to still adhere to each other." Dams. " But will the North lea^ the South and its institutions alone ? " Common Sense. " Their conduct since 1846 furnishes ample proof that they will. In 1847 they made known, by a heavy ma- jority in the House of Representatives, that they were of opinion that slavery ought to be prohibited from entering any territory that Mexico might cede to us. Judge Thur- man, of Ohio, stated their reasons. But they yielded to the earnest opposition of the South, and consented to the establishment of slavery in the 488,000 square miles of Utah and New Mexico (as they then were) if their people should so wiU. So by Octo- ber, 1850, the position of the entire terri- 112 WASHINGTON VERSUS JEFFERSON tory of the nation in relation to the entrance of slavery was fixed and determined by law; the acts as to Oregon, Minnesota, and all of old Louisiana and Texas north of 36° 30', and the compromise measures of 1850, were all in full force. That the acts organizing Utah and New Mexico were not intended in any manner to affect the prohibitory clauses of the Acts of 1820 (Missouri), 1845 (Texas), 1818 (Oregon), and 1819 (Minnesota), is shown by the fact that no proposal to repeal or amend any of those acts was even offered in either house of Congress. " The North joined the South in the pledge of 1852, " to resist every attempt to reopen the slavery question ; " and all of its states except Massachusetts and Vermont voted with you for a President known to be most friendly to the South ; and supported him by heavy majorities in each house of a Congress equally friendly to you. The coun- try was as quiet as a Quaker meeting until the repeal of the Missouri Compromise rang the alarm bell throughout the North. The pledge in the Cincinnati platform, to let the people in the territories by free vote settle the slavery question for themselves, caused HOW CIVIL WAR WAS PREVENTABLE 113 the choice, in 1856, of another President and Congress friendly to the South. Mr. Buchanan's assurance, made through Grov- ernor Walker, that the people of Kansas should have free and fair elections and the right to vote upon their constitution, not only restored quiet in that disturbed terri- tory, but so affected elections elsewhere that Governor Chase, of Ohio, whose plurality in 1855 had exceeded 15,000, in October, 1857, barely reached 1500 ; a decrease of ninety per cent. ^ '' The failure to support Governor Walker, and the attempt to compel Kansas to ac- cept a constitution on which her people had not been permitted to vote, again sounded the alarm bell, and the elections of 1858 resulted in a house which chose a Re- publican speaker. The fact that the end of the Kansas struggle, in August of that year, had given its people full control of their territory, had begun to quiet the country when, once more, the South rang the alarm bell by demanding a congressional slave code. You see the result of that in the election of November 6, just had. These facts convince me that no legislation injuri- 114 WASHINGTON VERSUS JEFFERSON ous to the South, its domestic institutions, or its people will be had during the Congress of 1861-63 ; and it will be the fault of the South herself if Democratic majorities shall not be materially increased by the elections of 1862." Davis. " In time free immigration will so add to the number of free states that they may abolish slavery in the states by amend- ing the Constitution. Can we escape that danger unless we now secede ? " Common Sense, " The action of the North since 1845, just related to you, satisfies me that the people there have no intent to interfere with slavery in the states ; and that they will now, if the South shall so desire, so amend the Constitution that no future amendment shall affect slavery within any state unless that state shall itself consent thereto. The Northern people, as a mass, prefer business to politics \ and they under- stand that business prosperity is promoted by quiet, content, and good order among the people. Unless you rouse them by some demand that they shall do or consent to some action that in their belief is wrong, they will continue to permit Southern poli- HOW CIVIL WAR WAS PREVENTABLE 115 ticians and statesmen to have a controllinof' influence in general administration, as tliey have done for more than three fourths of the life of our national Constitution." Davis. " The South feels aggrieved by the ' personal liberty ' bills passed by legis- latures of Northern states." Common Sense. " None of these inter- fere with the effective execution of the fugi- tive slave law except those of Massachusetts, Vermont, Michigan, and Wisconsin. The supreme courts of every state in whioia the question has been htigated, except that of Wisconsin, have adjudged unconstitutional all their provisions that conflict with said fuoitive slave law. The Wisconsin cases were taken to the Supreme Court of the United States ; and since that court, by a unanimous judgment, in 1858 reversed the holclino; of the Wisconsin court, there has been no trouble in that state. The habits of thinking of the Northern people ^vill not tolerate disobedience to a decree of the national Supreme Court, and its writs and orders are enforced. It is not the Northern habit to repeal or amend a statute after it has been adjudged unconstitutional by the 116 WASHINGTON VERSUS JEFFERSON court of last resort, except where the statute can be made constitutional by amendment. After a final judgment that a statute is un- constitutional they treat it as so much waste paper, notwithstanding it remains in print in the statute book. The present fugitive slave law has been in force ten years. The census reports show that the number of slaves who escaped in 1850 was 1011 ; the number in 1860 was only 803. During the ten years the total number of slaves had in- creased by about 500,000 ; yet there was a decrease of over 20 per cent, in the number of fugitives, and a decrease of a larger per cent, of fugitives for each 100,000 slaves. The South need suffer no disquiet because of said ' personal hberty ' bills." Davis. " Our people, nevertheless;, are uneasy and excited. What is the best course to pursue ? " Common Sense, "Before I nam^e that course, let me convince you of one or two facts not yet fully considered. When the Democratic and Whig national conventions met in 1852, the South was so well satisfied with the national laws in regard to slavery then in force that she joined heartily in HOW CIVIL WAR WAS PREVENTABLE 117 the j)ledge adopted by both parties ' that thej would resist every attempt to reopen the slavery question.' Logic will not permit you to deny that a proposal to repeal one of the laws in regard to slavery then in force was ^ an attempt to reopen the slavery ques- tion/ or that said pledge required both of said great parties to resist any proposal to repeal either of said laws. Those who re- sisted the repeal of the Missouri Compromise strictly obeyed the platform of 1852. The entire slavery struggle from January, 1854, to November 6, 1860, on the part of the North, has been to restore and maintain, in substance, the laws as to slavery as they were in 1852. In fact, therefore, during all of said years the North has been on the defensive and not aggressive. As to the right of secession a few words. No intelli- gent, educated man now denies ^ the right of revolution,' the right of an oppressed com- munity to free itself from its oppressor. The North does not deny that every state may, in a proper case, effect a revolution. It does deny that any state in the Union under the Constitution of the United States has a right to peaceably withdraw therefrom 118 WASHINGTON VERSUS JEFFERSON at its own pleasure ; and it denies that any state is now suffering or is likely to suffer any oppression or denial of rights by the national government, or to be willfully wronged by any sister state. To admit a right to peaceably secede is, as Washington in 1798 wrote to Lafayette, to make the Constitution a mere cipher — a nothing. Therefore the North must and will maintain, to the full extent of its power, obedience to that Constitution and the laws made pur- suant thereto by all the people, no matter in what state they reside, no matter what official position they hold. Nothing stands between any man (within any of the states) and that Constitution and those laws. The nation does not declare war against a state in order to enforce the nation's laws ; it addresses itself through its own officers to its own citizens or residents. If the latter re- sist in such numbers that peace officers can- not control them, the national forces must be used to compel obedience to law. Gov- ernor Pickens is as to national laws a simple citizen, bound to the same obedience as any John, Tom, or Harry. If the state authori- ties attempt to prevent the enforcement of a HOW CIVIL WAR TV AS PREVENTABLE 119 national law, they make themselves crimi- nal ; no state law can justify or shield them. Resistance by the state may produce a state of war because of the magnitude of that resistance, but such war is not de- clared or made by the nation. " This question of the maintenance of the Constitution and of the national govern- ment is one of principle and duty. The Anglo-Saxon race has always fought stur- dily to maintain its convictions about such questions. The Northern people are imainly of that race ; and what is called ' the right of secession ' can be established only by de- feating them by war. The Southern peo- ple are of the same race, and will fight sturdily for their convictions unless some means for averting war can be devised. If war shaU come it will be ' f oug-ht out ' in old Anglo-Saxon, Anglo-Norman style. It has usually required much time to convince either side that it was whipped for good and all. In their wars a great many peo- ple get hurt or killed. " Now for my suggestions : The South- ern people have a natural love of right, a high sense of honor, a liking for fair play. 120 WASHINGTON VERSUS JEFFERSON You are regarded by tliem as a leader. They know that you will never counsel them to dishonor. They believe in your bravery and truth. The present peril ex- ists because they are ignorant of the actual facts : ignorant of the real nature of what has been done since 1852, and ignorant of the objects and purposes of the Republican party and of Mr. Lincoln. " If this gallant people of the South can be convinced that the North and the Repub- lican party have simply striven to maintain the party pledges of 1852, to restore and maintain the legal position of slavery pre- cisely as it was under the laws in force in that year; that Mr. Lincoln in 1858 made his opinions as to the fugitive slave clause widely known at the North; and that he was nominated and elected with full know- ledge that he would maintain your consti- tutional rights under that clause, they will be freed from all apprehension of evil to the South ; they will gladly declare their willingness to resume the ' Quaker quiet ' of 1852-53 and to leave all laws as to sla- very in the territories precisely as they are. South Carolina has called a convention. It HOW CIVIL WAR WAS PREVENTABLE 121 will not do to await its meeting. Ask per- mission, forthwith, to address the South Carolina legislature upon ^ The Situation.' They will be glad to hear you. Tell them these truths in your own manly and elo- quent manner. Have your speech tele- graphed, and printed everywhere the next morning. Within three months the South- ern people (except the men who for many years have wished to break up the Union) will be hurrahing for Davis and the Union ! Within a year you will be the mostv pop- ular man from Passamaquoddy Bay to San Diego." Unfortunately no such interview between Senator Davis and " Common Sense " took place in the fall of 1860. WHY ELEVEN STATES SECEDED The South complained in 1860 that the North had refused to fulfill the constitu- tional duty imposed by paragraph 3 of sec- tion 2y article lY. of the Constitution known as " the fugitive slave clause." I will outline what was done^ between 1789 and 1861^ about fugitive slaves. Section 2, article TV., by its second clause provided that " a person charged in any state with treason^ felony, or other crime, who shall flee from justice, and be found in an- other state, shall, on demand of the exec- utive authority of the state from which he fled, be deHvered up to be removed to the state having jurisdiction of the crime." The third clause is the one heretofore quoted about fugitives " held to service or labor." In 1791 an indictment found in a Penn- sylvania court charged three men with a WHY ELEVEN STATES SECEDED 123 crime, under a statute of that state which punished kidnaping a person of color, and carrying him or her beyond the state, as a felony. The three men had gone to Vir- ginia. The executive of Pennsylvania had made demand, under said second clause, upon the Governor of Virginia for them as fugitives from justice. He submitted the case to the Attorney-General of Virginia, who was of opinion : - — 1. That the offense charged was not such a crime as under the Constitution req^uired a surrender ; and 2. " That control over the persons charged ought not to be acquired by any force not specified and delegated by positive law." So the demand was refused. The correspondence between the gover- nors, as well as the opinion of the Attorney- General of Virginia, with the other