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 Washington vs. Jefferson: 
 
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 3 1924 030 469 633 
 
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 There are no known copyright restrictions in 
 the United States on the use of the text. 
 
 http://www.archive.org/details/cu31924030469633 
 
WASHINGTON 
 
 vs. 
 
 JEFFERSON 
 
 THE CASE TRIED BY BATTLE IN 1861-65 
 
 BY 
 
 MOSES M. GRANGER 
 
 FORMERLY CAPTAIN i8tH U. sr"lNFANTRY, 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 COMPANY 
 
 1898 
 /< 
 
 ^ 
 
A.is-fotis- 
 
 COPYRIGHT, 1898, BY MOSES M. QBAI^OBB 
 ALL BIGHTS BESBBVED 
 
CONTENTS 
 
 PAGE 
 
 I. iNTRODtrCTORT CHAPTER 1 
 
 n. A Constitutional Nation 16 
 
 III. Congress and the Territory 44 
 
 rV. 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 
 
 INTRODUCTORY CHAPTER 
 
 The war of 1861-65 will always com- 
 mand the interest of both North and South. 
 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 aU 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 wiU 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 establish 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 CaroUna, 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 hke, 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 
 legislation 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 
 
 of 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 lUinois, 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 plurahty 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 congressional 
 slave code for the territories. Although 
 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 
 Republican 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 Mr. 
 Lincoln, and added the conservative states 
 of the North to the Republican 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 aU laws necessary to protect and en- 
 force every constitutional right ; that the 
 Constitution gave the South a right to an 
 effective 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 i£ in Congress. 
 This speech was published and read every- 
 where at the North for two years, and by 
 the nomination and election of Mr. Lincoln 
 the Repubhcan party indorsed his opinion. 
 
 Although Massachusetts, Vermont, Michi- 
 gan, and Wisconsin legislatures had passed 
 " personal Hberty 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 
 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 foUy, 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 officials 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 Eevolution, 
 of the Constitution, and of the days of 
 Washington, Jefferson, and Madison. His 
 character and his abihties 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 sufPered 
 in honor, in property, or in prosperity by 
 reason of Mr. Lincoln's occupancy of the 
 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 Republican 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 CaroUna, before 
 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 Carohna. 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; fuUy two thirds of the South so 
 thought. The aforesaid veteran workers 
 counted upon the faith of those eight states 
 in JefPerson'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 applicable 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 poHtical 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 having 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 bitter 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 the 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 povrers, reserving, each state 
 to itself, the residuary mass of rights to their own 
 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 itseK ; since 
 that would have made its discretion, and not the Con- 
 stitution, the measure of its powers ; but that, as in 
 aU 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 o£ 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- 
 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-rederalists, " Measures are systemati- 
 cally and pertinaciously pursued which 
 must eventually dissolve the Union, or pro- 
 duce coercion." 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. After 
 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 supreme 
 legislative, executive, and judiciary." This 
 was adopted by the votes of Massachusetts, 
 Pennsylvania, Virginia, North Carolina, 
 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 Authok. 
 
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, fense, 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 establish 
 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 establishing. 
 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 aU 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 aU 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 invalidity of any act of Con- 
 gress. If that assertion had been true, then 
 indeed would the Constitution be a cipher. 
 Either Delaware or Rhode 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, i£ collec- 
 tion could not be made in Rhode Island, it 
 could not be made anywhere. 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- 
 tqn, Franklin, or Roger 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 
 
 peachments of national officers ; and ques- 
 tions which may involve the national peace 
 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 he made, under their 
 authority ; to aU cases affecting ambassadors, 
 other public ministers, and consuls ; to aU 
 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 familiar with 
 the Articles of Confederation. Their com- 
 missions made it their duty to study those 
 articles. Eead 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." 
 
 WhUe the ratifications of the Constitution 
 were pending before the state conventions, 
 "The Federalist," see No. LXXX., page 
 588, 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. Such is the 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 Vu-ginia delegate, thinking of the 
 " Federal plan," had suggested that in case 
 any state should be dehnquent, 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 hope that a national system, with 
 full power to deal with individuals, will 
 he framed, and the resource he thus ren- 
 dered unnecessary." 
 