papers relating to the case, were transmitted to Pre- sident Washington, who laid them before Congress. This resulted in an act entitled " An act respecting fugitives from justice, and persons escaping from the service of their masters," which passed without oppo- sition and was approved by Washington 124 WASHINGTON VERSUS JEFFERSON on February 12^ 1793. This gave to tlie master a summary remedy under which he might either seize and remove to his own state his escaped slave, or cause the arrest and delivery to him of the fugitive by any of certain magistrates and their officers/ either national or state. This law was held constitutional by the whole court in Prigg v, Pennsylvania, 16 Howard, 539, at January Term 1842. A majority of the court held that under clause three of article IV. the nation alone was charged with providing the necessary legislation for the enforce- ment of that clause, and that it did not impose any duty upon the state except to place no obstruction in the way of such en- forcement. On the 18th of September, 1850, an act, drafted by Senator James M. Mason, of Vir- ginia, entitled " An act to amend," and sup- plementary to the act entitled " An act respecting fugitives from justice and per- sons escaping from the service of their masters, approved February twelfth, one thousand seven hundred and ninety three," was passed by Congress and approved by President Fillmore. This act very largely WHY ELEVEN STATES SECEDED 125 increased the number of national magistrates and officials authorized and required to act upon complaint of a master or his agent ; gave to each official power to call on citizens to act as his posse comitatus ; directed the officer to take the fugitive " forthwith " before the court ; and the magistrate " to hear and determine the case of such claim- ant in a summary manner/' upon deposition or affidavit in writing, or by other satisfac- tory testimony, and " icith proof also hy affidavit of the identity of the person w^ose service or labor is claimed to be due as aforesaid, that the person so arrested does in fact owe service or labor to the person or persons claiming him or her in the state or territory from which such fugitive may have escaped as aforesaid, and that said per- son escaped, to make out and deHver to such claimant, his or her agent or attorney, a certificate setting forth the substantial facts as to the service or labor due from such fugitive to the claimant, and of his or her escape from the state or territory in which such service or labor was due, to the state or territory in which he or she was arrested, with an authority to such claimant, or his 126 WASHINGTON VERSUS JEFFERSON or her agent or attorney, to use such reason- able force and restraint as may be necessary, under the circumstances of the case, to take and remove such fugitive person back to the state or territory whence he or she may have escaped as aforesaid. In no trial or hearing under this act shall the testimony of such alleged fugitive be admitted in evi- dence ; and the certificates in this and the fourth section mentioned, shall be conclu- sive of the right of the person or persons in whose favor granted, to remove such fugi- tive to the state or territory from which he escaped, and shall prevent all molestation of such person or persons by any process is- sued by any court, judge, magistrate or other person whatever." Said act punished heavily by fine and imprisonment every person who failed to do what it required of him, or obstructed or interfered with its execution. It was framed by Senator Mason with great care, and was supposed to fuUy provide everything re- quired of the nation under said clause three. The United States courts, including the Supreme Court, held this law constitutional. The supreme courts of all the states except WHY ELEVEN STATES SECEDED 127 Wisconsin held themselves bound by that ruling of the national Supreme Court. Where a subordinate state court held other- wise, the state supreme court (except that of Wisconsin) reversed the subordinate de- cision. The Wisconsin case was taken from the Supreme Court of that state by due course of proceeding, and the national Supreme Court reversed the judgment by which the state court had discharged a de- fendant who had been convicted of violating the above quoted Fugitive Slave Act,^and he was again taken into custody. See Aker- man v. Booth, 21 Howard, 526. The national authorities, from the Presi- dent down, were active and efficient in exe- cuting said law. In the few cases in which any body of the people attempted to mob those doing duty under the law, the vio- lence was promptly suppressed or prevented by detachments from the army or navy. The faithfulness and efficiency of the nation in its discharge of this constitutional duty was made evident by the census re- ports of 1850 and 1860. The total number of fugitive slaves re- ported in 1850 was 1011 -, the total number 128 WASHINGTON VERSUS JEFFERSON reported in 1860 was 803, a decrease of one fifth. The nation had no duty to discharge in the way of preventing the escape of a fugi- tive from the state in which he was held to service or labor ; its sole duty was to furnish by legislation proper means for effecting his return, and, by a sufficient number of offi- cers, due diligence in executing said law. In 1793 and 1850, Congress legislated as the senators and representatives of the slave- holding states desired it to do. I have never read or heard of any claim made by Southern congressmen that the Act of 1850 ought to be or could be amended so as to make it more efficient ; or that the national authorities and officials were careless, negli- gent, inefficient, or remiss in the execution of said law. But they did make accusations and com- plaints against the states. In 1842, the Supreme Court had decided that the Con- stitution did not impose any duty upon any state under the fugitive slave clause. Every officer and legislator of every state was a citizen of the United States and in- dividually indictable under the Act of 1850, WHY ELEVEN STATES SECEDED 129 if any act of his interfered with any magis- trate or officer in the execution of said law, or aided or abetted the escape of any fugi- tive. As abeady stated, no claim was ever made that the national officers and courts failed to do their duty under said law. The Southern complaints were based upon certain statutes of sundry Northern states commonly called " personal liberty bills." On December 11, 1860, " The National Intelligencer," the well-known conservative Whig daily newspaper, so long publishad at Washington city by Gales & Seaton, printed a careful analysis and review of aU North- ern personal liberty bills. I quote their conclusion : — " It will be seen from the review through which we have gone that veri/ feio states have enacted laws directly or avowedly in opposition to the Act of 1850. Laws against ' kidnaping,' properly so-called, cannot be placed in this category. Laws forbidding under this head the use of state jails for Federal purposes, however unfriendly in motive, are not unconstitutional, and find parallels in other cases and in Southern states. Laws forbidding states officers to 130 WASHINGTON VERSUS JEFFERSON issue writs for the recapture of alleged fugi- tives are passed in conformity with the decision of the Supreme Court of the United States in the celebrated Prigg case. But all laws interfering with the exercise of the powers conferred by Congress on the com- missioners appointed under the Fugitive Slave Law of 1850, as is the case with the laws of Vermont, Massachusetts, Michigan and Wisconsin, are clearly unconstitutional and are null and void." Let me briefly explain how the so-called " personal hberty bills " came into exist- ence. Under the terms of the " fugitive " clause of the Constitution the claimant of an escaped slave was entitled to a summary remedy. All summary remedies furnish am- ple facilities for fraud. It was charged and believed at the North, that under the acts of 1793 and 1850 free persons of color were sometimes arrested upon fraudulent papers, supported by perjured affidavits, " delivered up " to claimants to whom no service was due, and sold as slaves in the far South. The mode of proceeding was about thus : A, B, C, D, and E (bad men of both sec- tions) formed a secret partnership for the WHY ELEVEN STATES SECEDED 131 purpose of selling free negroes at New Or- leans or other far Southern markets. They secured on each venture the names and descriptions of several colored persons of suitable age, health, etc., who had recently removed to the localities in which they were then respectively employed. Then before Southern magistrates, who were ignorant of the fraud, two or three of the confederates would make the necessary affidavits, using said names and descriptions, and adding false statements as to former servitjide, escapes, etc., the confederates being named alternately as owner and claimant of an alleged fugitive, or as witness for the others. It was easy to thus obtain the formal certifi- cates, seals, etc., to authenticate their papers, and to appear before a commissioner in each locality with " sufficient testimony " to secure, after a " forthwith " and " summary " hearing, the document giving full power to convey the fugitive to " the state from which he fled." Such " fugitives," although so surrendered for return to Virginia or Ken- tucky, could be put upon steamers at Wheel- ing, Parkersburg, or Louisville, and sold at Memphis or New Orleans. This made it, 132 WASHINGTON VERSUS JEFFERSON generally, impossible for the person so sold to regain freedom. It was the duty of each state to protect its people from illegal and fraudulent seiz- ures. Each one had full right to make such frauds criminal ; to indict, arrest, and punish every person who could be proved guilty. While the state and its officers could not lawfully obstruct any national officer in the execution of any writ legally issued to him under national authority, or prevent the true owner of an escaped fugitive, or his duly authorized agent or attorney, from transporting the slave to the state in which the service or labor was due, it was the state's duty to arrest, prosecute, convict, and punish the perjurer and the kidnaper. As shown by the investigation of the " National Intelligencer," the great majority of the so- called '' personal liberty bills " were enacted for this perfectly constitutional purpose, or were passed pursuant to the rulings of the Supreme Court in Prigg v, Pennsylvania, heretofore cited. But many lawyers and others at the North believed that the Fugitive Slave Law of 1850 was in material particulars uncon- WHY ELEVEN STATES SECEDED 133 stitutional. Their opinions induced the legis- latures of Vermont, Massachusetts, Michigan, and Wisconsin to incorporate in their stat- utes against kidnaping, provisions intended to prevent the enforcement of those parts of the Fugitive Slave Law that they believed to be unconstitutional. As already stated, the Supreme Courts of those states (except that of Wisconsin in 1855) did not share these legislative opinions. They ruled in obedience to the Supreme Court of the United States. Even in Wisconsin no%fur- ther obstruction to the regular proceedings of the national ofi&cers, under the Act of 1850, was attempted after Akerman v. Booth, 21 Howard, 526, was decided at December term, 1858. In fact, before the Democratic conven- tion met at Charleston, in April, 1860, the Northern " personal liberty bills " which con- tained any unconstitutional provisions had become so much " waste paper." Unfortunately the South did not under- stand, in this matter, the habits of thought of the North. In South Carolina and Georgia ^' The State " was held in such preeminence that a statute of their state 134 WASHINGTON VERSUS JEFFERSON was deemed in full force although the Su- preme Court of the United States had unanimously decided it to be unconstitu- tional. It had also been their custom, when they deemed it probable that the national courts would adjudge one of their state statutes unconstitutional, to pass other stat- utes making it a criminal offense for any officer of their state court to furnish any transcript, certificate, or other paper in aid of the transfer on error of any case from the state court to the national court, and also making it a crime for any person, liti» gant or lawyer, to do any act for the pur- pose of aiding in or completing said trans- fer. South Carolina statute books, about 1832 and 1844, furnish notable instances of her legislation intended to prevent the United States courts from exercising the jurisdiction conferred upon them by the express words of section 2, article III. of the Constitution. In 1828 a Georgia court, in contempt of a unanimous judgment of the Supreme Court of the United States, which had reversed the Georgian sentence, as based upon an unconstitutional statute of Georgia, WHY ELEVEN STATES SECEDED 135 liano'ecl a Cherokee; and the same Georoia court sent to and kept in the state peniten- tiary a Presbyterian clergyman who had been convicted in the state court of exercis- ing, within the Cherokee part of that state, rights held by him under the Constitution of the United States, its laws and treaties, without ha^dno^ first obtained Georoia's con- sent thereto. The Supreme Court of the United States had unanimously decided that the Georgia statute under which said clergy- man was imprisoned, was unconstiti^tional, and reversed the state court's sentence. The state authorities paid no attention to either of said judgments of the highest national court, rendered in cases expressly placed by the Constitution within its juris- diction. Neither South Carohna nor Geor- gia ever repealed any of said unconstitu- tional state statutes hecmise of any national coiirfs judgment. The habits of thinking at the North permitted a belief that an act of Cong-ress was unconstitutional in whole or in part, permitted state legislation so worded as to prevent the execution of said supposed unconstitutional congressional leg- islation, but fully recognized the jurisdic- 136 WASHINGTON VERSUS JEFFERSON tion of the United States Supreme Court to finally hear and determine the constitutional question, and would not tolerate disobedi- ence to or disregard of its final judgment. Thus it happened that before the South had begun to use " personal liberty bills " at the North as material with which to feed the flames of secession, people at the North had become accustomed to regard all the unconstitutional features of those bills as null and void. As it was well known that no Southern state had altered or repealed a state statute in obedience to a judgment of the United States Supreme Court, Vermont, Massachu- setts, Michigan, and Wisconsin made no attempt to alter or repeal those features of their laws. They contented themselves with obedience to all national laws whose validity was either unquestioned, or which (having been questioned) had been af&rmed by the national Supreme Court. Several members of President Buchanan's cabinet believed in the right of secession, and wished their own states to secede. Some utterances of Attorney-General Black indicated his intention to urge that the WHY ELEVEN STATES SECEDED 137 President's messao^e should take strons: ground against secession. Therefore Sena- tor Jefferson Da\ds, then in Mississippi, was called by telegram to Washington. He was thoroughly versed in the Calhoun doctrine, and was heard by the President and cabi- net. He failed to convince Mr. Buchanan that any state had a constitutional right to secede, but he caused him to beheve that the main question presented was, "Has the general government a right to declare war against a state ? " That no such right was mentioned in the Constitution was plain. He then uro^ed that the national o^overu' ment could enforce its laws only through its peace officers ; that upon the secession of of a state all of its citizens holding office under the United States would resign, and no others would accept their places. This impressed Mr. Buchanan as demonstrating that, while no state had a right to secede, the national government had no power to prevent it. He therefore so stated in his message, when Congress met in 1860, and added that " A Union pinned together by bayonets was not desirable." In fact, the matter was simple and clear. 138 WASHINGTON VERSUS JEFFERSON No government " declares war " against its own citizens. When it learns that one of its laws is disobeyed and its enforcement prevented by any portion of the people, it calls upon them by proclamation to disperse to their homes and cease from illegal acts ; and notifies them that, if they fail to com- ply with the proclamation, the whole power of the government will be used against them. When establishing a national government it would be absurd to provide that it shall have power to declare war against any of its citizens. Madison understood this when he said, in the convention of 1787 (as I have hereinbefore quoted), " To use force against a state is more like a declaration of war than an infliction of punishment, and would be considered by the party attacked a disso- lution of all previous contracts. I therefore hope that a national system with full power to deal with individuals will he framed, and the resource he thus rendered wmeces- saryJ' The national government, having " power to deal with individuals " (it was immaterial whether those individuals were or were not WHY ELEVEN STA TES SECEDED 139 state governors, or members of state legis- latures), had full power to make every one of them obey its laws, and, when neces- sary, to use its military arm to compel that obedience. By January, 1861, Attorney- General Black (then Secretary of State) had perceived the fallacy of Senator Davis's arguments, and declared that the national government had full power to compel every citizen to obey the national laws, sapng, '^ When that is done, coercion is complete." When President Buchanan used th% words " A Union pinned together with bayonets is not desirable," he was in mental confusion as to the nature of our government ; he fan- cied it still under something like the old confederacy. To announce that the government would not use force to compel its citizens to obey its laws is to encourage the discontented and the unruly ; to deprive the law-abiding of protection ; to incite anarchy. When, after hearing Senator Davis, the President declared his disbelief in the right of seces- sion, he thereby asserted that, notwithstand- ing the passage by a state convention of an ordinance of secession, every citizen of said 140 WASHINGTON VERSUS JEFFERSON state would still be a citizen of the United States ; and that it would be not only the right but the duty of the United States gov- ernment to enforce as complete obedience to its laws within said state as within any other. Congress met on Monday, December 3, I860, amid general apprehension and excite- ment. By February 18, 1861, South Caro- lina, Georgia, and four of the Gulf States had seceded, and organized " The Confed- erate States " government, with its capital at Montgomery, Alabama. Texas seceded on March 1. During the winter many unsuccessful at- tempts were made to agree upon some terms that would recall the seceding states, and prevent others from going to them. Mean- while, as already stated, by votes of all par- ties in both houses of Congress, Dakota, Colorado, and Nevada were organized as territories under laws drafted by Senator Green, of Missouri. The entire national territory had then been so organized with- out any word prohibiting any slaveholder from taking his slave to whichever one he might select as his home. The Congress had also, by a two-thirds vote in each house, WHY ELEVEN STATES SECEDED 141 submitted to the states an amendment to the Constitution providing that no future amendment to that instrument should per- mit any national interference with slavery in any state. The invalidity of the unconstitutional parts of the Northern " personal liberty bills" had been recognized, and ever since 1858 the execution of the Fuo^itive Slave Law had not been interfered with. The census showed that the loss to the South in fugitives was in 1860 twenty per cent, less than in 1850. Mr. Lincoln had, on September 15, 1858, made public his opin- ion that every congressman was bound by his oath of ofB.ce to vote for all legisla- tion necessary to give full effect to every constitutional right; that the South had a constitutional right to an effective fugitive slave law ; that if additional legislation should be necessary to give that right full effect, he himself, if a congressman, would feel bound to vote for it, notwithstanding his opposition to slavery. His party, with full knowledge of these opinions of his, had nominated him and elected him, and had thereby indorsed them. The nation owned no territory in which 142 WASHINGTON VERSUS JEFFERSON it was at all probable that an application for admission as a slave state would ever be made. The census showed no slaves in any territory except 2 in Kansas, 15 in Nebraska, and 29 in Utah. No legislation against slavery was pending. The Repub- lican party was in a minority of 900,000 on the popular vote, and in both houses of Congress for 1861-63. These facts showed that slavery was in no danger. If the Re- publican party should wish to legislate against slavery, it would have to make a net gain of five senators and nine represen- tatives at the election of 1862. Inasmuch as, notwithstanding the division of the Democratic party in 1860, a change of only 19,000 votes, distributed in the states of California, Illinois, Indiana, New Jersey, and Oregon, would have prevented the election of Mr. Lincoln, it seemed evi- dent that in case there should be no seces- sion, the power of the Republican party would be limited to the possession of the presidency and vice-presidency until 1865, subject to the action of a Democratic Sen- ate upon all appointments to of&ce. The laws then in force had been voted WHY ELEVEN STATES SECEDED 143 for in both houses by a majority of the Southern congressmen, and of Democrats. As the Cono^ress of 1861-63 would be De- mocratic, unless there should be secession, those laws would remain in force unless a Democratic Congress should change them and a Republican President agree thereto. All appropriations to be made by that Con- gress must suit the Democratic party and a Repubhcan President. This was the situation when the Civil War began. ^ Why, then, did any slave state secede ? The correspondence between Southern governors, invited by Governor Gist, of South Carolina, early in October, 1860, and the resolutions of such legislatures as took any action upon the situation prior to the election of November 6, 1860, all made the taking of any step towards secession de- pendent upon the result of that election ; if either Breckinridge, Douglas, or Bell should be chosen, no such step would be taken ; if Mr. Lincoln should be elected, action was to follow. Logic therefore decides that the seven states seceded because Abraham Lin- coln was chosen President. 144 WASHINGTON VERSUS JEFFERSON When our fathers in 1776 declared our independence of Great Britain^ they stated why they did so. That great instrument enumerates a long list of oppressive acts covering many years. No declaration or resolution of any seceding state names even one wrongful or oppressive act done to any state by the national government. Even if the " personal liberty bills " were being enforced by state authority^ the South knew that, whenever called upon, the United States of&cials effectively executed the Fugitive Slave Law, and the national Supreme Court deprived the unconstitutional features of those state laws of all force. The South also knew that by secession it would forever abandon the right to recover all unreturned fugitives that had theretofore or might thereafter escape to any Northern state. So secession could be no remedy for " personal liberty bills ; " it would greatly add to Southern losses. It is true the Democratic National Con- vention had refused to declare in favor of a congressional slave code, and it was well known that no such code would be enacted. But the correspondence of governors and WHY ELEVEN STATES SECEDED 145 the action of Southern legislatures, before referred to, show that in case Mr. Lincoln had been defeated the failure to secure a slave code would not have caused any seces- sion. They were conscious that it would be absurd to secede because of the denial of such a demand, — a demand first made sev- enty years after the Constitution was rati- fied and six years after the South, by its own votes in Congress, had declared that " non-intervention " by Congress witlg slav- ery in the territories was to be the govern- ing " principle " for the future. The state secession conventions urged as one reason for secession the anti-slavery sentiment of the North. The ofreat mass of the Republican party thought about slavery just as the majority of the convention of 1787 did, as large numbers of Southern statesmen had done, as almost the whole of Christendom did ; but they had no intent to interfere with slavery in the states, and in the territories they wished only to restore the situation of 1852, which the South had then declared to be entirely satisfactory to it. 146 WASHINGTON VERSUS JEFFERSON A careful comparison of the secession lists of grievances with the declaration that made memorable the Fourth of July, 1776, will satisfy a candid mind that no Southern state had any cause for secession that justi- fied an attempt to break up a great gov- ernment^ and to dissolve the constitutional union brought about by Washington. How trivial the matters urged in support of the attempts of 1860 and 1861 appear when read with those on which the great declara- tion was based ! The following will show how carelessly those hastening into secession examined their supposed grievances. The South Car- olina convention named " tariff legisla- tion " as one of their " oppressions." A legal friend of mine in New Orleans wrote me, early in 1861, in support of Louisiana's secession, and named the tariff as one of her " oppressions." An examination of the " yeas and nays " showed that a majority of the South Carolina congressmen voted for all the tariff laws except those that were in force from 1791 to 1792, from 1824 to 1833, and from 1842 to 1846. So her oppression from tariff had ceased fourteen WHY ELEVEN STATES SECEDED 147 years before she seceded. A majority of Louisiana congressmen had voted for all the tariffs after her admission except those in force from 1816 to 1833. So her oppres- sion had ceased twenty-seven years before she seceded. That there existed no griev- ance that could justify secession or