 Madison's hope was realized; a national 
 system was adopted and established, with 
 
A CONSTITUTIONAL NATION 29 
 
 full power to compel the obedience oi every 
 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- 
 pelling 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 discipHne 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 aU 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 their 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 be the supreme 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 
 notwithstanding." 
 
 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 nobility ; 
 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 danger 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 
 establishment 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 VII. 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 qa- 
 tional, dealing with 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 sovereign 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 fidl 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 24 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 over 
 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 change 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 hoped would be done, the na- 
 tion's government was given " fuU power to 
 deal directly with individuals." No state 
 officer can rightfully interfere between a 
 constitutional United States law and its ^n.o- 
 lator. All who so interfere wlU share the 
 crime and the habUity to punishment. No 
 so-called 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 detei^ 
 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 during 
 their good behavior, selected by the people's 
 chosen president and confirmed by senators 
 representing all the states, — judges who 
 could not win such selection and confirma- 
 tion without years of testimony to their 
 ability, 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 JefEerson'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 CaroHna had full right to nul- 
 lify any law of Congress that a South Caro- 
 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 
 framing and establishing 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, in 
 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, biit 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 Virginian, George H. Thomas, fol- 
 lowed the example of Patrick Henry, and 
 used aU his powers to maintain the suprem- 
 acy of the national laws. As an officer 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 his son thus : 
 " 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 compact; 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. Long's " Memoirs of R. E. 
 Lee," page 88. When he wrote that letter, 
 Robert E. Lee beheved as Washington and 
 Henry had done. In April, 1861, he be- 
 came a follower of JefPerson 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 States 
 was ordained and established, not by 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 eflEectively 
 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 " (McCuUoch 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 appear 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 TEKBITOKY 
 
 It will be germane to our subject to trace, 
 down to A. D. 1860, tbe 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 the 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 fuU 
 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 argued 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 
 right to determine such matters. So the 
 treaty merely protected slaveholders' rights 
 in the then settled districts ; that is, in the 
 land now within Louisiana, Missouri, 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 Missouri 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 applied 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 appUcation 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- 
 tory northwest of the river Ohio to the re- 
 quirements 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. AU territory 
 within the jurisdiction of the United States 
 not included in any state must necessarily 
 be governed by or under the authority of 
 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 respec- 
 tively, instead of as a government holding 
 
50 WASHINGTON VERSUS JEFFERSON 
 
 for its people ; a nation holding title in fee- 
 simple; holding the power, and subject 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, pubhshed 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 ixx 
 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 granted 
 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 Std,tes 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 o£ 
 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 implication it left the law of the 
 free state to apply in fuU 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 legislation 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 that the 
 nation at that early period adopted as its 
 policy a division 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 
 Carolina. 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 
 
56 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 iabroad, 
 it gave effect to the convention's purpose. 
 Meanwhile the treaty with France had added 
 to the national domain about 1,150,000 
 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 Hmits 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 Kmits. As France could, while she 
 had dominion, determine when and imder 
 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 biU to authorize 
 Missouri to form a state constitution having 
 been introduced in 1819, the House of 
 Representatives, by a vote of 97 to 56, so 
 amended it as to prohibit slavery, except as 
 a punishment for crime. The Senate 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 thirty-six degrees, thirty 
 minutes north latitude, excepting only such 
 part as is included within 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 Virginian. 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 pohcy 
 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 unre- 
 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 line of 36° 30' was 
 chosen as a suitable climatic limit 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 ahove 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 Qorner of Texas. It so happened 
 that a line drawn due west from the south- 
 west corner of Missouri to the Mexican hne 
 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 northern 
 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 hue 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 Hne 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 Kne 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 pohtical evils incident to slavery had 
 caused the civilization of our age to con- 
 demn and abohsh 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, 1847, 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 municipal 
 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 Congress 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 Carolina, Georgia, Florida, Alabama, 
 Mississippi, Louisiana, Texas, Arkansas, 
 