revolu- tion by any slave state was made evident by the votes taken in those states within the year after November 1, 1860. On November 6 Delaware had given al- most one fourth of her vote to Mr. Lkicoln, and had elected a congressman by the joint vote of the supporters of Mr. Lincoln and Mr. Bell, who were almost precisely equal in numbers. This congressman voted with the RepubHcans. Maryland, in 1861, elected Union con- gressmen in every district but two. Kentucky, on June 20, 1861, elected Union congressmen in every district but one, and on August 5 chose a legislature in which the Union men were more than two thirds of each house. Until September of that year, no part of the Union army had entered Kentucky. Missouri, in February, 1861, had chosen 148 WASHINGTON VERSUS JEFFERSON a " Sovereign Convention/' as it was called, in which the Union men outnumbered the secessionists by more than two to one. Virginia also elected a convention in which the Union men very largely outnum- bered the secessionists. North Carohna at first voted by several thousand majority not to have its conven- tion meet at all. Tennessee voted by a large majority that no convention should meet. Arkansas elected a convention containing a majority of Union men. It met, was of opinion that no ordinance of secession should then be passed, and adjourned to await future occurrences. Thus eight of the fifteen slave states, whose population was 5,417,586 white and 1,852,135 colored, did not think secession justifiable because of anything that had transpired prior to April 15, 1861. The seven seceded states contained only 2,618,- 613 whites and 2,349,163 colored. South Carolina, which " forced the hands " of all the others, and so used their belief in her right to secede as to compel them to follow, contained only 291,300 whites, considerably WHY ELEVEN STATES SECEDED 149 less than one half of the number of the soldiers who before 1865 had died in battle, or of wounds or disease in the war. The managers of the secession movement beheved that if a conference of South Caro- lina and the Gulf States should be held it would result in a postponement of secession. In this they were correct. In such a con- ference the real facts of the situation could be made to appear, and prudent and wise judgment would perceive the folly of seces- sion. They therefore pressed for "sej/arate state action ; " continued to make the ex- citable still more excited by asserting that delay would be dangerous, that no true Southern man could submit to live for one day as a citizen whose President was "a Black Republican." Their plans were greatly aided by the fact that for many years a large number of the people of South Carolina had been very anxious to go out of the Union. So South Carolina led the way on December 20, 1860, and the Gulf States and Georgia followed at short intervals. In early April, President Lincoln made known to Governor Pickens and General 150 WASHINGTON VERSUS JEFFERSON Beauregard his intention to send provisions to a national garrison in a national fort ; they communicated this to the Montgomery government. Under its orders the General began to bombard Fort Sumter. By April 14, 1861, the result was known at Washing- ton, and the national executive proceeded to attempt the performance of his duty " to execute the laws," and issued the proclama- tion of April 15, calling out 75,000 three- months volunteers. These facts presented to the four states — Virginia, North Carolina, Tennessee, and Arkansas — a very different question from the one upon which the seven states had seceded. Kentucky and Virginia had adopted as their creed the resolutions of 1798-99. In 1803 Judge Tucker, in the appendix to his edition of Blackstone's Commentaries, had restated that creed thus : — " The Federal government then appears to be the organ through which the United republics communicate with foreign na- tions and with each other. Their submis- sion to its operation is voluntary ; its coun- cils, its engagements, its authority are theirs WHY ELEVEN STATES SECEDED 151 modified and united. Its sovereignty is an emanation from theirs, not a flame in which they have been consumed, nor a vortex in which they have been swallowed up. Each is still a perfect state, still sovereign, still independent, and still capable, should the occasion require, to resume the exercise of its functions, in the most unlimited ex- tent." This is the doctrine of which Washino^ton wrote, " The Constitution, according to their interpretation of it, would be a ciphei^" and that measures under this doctrine, if ^'sys- tematically and pertinaciously pursued, must eventually dissolve the Union or produce coercion." When Tucker's Blackstone appeared, Washington and Henry were dead, and Jefferson was President ; Chief Justice Mar- shall and the Supreme Court did not make the first of the decisions I have cited until 1816, and by that time it had become an article of the Southern creed that that court had no jurisdiction of such questions. Law students at the South studied Tuck- er's Blackstone. The roads to political pre- ferment were in the hands of JefEerson. 152 WASHINGTON VERSUS JEFFERSON Here and there practical-minded, independ- ent thinkers concurred with Washington, Henry, and John Marshall ; but the mass of Southern people lived and died full of faith in the Jefferson-Tucker creed. Therefore, in 1861, the great majority of the people in said four states firmly believed that each state that had seceded had done an act which it of right might do ; that the general government had no right to force its people to submit to the national laws; and that it would be wrong for either of the four states to aid in the use of force for that purpose. When each governor telegraphed to Pres- ident Lincoln a refusal to furnish the regi- ments called for by the proclamation, that governor supposed that he was refusing to do an unlawful act. He acted upon his convictions of duty in like manner as the President acted upon his convictions. Each was resolved to do that which, as he under- stood constitutions and laws, his oath of office bound him to do. Because of like convictions the majorities in the conven- tions of Virginia, North Carolina, and Ar- kansas, and of the voters in Tennessee, WHY ELEVEN STATES SECEDED 153 decided that, as war had come, and fighting had to be done, they would fight to main- tain the right of separate state secession, in which they felt bound to beheve. Thus the four states sacrificed themselves without, as the end proved, saving those for whom the sacrifice was offered. A candid mind, reflecting upon the facts, cannot help feeling surprise and astonish- ment because an intelligent people, whose leaders were able and experienced men, at- tempted, for reasons so plainly insuf^cient, to break up a great free government and in- curred the perils of war. Their action may be accounted for by the following state- ment : — The schemers who devised the plan, which began by inducing Alabama to instruct her deleo^ates to withdraw from the Charles- ton convention if it should refuse to make a congressional slave code a party dogma, expected that its ending would be the for- mation of a new confederacy embracing all the states except the six known as New England. They did not anticipate any " war for the Union." If they had not felt confident that every step would be a 154 WASHINGTON VERSUS JEFFERSON peaceful one they would not have disturbed the harmony at Charleston. These schem- ers included experienced politicians from the North as well as from the South. Their scheme was ingenious and seemed likely to succeed. Its steps were to be : A division of the Democracy at Charleston ; the elec- tion of a Republican ; separate secession immediately thereafter by South Carolina, followed by Gulf States in single file ; Presi- dent Buchanan to be argued into a non- resisting attitude; newspapers at the North and Northern congressmen to assert the wrongfulness of coercion ; the Congress that would end with March 3 to be so managed that no coercive legislation should be attempted by it ; a Confederate govern- ment in the seceded states to be in working order before the inauguration of the new president at Washington ; the border slave states to act as buffers between the North and the new Confederacy. The Democratic party at the North was expected to maintain an attitude condemning coercion and con- forming to the doctrine of Mr. Buchanan's expected message. As the Republican ma- jorities in many of the states were not ex- WHY ELEVEN STATES SECEDED 155 pected to be very large, and their strength in the new Congress not greatly in excess of the Democracy, the new administration, supported only by the Repubhcan party, would feel unequal to a war against the united South. The schemers believed that before midsummer it would recognize the independence of the Confederate States. That being done, the remaining slave states would one by one abandon the old Union and enter the new. Illinois and Indiana, loath to have a foreign power in control of the lower Mississippi and in possession of the opposite banks of the Ohio and of the upper Mississippi, and influenced by the large infusion of Southern blood in their own population, would first of the free states ask admission into the Southern Union. A glance at a map will teU how probable (in case the plan should be suc- cessful to this point) would be like action by California and Oregon, each of which gave to Breckinridge and Bell many more votes than it did to Lincoln. It was sup- posed that New Jersey and Pennsylvania, which had been Democratic steadily until 1860, would follow suit. Then the situa- 156 WASHINGTON VERSUS JEFFERSON tion of New York, Ohio, Michigan, Wiscon- sin, Iowa, and Minnesota would reinforce their democracies in their efforts to rejoin their brethren in a government which, in the absence of the six Yankee disturbers, would become a Democratic heaven. A careful reading of the newspapers of 1860-61 (which reported debates in the con- vention at Montgomery during the framing of its Constitution), and some letters from Northern poHticians found by our army in Mississippi, satisfy me that the plan was about as I have outlined it. A prominent Ohio newspaper (which did not survive the war) in March, 1861, published the Confed- erate Constitution, with editorial comments pointing out its beauties as compared with that of 1787, and arguing that the inter- ests of Ohio, Indiana, and Illinois were with the South. In March, 1861, I greatly feared that this plan would be entirely suc- cessful. But the schemers, as mere politicians are apt to do, did not at all consider "the plain people." In 1854 the rising of " the plain people " of the North in anger be- cause of the repeal of " The Compromise of WHY ELEVEN STATES SECEDED 157 1820 " ought to have warned them. Much as "the plain people" in their hearts prized that old law, which in their belief had made sure for free labor and free men 900,000 square miles, their affection for it was weak- ness itself when compared with their devo- tion to that Union which had been cemented by the blood of their Revolutionary sires, and to the Constitution that was the best loved work of Washington. The firing on Sumter kindled in this peo- ple a blaze of patriotic wrath which burned up party and partisan feeling, roused the dormant love of country in all but case- hardened political managers, and for a time forced even those tough customers into quietude. Thus it came to pass that in April, 1861, the seceders beheld a nation rushing to arms to defend the Constitution, preserve the Union, and execute its laws. VI SECESSION AND THE ARMY Immediately after passing an ordinance of secession, the Virginia convention voted a call upon all army officers, citizens of that state, to resign their commissions in the national service and enter that of the state. Like appeals were made by the other seced- ing states. A little more than two thirds of those so called obeyed. In 1861 almost the whole of the Northern people regarded this obedience to the state as treason to the nation, accompanied by perjury. Time and information have satisfied great numbers that such an opinion was terribly unjust. Many of the officers who resigned the blue and donned the gray were men most scru- pulously honorable, devoted to duty, inca- pable of bad faith. Some of them surren- dered high position and assured promotion. Robert E. Lee had been made to know that he could stand next to Lieutenant-Gen- SECESSION AND THE ARMY 159 eral Scott, and succeed him as commander- in-chief. Joseph E. Johnston was quarter- master-general, holding a hf e position with a good salary, and a home in Washingi:on. They both abandoned present rank and pay and future promotion, and were on duty in Eichmond within ten days. While I was a captain in the 18th United States Infantry, a brother of&cer told me of Joe Johnston's departure from Washington. In April, 1861, my informant resided next door to the general. Being a young man ^ with many Southern friends, he accepted an invi- tation to a midday dinner at Alexandria. He soon learned that the object of the gathering was to induce guests to take com- missions from the Confederate States. Leav- ing the table, he returned to Washington alone and on foot. Midway he met General Johnston and family in a carriage. All stopped, and " Old Joe " told his young friend and neighbor of his resignation, and that he and his family were then en route for Richmond. The general could not con- trol his emotion. He shed tears as he spoke of the reo^ret with which he left " the old service." 160 WASHINGTON VERSUS JEFFERSON I have already described how the South had been trained in the Jefferson-Tucker- / Calhoun doctrine. Lee, as his letter to his son indicated, did not believe that a state had a constitutional right to secede. In his opinion the act of secession was " revolu- tion." But he did beheve that his para- mount allegiance was due to Virginia ; that her act of secession, although revolutionary, bound all Virginians and ended their con- nection with and duties to the national gov- ernment. This opinion was concurred in by many of the Southern officers ; and those who held it also held that to remain in the United States army would be treason to their state. Almost one third of the Southern officers remained faithful to the Constitution and the Union. This was no easy duty. It severed social and family ties. The loyal officer had to bear abuse and reproach from his kinsfolk, from the friends of his boy- hood, from aU in authority in his native state. He knew that he must fight against his own people, in many cases against his own brother ; in some instances a son against a father. Like instances occurred among the naval officers. SECESSION AND THE ARMY 161 A Confederate who served on the staff of Admiral Buchanan when the Virginia, known to us as the Merrimac, sank the Cum- berland and burned the Congress, told me that five of the officers on the Virginia had near kinsmen in the Union service, himself being a relative of Lieutenant Morris of the Cumberland ; the father of one of the five and a brother of another were in the Union service. High in command in Dupont's fleet bombarding Hilton Head was Percival Drayton, of South Carolina, whose b^pther Thomas, as brigadier-general, commanded the forts on shore. When naval Lieutenant Lea was killed on our Harriet Lane in Galveston harbor in January, 1863, his father, as a Confederate major, was in the attack upon the Union garrison in the city. The ven- erable John J. Crittenden, of Kentucky, had a son serving as a major-general in each army. At the battle of Atlanta one son of that most earnest Unionist, the Rev. Dr. Robert J. Breckinridge, as a Union colonel, became the prisoner of his own brother, a Confederate cavalry brigade commander. A number of officers born and reared at the North, while stationed at the South on 162 WASHINGTON VERSUS JEFFERSON duty, had married or established homes there. When war came, they were unwill- ing to fight against their new kinsfolk and neighbors, and therefore resigned, and took Confederate commissions. Roswell S. Rip- ley, an Ohioan, superintended the construc- tion of the first works around Sumter. William H. Chase, a Massachusetts West Pointer, and Ebenezer Farrand, a Pennsyl- vanian naval officer, jointly made the first demand upon Lieutenant Slemmer for the surrender of Fort Pickens. Walter H. Ste- vens, a New Yorker, laid out the fortified lines for the defense of Richmond, and was chief engineer of the army of Northern Virginia throughout the war. Martin L. Smith, another New Yorker, laid out the first fortified lines for the defense of Vicks- burg, and became a major-general. Wil- liam Steele, another New Yorker, was second in command to Sibley in his invasion of New Mexico, and succeeded to the chief command. J. K. Duncan, a Pennsylvanian born and Ohio bred, surrendered Forts St. Philip and Jackson after Farragut's fleet had gone up to New Orleans. J. C. Pem- berton, another Pennsylvanian, surrendered SECESSION AND THE ARMY 163 Vicksburg. Bushrod Johnson, an Ohioan, was second in command to Buckner when he surrendered Fort Donnelson, and was a very persistent Confederate major-general until April, 1865. Franklin Gardner, a gen- eral born in New York and a cadet from Iowa, surrendered Port Hudson. S. G. French, a New Jersey man, failed to take Allatoona from our General Corse. Daniel Kuggles, a Massachusetts born brigadier- general, commanded at Fredericksburg in 1861, and later in Mississippi. Francis A. Shoup, an Indianian, was a noted general of artillery in the Confederate army of Tennes- see. Danville Leadbetter, a Maine West Pointer, laid out the fortified Hues for Chat- tanooga, Knoxville, and Mobile in 1861-62. D. M. Frost, a New Yorker, surrendered Camp Jackson to our General Lyon. George G. Garner, another New Yorker, was Gen- eral Bragg's confidential staff officer. Most notable of all, Samuel Cooper, a New Yorker born and bred, married to a Virginia Ma- son, issued orders, as our adjutant-general, from Washington to Anderson for the de- fense of Sumter until in early March, 1861, and in later March and April, issued from 164 WASHINGTON VERSUS JEFFERSON Montgomery the orders that caused Beau- regard to bombard that fort. This New Yorker served throughout the war as the senior general of the Confederate army, and did duty as its adjutant and inspector-gen- eral. The following list shows the number of army officers from each of the eleven seced- ing states who in 1861 remained in the na- tional service, and the number who entered the Confederate service : — Union. Confederate. Virginia 47 81 North Carolina .... 8 24 South Carolina .... 6 28 Georgia 3 24 Florida 4 6 Alabama 2 15 Mississippi 2 11 Louisiana 3 4 Texas 3 6 Arkansas 1 5 Tennessee 7 18 86 222 To the rank and file of the Union army the eleven seceded states contributed 86,205 white troops and 93,441 colored soldiers; SECESSION AND THE ARMY 165 the Indian Territory, 3530 Indian soldiers. Add to these the 260,327 white troops fur- nished by Delaware, Maryland, the District of Columbia, Kentucky, and Missouri, and we find that in the war for the Union, which necessarily ended slavery, the slave- holding portion of the United States fur- nished 346,532 white and 96,971 colored Union soldiers, aggregating 443,503. The four states, Virginia, North Carohna, Tennessee, and Arkansas, whose governors refused to furnish a man under the^rst call for 75,000 three months' volunteers, added to the national armies 74,605 white soldiers, the most of them for " three years or during the war ; " almost as many as the entire call of April 15, 1861. The North should always remember that the South contributed Farragut, Dupont, Goldsborough, Drayton, Winslow, Fairfax, and many others, able, gallant, and merito- rious of&cers, to the Union navy, and to the Union army, Scott, George H. Thomas, Ord, Newton, Emory, Philip St. George Cooke, Eobert Anderson, Hunter, Gibbon, Getty, Pleasonton, Torbert, Wood, Rosseau, and many others, able, gallant, and meritorious. 166 WASHINGTON VERSUS JEFFERSON The South, for two reasons, ought to be resigned to their defeat in the war. First, the victory was not won by " the Yankees " alone. Second, to hold the field for four years against an entire North, full of men and resources, aided by about 350,000 Southern white troops, was indisputable evi- dence of their own courage, endurance, and ability as soldiers. Yielding to such odds brought no dishonor. Moreover the nation had another immense advantage over the Confederacy : its President and commander- in-chief, Abraham Lincoln, in addition to very great executive abihty, was common- sense personified. vn WAR AND RECONSTRUCTION I HAVE followed the parties into the court of war. The purpose of my book does not include a report of the " trial " that began at Sumter and practically ended at Appo- mattox. But we cannot understan(^ the " reconstruction " that followed unless we first gain a knowledge of the " Rules of Practice " in the court of war, the laws that are therein appHed, and the nature of the judgments rendered by that court. The court of war is a tribunal of the last resort. While war is usually termed " cruel/' the laws of civihzed warfare, as recognized by Christendom, have among their main objects the saving of life, health, property, and ex- pense by making the war as short as possi- ble. To illustrate : A garrison which upon demand made by a sufficient force refuses to surrender an indefensible position, and is then taken by storm, is liable to be put to 168 WASHINGTON VERSUS JEFFERSON the sword. By their refusal they compel the attacking party to suffer loss by death and wounds in capturing an indefensible post. Cromwell applied this law at Drog- heda. Two thousand men were put to the sword. A study of the remainder of his Irish campaigns justifies a belief that the lives of at least ten thousand Englishmen were saved because the example of Drog- heda caused the prompt surrender of all similarly placed garrisons. This principle of " saving " has given to the victor who completely subdues his foe the right to decide the limits of the '^ indem- nity for the past and security for the future" which he will require from his vanquished foe. The terrible nature of war, its im- mense expense, the losses in life, health, and property, all join in enforcing in favor of the successful party everything necessary to make another war with the defeated party improbable. So it has come to pass that when once a war is " on " between two belligerents, each has assumed the risk of losing all, each has a chance to gain all. If the war shall end by treaty, that will define their subsequent relations; but if it shall W^AR AND RECONSTRUCTION 169 end by the complete defeat of one, the other capturing its armies and resources, those relations will be such as the victor shall de- termine. The victor is expected to use this power in accordance with the principles of modern Christian civilization. On the 19th day of April, 1861, President Lincoln proclaimed a blockade of all ports in the seceded states. This, in legal effect, recoofnized the Confederate States as a bel- ngerent. Translated into ordinary language, it said : "I cannot and do not recognize you as an independent nation or govern- ment ; I do agree that you are carrying on a war ; and that so long as that war shall continue I will treat your forces and people as I would treat the forces and people of any other nation at war with me; what your position and rights shall be after the war shall end must be controlled by the nature of that ending." Early in August, 1861, Congress, by al- most unanimous votes in both House and Senate, adopted a resolution drafted by the venerable John J. Crittenden, of Kentucky, reading : " That the present deplorable civil war has been forced upon the country by 170 WASHINGTON VERSUS JEFFERSON the disunionists of the Southern States^ now in arms against the constitutional govern- ment, and in arms around the Capital ; that in this national emergency Congress, ban- ishing all feelings of mere passion or resent- ment, will recollect only its duty to the whole country ; that this war is not waged on their part in any spirit of oppression, or for any purpose of conquest or subjugation, or purpose of overthrowing or interfering with the rights or established institutions of those states, but to defend and maintain the supremacy of the Constitution and to preserve the Union, with all the dignity and equality and rights of the several states unimpaired ; and that as soon as these ob- jects are accomplished the war ought to cease." This resolution stated the purpose for which the national troops had been put in the field, and the object the national government wished to accomplish. Its pas- sage gave to those resisting the laws an opportunity to lay down their arms, and preserve in full the rights of their several states. In case they did not within a rea- sonable time accept the offer, in case they continued to resist, said resolution did not WAR AND RECONSTRUCTION 171 give to them or to their states any claim upon the nation ; and it placed no incum- brance or limitation upon the rights which the result of the war mio^ht vest in the na- tion. If the fighting was to go on, the na- tion had full right to have both hands free ; and to use every right and power given by the laws of war. The Constitution had given to Congress " the right to declare war.'' This included the right to accept and wage war when be- gun by another belligerent. The Constitu- tion also gave to Congress power " to raise and support armies ; " " to provide and maintain a navy ; to make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the government of the United States, or in any department thereof." It made the President " commander-in-chief of the army and navy of the United States and of the militia of the several states when called into the actual service of the United States ; " and ordered that " he shall take care that the laws be faithfully executed." The power granted to wage war included 172 WASHINGTON VERSUS JEFFERSON full power to conduct it according to the laws of war, because the grant was not ac- companied by any limiting words. While the recognition of the Confederates as bel- hgerents gave them some advantages, it deprived them of others. Fob- example : from that moment none of them, during the war, was entitled to anything whatever as a constitutional right. From that moment they were all pubHc enemies so long as the war should continue. The laws of war give to each belligerent the right to cripple the enemy by the cap- ture of his forts, positions, towns, cities, and forces ; to capture or destroy his means of feeding, clothing, equipping, arming, and transporting his