CONGRESS AND THE TERRITORY 65 
 
 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 become ex- 
 cited ; its people had been taught to beUeve 
 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 
 WUmot 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 
 impossibihty. What is there in New Mex- 
 ico that coidd 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. AH 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 that 
 year, no slaves, and in Utah only twenty- 
 nine slaves. All efforts to establish 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, 
 especially at the South, as to the influence 
 of abolitionism. 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 291,263 
 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 wrong. In 1852 Ohio 
 had sent a majority of Democrats to the 
 national House of Eepresentatives, and in 
 1853 had elected a Democratic governor by 
 
70 WASHINGTON VERSUS JEFFERSON 
 
 over 61,000 pluraUty. 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 plurahty. 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 view 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 E. 
 Atchison, one of Missouri's senators, began 
 a movement to carry slavery west of that 
 state. When the Senate met in December, 
 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 
 mdes of slave Missouri from free Iowa, and 
 Nebraska, bounded by 40° and 49° ; and 
 extended over them all the laws of the 
 United 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 
 fuU 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. 
 Among 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- 
 hsh 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 officer at each poUing-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 of 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 oJBBcers, 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 efEectively 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, eqxiipped 
 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 fuU 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 77 
 
 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 circumstances, 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. Although men of the South dif- 
 fered in opinion on many questions from 
 
CONGRESS AND THE TERRITORY 79 
 
 men of the North, all men knew 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 changes 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 well suppHed with both 
 modes of transit. The unwillingness of free 
 laboring men to make homes in slave states 
 was well known. These significant 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 February, 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 of 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 Eepresentatives, 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 
 North 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 WAE 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 wiU 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 aU 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 Act of 
 March 6, 1820, had provided), they might 
 have 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 vahd 
 because of the terms of the treaty of 1803 
 with France, neither of them believed 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 intelligent 
 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 be 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 new 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 Buren 
 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 Minnesota. 
 
 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 estabUshment 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, weU-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 
 Carolinian. Had Mr. Davis's mind been 
 filled with practical common sense, he would 
 have asked himseK : " 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 make 
 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, f uU of sympathy 
 with the South, had rendered all practicable 
 aid in the efEort 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 efEort 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 coiild not possibly do any good to the 
 South. Few slaveholders would care to 
 settle with slaves in a community that with- 
 
HOW CIVIL WAR WAS 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 Congress to refrain from active 
 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, estabhshing, 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^rm- 
 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, " You 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 wiU 
 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 o£ free persons, inchid- 
 ing those bound to service for a term of 
 years, and excluding 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 could 
 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 be rendered by " John " 
 in South Carolina may be due to a master 
 therein. It is also, by imphcation, recogni- 
 tion of the fact that that law of South Caro- 
 hna has no force outside of the limits of 
 that state ; and that if " John " escaped 
 from South Carohna, " 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 Hue, 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 Hmbs, 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 be performed within the 
 state of South Carolina, or within any 
 other state that would so legislate. An 
 emigrant farmer could carry with him his 
 cattle from South Carolina to any other 
 locality, 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 emigrate 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 
 descrihed by the " fugitive slave clause ; " 
 to wit, to furnish by appropriate legislation 
 the means for making proof of claim and se- 
 curing a dehvery 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 aU 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 estabhshed ; to wit, non- 
 intervention 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 fuUy provided 
 appropriate legislation as to them, there re- 
 mained nothing due from Congress accord- 
 ing to the principle and law thus declared 
 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 eflPect 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 aU 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 aU 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, 
 
HOW 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 five 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 United 
 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 aU 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 JefiEersonian-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 Hmits of said 
 state, or as to any citizen or resident of said 
 state. 
 