soldiers, and of construct- ing fortifications and the like. If that enemy's people own slaves, whom they may employ in raising crops, transporting sup- plies and munitions, building fortifications and the like, the other belligerent may take them from him by capture, or by inducing them to leave him. Some lawyers, finding no grant in the Constitution of power to free any slave, condemned President Lincoln's Proclama- WAR AND RECONSTRUCTION 173 tion of Emancipation as an illegal, unau- thorized, unconstitutional act, and supposed they had " clinched their argument " when they added, "the Constitution remains the same in war as in peace." It is true the Constitution remained the same; but powers granted by it for use in war cannot be used until war is going on. Under the appHcation of the principle above stated, our commander-in-chief had full right to cause the slaves of our " belhgerent enemies" to leave their service by capture or offer of reward. He offered freedom. The offer was good, subject to the result of the war. As the nation triumphed, each slave who had accepted and acted on it was free for good and all. If the nation had been defeated, the masters might have re- claimed their slaves. So also some question was raised about the suspension of the writ of habeas corpus. The Constitution provided, " The privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion the pubhc safety may require it." When the war began, no act of Con- gress then in force defined by whom, when, 174 WASHINGTON VERSUS JEFFERSON or under what circumstances, or for what time, the writ might be suspended. The Constitution did not say anything about it except in the words just quoted. It so hap- pened that we could look for precedents only in English history. No written consti- tution existed there. Magna carta of King John's day, and the Habeas Corpus Act of Charles the Second were both statutes. James the Second arbitrarily made arrests suspending, or, as he named it, " dispensing with " the act. To prevent such arbitrary exercise of royal prerogative (from the time of WiUiam the Third), Parliament has regu- lated this matter by its own Acts. This fact, and the placing of the clause in section 9 (which is devoted to limitations of the powers of Congress), justify the conclusion that it was intended that Congress should regulate the suspension of the writ, and that therefore Congress might at any time make a law for that purpose. But the Constitu- tion unequivocally recognizes that a neces- sity for the suspension of the writ may occur "in cases of rebellion or invasion." Because Congress has failed to exercise its power to define when and how the suspen- WAR AND RECONSTRUCTION 175 sion shall be made, must the President, whose oath pledged him " to preserve, pro- tect, and defend the Constitution of the United States to the best of his abiHty," allow that Constitution to be endangered or destroyed when the suspension of the great writ will avert the peril ? In England a king could not be im- peached for his improper suspension of the writ and arbitrary arrests. As kings had often made arbitrary and unnecessary arrests. Parliament prohibited any suspension M the writ not authorized by it. Our Constitution did not so word its prohibition ; it did not insert the words " except by Congress." Our President is impeachable. A construc- tion that Congress may at any time regulate by statute the suspension of the writ, but until it shall have so legislated, the Presi- dent, in the discharge of his high duty, may, " in cases of rebellion or invasion," suspend the writ if " the public safety requires it," will make the Constitution effective, without endangering liberty. The President will be restrained, by his liability to impeachment, as well as by his oath and conscience, from an improper exercise of this great power ; 176 WASHINGTON VERSUS JEFFERSON and the representatives of the people, in Congress assembled, can at any time put their will into a law which he must obey. President Lincoln reported to Congress, as soon as it had organized, his suspension of the writ and his reasons therefor. The House, by a yea and nay vote of 108 to 26, on December 10, 1861, laid upon the table a resolution declaring that his action was a usurpation, and ordering a release of certain persons then under arrest by his order. This was practically an adoption of the con- struction I have just quoted. If President Johnson, as commander-in- chief of the national forces, had ratified and approved the miHtary convention agreed upon by Generals Sherman and Johnston on April 18, 1865, that instrument would have controlled the subsequent relations be- tween the seceding states and their people and the nation. He disapproved that con- vention. The nation, as victor by force of arms, gained possession of all the armies and resources of the Confederate govern- ment, and, under the laws of war, held power to R^ and determine those relations, limited only by the stipulation in the terms WAR AND RECONSTRUCTION 111 of surrender ; to wit, that no officer or man who went to his home, and obeyed the laws there in force, and did no hostile act against the United States, should be disturbed ; and by the national Constitution. Under the power thus vested in Congress by the laws of war, it could, without any violation of the Constitution, decide that the land within the limits of the eleven states was " territory of the United States." For that territory it could make "all needful rules and regulations," in like manner as it had done for other territory from 1789 to 1861. As already stated, the moment the said seceding states became belligerent, and were so acknowledged by the nation, none of said states had any " constitutional " rights as against the nation. As against the nation none of its belligerent enemies could have any rights, after the end of the war, except those made good by their armies, and established by treaty or military con- vention, and those which under the Consti- tution belonged to every person resident upon territory belonging to the nation. As no treaty or military convention (except the unratified Sherman- Johnston) recognized the 178 WASHINGTON VERSUS JEFFERSON continued existence of any state organization in any seceding state, no such organization could of right claim further existence. The nation, if it chose, could consent to such further existence of each of said states. While any Confederate army re- mained in the field, President Johnson, as commander-in-chief, by convention fixing the terms on which that army would surren- der, might have stipulated the terms upon which each of the eleven states might con- tinue to be a state in the Union. Such a convention was within his power under the laws of war and the Constitution. While a Confederate army was in the field, the Presi- dent could by proclamation name the terms upon which he would accept its surrender (giving no rights contrary to the Constitu- tion) ; and if the enemy accepted said terms, and laid down their arms, his act as com- mander-in-chief would bind the nation. But after every Confederate army had laid down its arms, and no enemy was in the field with whom a miHtary convention could be made, or to whom a proclamation could be addressed. President Johnson could not by his single act bind the nation. WAR AND RECONSTRUCTION 179 Under the laws of war, our commander- in-chief was charged with the duty of main- taining order in the territory taken by our arms until Congress should meet and legis- late therefor. So President Johnson's pro- visional governors were lawfully appointed by him, and with his approval each of them might have continued to act as a governor until a law of Congress directed otherwise. President Lincoln had, by proclamation, offered terms at divers times, notably on December 8, 1863. In the proclamati(^ of that day he was careful to state that the power to determine as to the admission of any state to representation in Congress be- longed to that body, and therefore the terms offered by him could not give a right to said representation. When the great Presi- dent died by the bullet of an assassin, three Confederate armies, commanded respectively by Johnston, Kirby Smith, and Taylor, were still in the field. But when President John- sou, on May 29, 1865, by proclamation of that date, stated terms for the reconstruc- tion of North Carolina, all Confederate armies and detached bodies of troops had surrendered; all fortifications, supplies, and 180 WASHINGTON VERSUS JEFFERSON munitions of war were in possession of the national forces. Active war had ended. This great fact left in the President, as com- mander-in-chief, no power as to the territory and people of the eleven states except those necessary for the preservation of order therein until national legislation should de- termine the status of that territory, and the position and rights of its inhabitants. Of course as President he had power to pardon all acts of their inhabitants, and thereby relieve each one of them from prosecution in any national court under any national criminal law. The situation was unique. Few, if any, had sufficiently studied the laws of war to then fully understand the position. A few at the North claimed that the eleven states had been conquered by the nation, and that Congress could organize, within the land south of the Potomac and of the south lines of Kentucky and Missouri, territories or states with such boundaries as it might determine ; but although their claim was sound, they did not so state its foundations as to convince a majority at the North, or any considerable number at the South. WAR AND RECONSTRUCTION 181 They did not base their claim upon the fact that the state organizations of the eleven states had so engaged in war against the nation as to be rightly acknowledged as " belligerent," and had thereby " wagered " their state's political existence upon the result of that war : they treated the passage of ordinances of secession as forming a part of their claim's foundation. As those ordi- nances were null and void (according to the national theory), their opponents naturally urged that the doing of a null and void act, which no statute made criminal, could not destroy a state's rights. A few at the South, like Lieutenant-General Longstreet, under- stood that the questions on which the South had differed with the nation had been sub- mitted to " trial by battle ; " that judgment had gone against the South, and under it, the nation (represented by Congress and the President — two thirds of both houses hav- ing power to override a veto) held full right to name the terms upon which the de- feated people could regain poHtical rights ; but they were looked upon as " traitors to the South," and could not aid its people with their wise counsel. 182 WASHINGTON VERSUS JEFFERSON The Democratic party at the North and many conservative Republicans believed that each state, upon full compliance with the President's terms, became entitled to full representation in Congress. The President in many ways made public his opinion that both Senate and House were bound to admit members from those states who presented certificates in due form showing their elec- tion, and who could and would take the oath of office. Many people of all sections, professions, occupations, and parties — wholly or almost wholly ignorant of the laws of war and their effect upon the rights of victor and vanquished — were in grave doubt as to the question presented by " Reconstruction." The Southern people very naturally con- curred in the views held by the President, the Democratic party, and the more conser- vative Republicans. If the leading men in the eleven states had fully understood the laws of war and their effect upon the situation, they would have concurred with General Longstreet; they would have convinced their people that necessity was upon them ; that they ought WAR AND RECONSTRUCTION 183 to ascertain as soon as possible what were the best terms the majority in Congress would consent to grant; and then unhesi- tatingly comply with those terms. Without intending to mislead, believing firmly that he was right, President Johnson, the Democratic party, and those Republicans who in 1866 attended the Philadelphia con- vention of " good feeling," did mislead the South, and much of e^dl to the South and to the nation was the result. In order to fairly judge the conduct ^f a people or of a person, effort should be made to " put yourself in their place," as nearly as a mental operation can enable one so to do. The Southern people were confronted by a problem that was practically unsolvable by persons trained, as they had been, amid the trammels pecuhar to a slaveholding commu- nity. The institution of slavery was "pe- culiar " in more than one sense. So many perils, actual or imaginary, beset it that " freedom of speech," or " freedom of the press," in the fullest meaning of the words, could not safely be permitted. To mention any of the evils or disadvantages of the 184 WASHINGTON VERSUS JEFFERSON institution was supposed to be " incendiary." Few measures or questions relating to soci- ology or politics could be thoroughly dis- cussed without coming in contact with slaves and slavery. This narrowed the field for intercommunication of thoughts and opinions. Weeds, in the shape of preju- dices, grew rank. As a large majority of the people at .the North were known to be opposed to slavery, prejudice against them was general at the South. The Southern people were ignorant of the habits, etc., of Northern people, and because of prejudice against them did not care to learn about them, and did not respect or value Northern opinions. In the summer of 1865 it had become a necessity that the South should accede to terms and adopt measures that, in the opinion of the North, would furnish " indemnity for the past and security for the future." As slavery had been the effective cause of the civil war, all, except those who were mentally blind, knew that it must be pro- hibited in every state ; this every Johnson provisional government did. More than three and one-half millions of people of WAR AND RECONSTRUCTION 185 color, in the eleven states, had suddenly been made free. The old relations between master and slave had been suddenly de- stroyed. A large, wholly uneducated popu- lation was thrown upon its own resources. In South Carolina and Mississippi they far outnumbered the whites ; in Florida and in Louisiana the two colors were almost equal in numbers ; in the other states the freed- men were largely represented. Although, as slaves, they had generally labored faith- fully for their masters' families, anA in- stances of outrage and serious disorder had been few, a general dread of danger from the freedmen was felt in all the eleven states. As the state slave codes were no longer applicable, the state legislatures were expected to make new laws for keeping the colored population under restraints deemed necessary for the safety of the whites in their persons and property. Mississippi put this expectation into her constitution in 1865, in the following words : — " The legislature shall provide by law for the protection and security of the persons and property of freedmen of the state, and 186 WASHINGTON VERSUS JEFFERSON guard them and the state against any evils that may arise from their sudden emancipa- tion." The legislature enacted a law providing that every freedman, whose age was within years named in the statute, should, on or before a certain day in January in each year, make a contract with a responsible white person for the freedman's services for the entire year : each freedman who failed to so contract was to be bound by the sheriff to that responsible white person who would — at a public offering under a pub- lished notice — bid the largest sum for the services of the freedman for that current year. In discharge of his duty to keep order in the territory submitted to our arms until reconstruction should be completed, the President, by his generals, had stationed a small military force in each of the eleven states, under designated commanders. Gen- eral Thomas J. Wood, a Kentuckian by birth, held this command in Mississippi. In his report for the year 1866, he gave an ex- tended narrative of transactions in Missis- sippi affecting the freedmen, showing how WAR AND RECONSTRUCTION 187 said statute was being appKed, and causing belief that under it the evils of slavery, without its good features, continued to exist in that state. While in some of the states negroes were liable to a limited capitation tax, at the dis- cretion of the legislature, none of the John- sonian constitutions required the opening or maintenance of any school for colored chil- dren ; and none of the eleven state legisla- tures in 1865 or 1866 passed any law for that purpose. % Under the act of March 3, 1865, a Freed- man's Bureau had been created, charged with supervision of the slaves who had been or should be emancipated. As a general rule, army of&cers stationed in the slave ter- ritory controlled by our armies were de- tailed as agents of this bureau, each acting within and for a specified district. Reports of these agents stated in what manner the whites of their respective districts treated the colored inhabitants. Congress also was confronted with a problem exceedingly difficult to solve. The majority desired to restore the Southern people to all the rights of citizens of the 188 WASHINGTON VERSUS JEFFERSON republic upon the most generous terms that the necessary " security " for the national " future " would permit. Almost all were unwilling to change the names or boundaries of states with which so many cherished asso- ciations were connected, or to unnecessarily humiliate a proud people. National security for the future required, as more than two thirds of both houses thought : (a) An end of slavery, (b) Absolute safety for the creditors and pensioners of the nation, (c) Such a definition of national citizenship as would prevent dispute as to the obligations of each citizen to the nation, and as to his rights against each state, and enable the nation to protect its freedmen. (d) Power in Congress to so control the election or appointment to office of men who had sup- ported the war against the nation that no man about whose future loyalty to the na- tional government there was doubt, should be clothed with power to injure the nation. (e) Protection of the people of the eleven states from all liability for the unpaid debts of the Confederacy, or of any of its states, incurred in maintaining war against the nation, (f) Protection of nation, states, and WAR AND RECONSTRUCTION 189 people from all claims of masters for the loss of any slave, (g) A readjustment of representation in the electoral college and in the House of Representatives, so that no part of the political power of slaveholding whites, who had for four years warred against the nation, should be based upon their former slaves, so long as no colored male adult in their states should be per- mitted to vote. Amongst thoughtful men at the North there was no material difference of opifton as to the necessity of these seven conditions for reconstruction. As to ^^ (d) " there was difference of opinion touching the definition of the power to be vested in Congress. What is now the Fourteenth Amendment to the Constitution was adopted by Congress on June 13, 1866, by almost three fourths of the members voting^. While the House, in committee of the whole, had this amendment before it, Mr. Raymond, of New York, moved to strike out section 3, which reads thus : — " Sec. 3. No person shall be a senator or representative in Congress, or elector of president or vice-president, or hold any 190 WASHINGTON VERSUS JEFFERSON office civil or military under the United States or under any state, who having pre- viously taken an oath as a member of Con- gress, or as an officer of the United States, or as a member of any state legislature, or as an executive or judicial officer of any state, to support the Constitution of the United States, shall have engaged in insur- rection or rebellion against the same, or given aid or comfort to the enemies thereof; but Congress may by a vote of two thirds of each house remove such disability." The Republican members of the House divided almost equally on this motion. If the Democrats had voted for it, the section would have been stricken out. The Demo- cratic managers wished to defeat the entire amendment, and supposed that if said sec- tion should not be stricken out, Mr. Ray- mond and his wing of the RepubHcans would not vote for the amendment. In that case a two-thirds vote in its favor could not be had. But Raymond and those voting with him deemed the amendment essential to the safety of the nation, and to prevent its defeat they voted for it, and it was adopted. WAR AND RECONSTRUCTION 191 Neither North nor South understood the other. To the North it seemed plain that officers and officials who had supported the South in the war had been guilty of conduct properly named perjury and treason. Those so thinking considered section 3 as dealing very mildly with the offenders. To the South it seemed that each man's first and paramount allegiance was due to his state ; that he owed no duty of any kind to the United States after his state had enacted an ordinance of secession ; that his state ^had full right and power to enact such an ordi- nance ; that it was his duty to obey his state, to support its action, and to maintain its cause in war in case it should become involved in war ; that any oath taken as an officer of the United States ceased to have any force or obligation so soon as, in obedi- ence to the call of his state, he resigned his United States office. It may be said of Southern men as truly as of the Northern, that each one acted conscientiously — in firm belief that he was doing his duty. Of course, there were men in both sections who lacked principle and patriotism, and were not influenced by ^Muty." Therefore to 192 WASHINGTON VERSUS JEFFERSON the South section 3 seemed harsh, unde- served : they felt that they were in honor bound to refuse to ratify such a condemna- tion of men who had periled health and life in the defense of their states. The Republicans controlled the legisla- ture of Tennessee, — members elected by those Tennesseeans who had supported and fought for the nation. It ratified the Four- teenth Amendment on June 19, 1866. In July, 1866, Congress admitted Tennessee to full representation in both houses. This action was in effect a proclamation to the people of the ten states that the vic- tor in the war had decided to waive any demand for " indemnity for the past," and to require as " security for the future " no- thing more than the ratification of the Four- teenth Amendment, as a condition precedent to the admission to seats of senators and representatives from said ten states. If the leading men at the South had understood the situation : (a) That each state had made its continued political existence dependent upon the result of the war ; (b) that the manner in which the war had ended had vested in the national government the WAR AND RECONSTRUCTION 193 power and right to name the terms upon which each state mio^ht continue to exist as a state in the Union ; (c) that the Fourteenth Amendment stated those terms ; (d) that the only matter within the control of the people of each state was to decide whether they would accept the terms and continue to be a state, or reject the terms and remain subject to such " rules and regulations " as Congress might provide for the " territory " taken possession of by their armies ; — they would also have understood that acceptlince of the terms fixed by the victor could not dishonor them; that they owed it to their states to secure a continuance of state Hfe. The legislature of Alabama omitted to ratify this amendment and adjourned. Gov- ernor Parsons wished to convene them in special session and to send in a message advising its ratification. President Johnson, as firm and persistent in his support of the claim of the ten states to full representation in Congress, as he had been in opposition to secession, used all the influence of the national executive against such ratification. All of the ten states refused to ratify. Subsequent events demonstrated that this 194 WASHINGTON VERSUS JEFFERSON was unwise. The resources of the ten states had been exhausted by the four years of war. They were entirely destitute of the means for resistance to the demands of Con- gress. Under the then existing cir(3um- stances no tenable objection could be made to any part of the Fourteenth Amendment except said section 3. When that section is examined without passion or prejudice, it appears that the victor nation, after a bloody and costly war of four years, had decided to not prosecute criminally any of its own for- mer of&cials or citizens who had fought or supported the war against it, and to content itself with a reservation of the right and power to determine when, if ever, any of those who, before aiding in that war, had sworn to support the national Constitution, should be permitted to hold office. Can this be justly styled harsh or unreasonable ? If the ten states had ratified the Four- teenth Amendment in the summer and fall of 1866, they would have been readmitted to full representation in Congress in Decem- ber of that year ; the Reconstruction Act of March 2, 1867, would never have been passed ; their white population would have WAR AND RECONSTRUCTION 195 controlled their state politics and legislation. No carpet-bag rule would have found place in their history. The era of Ku-Klux, of fraudulent elections, and their appurtenant crimes would never have been. The exten- sion of the voting franchise to the colored race would have awaited the influence of time ; of the progress of the race in educa- tion and business experience ; of the grow- ing conviction that the right to vote should be restricted only so far as the protection of life and property and pubHc order might require ; and of the natural wish of any state having many residents of that race to increase its political power by numbering them among the voters of the state and thereby adding them and their families to its representative population. That Congress intended no unreasonable continuance of the disqualification created by the Fourteenth Amendment was demon- strated by a most liberal use of its power to remove the disability. During the last twenty-five years, able sons of the South, who had fought in gray upon many battle- fields, or had held high positions in the Eichmond government and congress, have 196 WASHINGTON VERSUS JEFFERSON been useful, influential, and honored mem- bers of the national Senate and House ; have sat on the supreme bench and