 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 
 
 come 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 was 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 legislative 
 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 akeady 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 lUinois 
 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 said 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 iU-considered demand for a congressional 
 slave code aroused even these conservatives, 
 and their accession to the Eepubhcan 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 
 estabhshed 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 estabhshed 
 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 legislation 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 deem it my duty to 
 do ? 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 make 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 : — 
 Davis. " 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 lUinois, 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 wiU 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 h^ve 
 left it that the majorities against it in the 
 next Congress wiU 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 and 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- 
 ten, will sit in the presidential chair ? " 
 
 Davis. " What abou,t 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 aU prob- 
 able." 
 
 Davis. " But will Lincoln execute it ? " 
 
 Comm,on 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 wiU see that he 
 holds that the South has a right to the f uU 
 enforcement of the fugitive clause of the 
 Constitution ; and that, if existing legisla- 
 tion shall be found ineffectual, 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." 
 
 Davis. "But will the North leave 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 fuU 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), 
 1848 (Oregon), and 1849 (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 Gov- 
 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 afEect 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 win continue to permit Southern poU- 
 
HOW CIVIL WAR WAS PREVENTABLE 115 
 
 ticians and statesmen to have a controlling 
 influence in general administration, as they 
 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 which the 
 question has been htigated, except that of 
 Wisconsin, have adjudged unconstitutional 
 aU their provisions that conflict with said 
 fugitive 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 
 holding of the Wisconsin court, there has 
 been no trouble in that state. The habits 
 of thinking of the Northern people will 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 name that 
 course, let me convince you of one or two 
 facts not yet fuUy 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 pledge adopted by both parties ' that 
 they 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 WAS 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 mainly 
 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 wiU fight 
 sturdily for their convictions unless some 
 means for averting war can be devised. If 
 war shall come it will be ' fought 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 them 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 fuU know- 
 ledge that he would maintain your consti- 
 tutional rights under that clause, they will 
 be freed from aU apprehension of evil to 
 the South ; they will gladly declare their 
 willingness to resume the ' Quaker quiet ' 
 of 1852-53 and to leave aU 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 most 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 2, article IV. 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 IV., 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 delivered 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 9, 
 
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 required 
 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 the 
 master a summary remedy under which he 
 might either seize and remove to his own 
 state his escaped slave, or cause the arrest 
 and dehvery 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 then- 
 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 " with proof also hy 
 affidavit of the identity of the person whose 
 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 deliver 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 faded 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 aU 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 efEecting his 
 return, and, by a suflB.cient number of offi- 
 cers, due diUgence 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 already 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 hberty bills." 
 On December 11, 1860, " The National 
 Intelligencer," the well-known conservative 
 Whig daily newspaper, so long pubhshed 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 very few 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 Coiui; 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 liberty biUs" 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. AH 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 servitude, 
 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 
 Intelhgencer," the great majority of the so- 
 called '•' personal hberty biUs " were enacted 
 for this perfectly constitutional piu^pose, 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 beUeved 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 officers, 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 biUs " 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 althougli 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, hti- 
 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 
 
 hanged a Cherokee; and the same Georgia 
 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 having first obtained Georgia'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 unconstitutional, 
 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 Carolina nor Geor- 
 gia ever repealed any of said unconstitu- 
 tional state statutes because of any national 
 court's judgment. The habits of thinking 
 at the North permitted a belief that an act 
 of Congress 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 hberty 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 affirmed by the 
 national Supreme Court. 
 
 Several members of President Buchanan's 
 cabinet believed in the right of secession, 
 and Avished 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 message should take strong 
 ground against secession. Therefore Sena- 
 tor Jefferson Davis, 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 believe 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 urged that the national govern- 
 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 wiQ 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 th* 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 unneces- 
 sary." 
 
 The national government, having " power 
 to deal with individuals " (it was immaterial 
 whether those individuals were or were not 
 
WHY ELEVEN STATES 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, saying, 
 " When that is done, coercion is complete." 
 
 When President Buchanan used the 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 invite 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, 
 1860, 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 Fugitive 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 office 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 untU 1865, 
 subject to the action of a Democratic Sen- 
 ate upon all appointments to office. 
 
 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 Congress 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 
 Republican President. 
 