in the Cabinet, and represented the nation at for- eign courts. I believe that the number whose disqualification Congress refused to remove was less than a score. That amendment, it seems to me, will in time command the approval of all lovers of order and of obedience to law. No man can now take the oath of ofB.ce without under- standing his obligation to his country, — to the nation. No national official can ever hereafter fancy that he is a representative of his state, looking after that state's interests in a " general agency " doing business under the name and style of the " United States." That men did so fancy in 1860 and 1861 is shown by the parts played by Sec- retary of War Floyd and Assistant Secre- tary of State Trescott in attempting to sell national arms to South Carolina in Novem- ber and December, 1860 ; of Secretary of the Interior Thompson in appearing before the legislature of North ^Carolina as com- missioner for Mississippi to urge the seces- sion of " the old North State ; " of Justice WAR AND RECONSTRUCTION 197 Campbell in acting as an agent of the Con- federacy while still occupying a seat upon the supreme bench and drawing a salary from the United States. No man can care- fully read the Fourteenth Amendment and fail to believe in the existence of the nation. By March, 1867, almost two full years had gone by since active war had ended. The reports of the military commanders and of the agents of the Freedmen's Bureau in the ten states had been printed and read by many outside of as well as in Congress. Large numbers of conservative men, whose opinions had been strongly against an ex- tension of the voting franchise to the col- ored race, who had earnestly hoped and wished to escape an experiment accompanied by so many perils, had become convinced that unless the right to vote should be given them when their states should be readmitted to representation in Congress, the condition of that race would become worse than it was while in slavery. They at length concurred with the more radical wing of the RepubH- can party in thinking that the nation owed a duty to the people enfranchised by it ; a duty to protect their rights of person and 198 WASHINGTON VERSUS JEFFERSON property ; and that under the then existing circumstances this duty could not be per- formed unless it should arm them with the ballot. Thus the Reconstruction Act of March 2, 1867, was voted for, not only by extreme Republicans, but by many conservative men of that party, and by Senator Reverdy John- son, Democrat, of Maryland. The Fif- teenth Amendment was the logical sequence of that act, but Congress moved so slowly, watching and studying the South, that this amendment was not adopted by Congress until the 26th day of February, 1869. The decisive votes of 145 ayes to 4A noes in the House, and 39 ayes to 13 noes in the Senate indicated the effect upon opinion at the North of the reported action of the people of the ten states, during the almost four years that had elapsed since the surrender at Appomattox. On March 30, 1870, this amendment became parcel of the Constitu- tion. On July 15, 1870, Georgia, the last state to be finally accorded full representa- tion in Congress, was restored as a state in the Union, and Washington's prediction was finally fulfilled. The Jefferson doctrine of WAR AND RECONSTRUCTION 199 1798, " pertinaciously " applied, had pro- duced an attempt to dissolve the Union, and complete coercion had followed. In the last years of his life " The Father of his Country " was troubled by fears for that country's future ; and by calling upon the eloquent Henry to combat the political heresy of the Kentucky resolution, he hoped to convert Virginia to the true constitu- tional faith. " Man proposes, God dis- poses." It would seem that it was the Divine plan for the progress of man to Visit upon North and South war and destruction, because by both had been continued (if not originated) the offense of slavery ; and yet in the end to bless them both by the timely removal of that institution and its perils. If the national government, in 1861, had re- cognized the seceding states and admitted the right of any state to secede at its own pleasure, it would have ceased to be a na- tional government ; the states would again stand to each other substantially as they did during the years from 1783 to 1789. Every reader of Professor John Fiske's " The Crit- ical Period of American History " will un- derstand that a voluntary consent to such a 200 WASHINGTON VERSUS JEFFERSON practical destruction of the Constitution was impossible. The war on the part of the nation was for self-preservation, not for con- quest. It was terrible ; its exj)enses of life, money, and property were immense. That expenditure prevented the establishment in North America of an indefinite number of rival nationalities of our race. At first there might have been only two. Along a frontier of at least two thousand miles, the slaves of the South could cross a stream or an imaginary fine, and be free. No non- slaveholding nation, able to defend itself, ever surrendered the escaped slave of an- other. Such escapes would inevitably result in questions, difficulties, and possible wars. The disputes between tide water and trans- Alleghany Virginia, which primarily pro- moted the creation of West Virginia, indi- cate how probable like disputes in other states and parts of states would be. When once each state knew that the door was open, and its power to go out unquestioned, how long would Mississippi Valley states remain with Virginia, the Carolinas, or Geor- gia; or with New England, New York, and Pennsylvania ? or Rocky Mountain or WAR AND RECONSTRUCTION 201 Pacific states with any Eastern or Central ? All persons who, in early 1861, read British editorials upon President Buchanan's mes- sage and the successive secessions, will re- member the satisfaction with which the fall- ing in pieces of the great American Republic was expected. I believe that the verdict of posterity will be that the Union armies fought, not only for the nation and the North, but also for the true welfare of the South, and for human progress and elevation. I ask my readers to thoughtfully consider the follow- ing words of President Lincoln spoken at Gettysburg, November 19, 1863 : — '' Fourscore and seven years ago, our fathers brought forth on this continent a new nation, conceived in Hberty, and dedi- cated to the proposition that all men are created equal. Now we are engaged in a great civil war testing whether that nation, or any nation so conceived and so dedicated, can long endure. We are met on a great battlefield of that war. We have come to dedicate a portion of that field as a final resting-place for those who here gave their lives that that nation might live. The brave 202 WASHINGTON VERSUS JEFFERSON meiij living and dead, who struggled here, have consecrated it far above our poor power to add or detract. The world will little note, nor long remember, what we say here, but it can never forget what they did here. ... It is rather for us to be here dedicated to the great task remaining before us, — that from these honored dead we take in- creased devotion to that cause for which they gave the last full measure of devotion ; that we here highly resolve that these dead shall not have died in vain ; that this nation^ under God, shall have a new birth of free- dom, and that government of the people, by the people, for the people, shall not perish from the earth." INDEX INDEX Abolitionism, voting strengtli of, 69. Adams, John QuiBcy, held the Alissouri Compromise consti- tutional, 58. Arkansas, voted for union in 1861, 118 ; seceded because of belief in Jefferson's resolu- tions, 152, 153. Atchison, D. R., his attempts to extend slavery, 71, 73. Benton, Thomas H., opinions on Compromises of 1820 and 1850, 73. Buchanan, James, effect of Davis's argument, 137-140. Calhoun, John C, framed Texas joint resolution, 5 ; held !Mlssouii Compromise constitutional, 57, 58. Catron, Justice, opinions, 48, 83. Common Sense, suggestions to Senator Davis, 106-121. Compromise of 1850, 5 ; 55-57 ; 65-67; 89. Congress, organized Colorado, Dakota, and Xevada, 12 ; 79 ; 140 ; proposed amendment to Constitution in 18(31, 13 ; 140, 141 ; power to legislate for territories, 48, 49 ; to prevent increase of slavery, 51-53 ; never decided to divide terri- tory equally or equitably be- tween freedom and slavery, 5, 55-60 ; prohibits slavery, 84- 86 ; its action in 1860-61, 140 ; •war powers, 171-173 ; 177- 180. Convention of 1787, resolved to frame a national government, 3, 20 ; to make the national judiciary the arbiter, 3 ; vested sovereignty in the na- tion, 3 ; also power to pre- vent increase of slavery, 3, 50-52. Court, the Supreme, decided that sovereignty is in the na- tion, not in any state, 4 ; re- versed Wisconsin cases, 12 ; other decisions, 28, 41-43 ; 45, 48, 95, 98, 13:3-136. % Crawford, W. H., deemed Mis- souri Compromise constitu- tional, 58. Crittenden Resohition of Au- gust, 1861, 169, 170. Davis, Jefferson, his character^ 81 ; slave code resolutions, 86, 87 ; 91, 92 ; 97-102 ; their effect on elections. 102, 103 ; Common Sense and Davis, 87, 88 ; 106-121 ; his argu- ment in Cabinet, 136-140. Delaware voted for imion in November, 1860, 147. Democratic Conventions, of 1852, 5 ; of 1860, 9, 98-102 ; of 1856, 90. Dred Scott Case, the, 8 ; 45- 48 ; 81-84. Federalist, The, on the judici- ary article, 27. Fugitive Slave Clarrse, the, 44 ; legislation under it, 122-127 ; action under it, 127. Georgia, deed ceding Alabama and Mississippi, 5, 54 ; disre- gard of Supreme Court, 133- 136. 206 INDEX Habeas Corpus, Suspension of, 173-176. Henry, Patrick, opposed seces- sion theory, 2, 39. Jackson, Andrew, approyed the Wisconsin Act, 85. Jefferson, Thomas, his Ken- tucky resolutions, 2, 16 ; com- ment on, 23, 24 ; his theory, 37, 38 ; its final effect, 198, 199 ; he approved the Michi- gan and Illinois Acts, 85. Johnson, Andrew, his powers and policy, 176. Johnston, J. E., 159. Judiciary, the national, the arbiter, 24, 25, 27. Kansas, struggle about slavery, 73-78 ; 87, 88. Kentucky resolutions, 17 ; 150- 153. Kentucky voted for Union in June and August, 1861, 147. Lee, R. E., letter to his son, 40 ; his resignation, 158. Lincoln, Abraham, speech at Jonesboro in 1858, 9, 104, 105 ; his common sense, 166 ; proclamation of Dec. 8, 1863, 179 ; Gettysburg speech, 201, 202. Louisiana, act organizing, 45; votes on tariff laws, 146, 147. Madison, James, on coercion, 28, 36, 138; modifies Ken- tucky resolutions, 39 ; disa- vows Calhoun theory, 39. Marshall, John, decisions, 41- 42 ; 45. Maryland voted for Union in 1861, 147. Mason, George, condemns slav- ery, 50, 51. Mexican cession and slavery, 61-67. Mississippi, legislation in 1865, 185, 186. Missouri voted for Union in February, 1861, 147. Missouri Compromise, prohib- its slavery, 5 ; not an iso- thermal line, 5 ; repealed, 7 ; its adoption, 57-60 ; effect of repeal, 69-73. Monroe, James, approved the Missouri Compromise, 58. National Intelligencer, The, on Personal Liberty BiUs, 129, 130. Nelson, Justice, opinions, 47, 83. North Carolina, deed ceding Tennessee, 5, 54; voted for Union in 1861, 148 ; seceded because of belief in Jeffer- son's resolutions, 152, 153. Obiter Dicta, in Dred Seott Case, 47-49 ; 81-84. Personal Liberty Bills, 10 ; 129-136 ; 141. Polk, James K., approved Ore- gon and Minnesota Bills, 85. Preamble to the Constitution, 21. Preface to Articles of Confed- eration, 21. Reconstruction, Northern claims, 180-192 ; terms de- cided upon, 188-192; com- ments on, 194-198. Secession Plot, The, 149 ; 153- 157. Senators not ambassadors, 33-35. Situation, the, when secession began, 106-121; 140-149.^ Slavery, prohibitory legisla- tion, 4 ; 5 ; 57-59 ; 84, 85 ; 112 ; a local institution, 53 ; census facts, 78, 79 ; 88 ; 142 ; its limited validity, 92-96._ Slaves, number in all territo- ries in 1860, 78, 79 ; 88 ; 142. South, the, two thirds voted for Union in 1860-1861, 147, 148 ; views on reconstruc- tion, 70 ; 181-193. South Carolina, disregard of INDEX 207 Supreme Court, 133 - 136 ; votes on tarifE laws, li6, 147. Sovereignty vested in the na- tion, 29-33. State, clause reserving sov- ereignty omitted from Con- stitution, 3 ; 26 ; sovereign powers denied to it, 31-33 ; ceded to nation, 29-31 ; lias no power over its senators and congressmen, 34, 35. Stephens, A. H., his opinions, 33; 52. Tariff laws, votes on, 146, 147. Taylor, Zaehary, his policy, 62. Tennessee, voted for Union in 1861, 148 ; seceded because of belief in JefPerson's resolu- tions, 152, 153 ; readmitted, 192. Texas joint resolution, 61. Thomas, George H., his loy- alty, 39, 40. Thurman, Allen G., speech for the Wilmot Proviso, 63, 64. Tucker's Blaekstone, 150-152. Tyler, John, approved Texas joint resolution, 85. Virginia, voted for Union in 1861, 148 ; seceded because of behef in Jefferson's resolu- tions, 152, 153. War for the Union, its neces- sity, 199, 200 ; its result good for South as well as North, 199-202. War, the laws of, 167. Washington, George, letters against Jefferson's resolu- tions, 2 ; ■ 18 ; his construc- tion of the Constitution, 36, 37 ; his prediction fulfilled, 198, 199. Webster, Daniel, speech March 7,^ 1850, 65-67. Whig Convention in 18R2, 5. Wirt, William, held that the Missouri Compromise was constitutional, 58. CAMBRIDGE, MASSACHUSETTS, U. S. A. ELECTROTYPED AND PRINTED BY . H. O. HOUGHTON AND CO. \