 This was the situation when the Civil 
 WsLV 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 officials effectively executed 
 the Fugitive Slave Law, and the national 
 Supreme Court deprived the unconstitutional 
 features of those state laws of aU 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 with 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 great 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 wiU show how carelessly 
 those hastening into secession examined 
 their supposed grievances. The South Car- 
 olina convention named " tarifE 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 
 tariflPs 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. Lincoln, 
 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 
 Republicans. 
 
 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 
 o£ 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 
 believed 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 "separate 
 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 EepubHcan." Their plans were 
 greatly aided by the fact that for many 
 years a large nmnber 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 
 Gul£ States and Georgia followed at short 
 intervals. 
 
 In early April, President Lincoln made 
 known to Governor Pickens and General 
 
160 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 vras 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, calUng out 75,000 three- 
 months volunteers. 
 
 These facts presented to the four states 
 — Virginia, North Carohna, 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 Washington 
 wrote, " The Constitution, according to their 
 interpretation of it, would be a cipher," 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 Jefferson. 
 
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 believe. 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 insufficient, 
 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 
 delegates 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 disturhed 
 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 Eepublican 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 behef 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 rnanagers, 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 AliTD THE ABMY 
 
 Immediately after passing an ordinance 
 of secession, the Virginia convention voted 
 a call upon aU 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 httle 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 imjust. 
 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 169 
 
 eral Scott, and succeed him as commander- 
 in-chief. Joseph E. Johnston was quarter- 
 master-general, holding a life position with 
 a good salary, and a home in Washington. 
 They both abandoned present rank and pay 
 and future promotion, and were on duty in 
 Richmond within ten days. While I was a 
 captain in the 18th United States Infantry, 
 a brother officer 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. AU 
 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 regret 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 behave 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 all 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 brother 
 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 oiie son of 
 that most earnest Unionist, the Rev. Dr. 
 Eobert 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 of&cer, 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. Duncau, 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 Okioan, 
 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 
 AUatoona from our General Corse. Daniel 
 Buggies, 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. DanviUe Leadbetter, a Maine West 
 Pointer, laid out the fortified lines for Chat- 
 tanooga, KnoxviUe, 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 93,44:1 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 Carolina, 
 Tennessee, and Arkansas, whose governors 
 refused to furnish a man under the first 
 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 officers, to the Union navy, and to the 
 Union army, Scott, George H. Thomas, Ord, 
 Nevrton, Emory, Philip St. George Cooke, 
 Robert Anderson, Hunter, Gibbon, Getty, 
 Pleasonton, Torbert, Wood, Rosseau, and 
 many others, able, gallant, and meritorious. 
 
166 WASHINGTON VERSUS JEFFERSON 
 
 The S^outh, 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 AST) 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 understand 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 civilized 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 aU 
 similarly placed garrisons. 
 
 This principle of " saving " has given to 
 the victor who completely subdues his foe 
 the right to decide the Umits 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 aU. If 
 the war shall end by treaty, that wUl define 
 their subsequent relations; but if it shall 
 
WAR 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, 
 recognized the Confederate States as a bel- 
 ligerent. 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 aroimd the Capital ; that 
 in this national emergency Congress, ban- 
 ishing aU feelings of mere passion or resent- 
 ment, win recoUect 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 aU the dignity 
 and equahty and rights of the several states 
 unimpaired ; and that as soon as these ob- 
 jects are accompHshed 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 fuU 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 might vest in the na- 
 tion. If the fighting was to go on, the na- 
 tion had f uU 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 aU 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 
 mUitia 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 hmiting words. While 
 the recognition of the Confederates as bel- 
 Hgerents, gave them some advantages, it 
 deprived them of others. For 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 public 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 appUcation of the principle 
 above stated, our commander-in-chief had full 
 right to cause the slaves of our " belUgerent 
 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 public 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 
 Avith " the act. To prevent such arbitrary 
 exercise of royal prerogative (from the time 
 of William 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 abOity," 
 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, 
 Parhament prohibited any suspension of 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 military 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 fix and determine those relations, 
 limited only by the stipulation in the terms 
 
WAR AND RECONSTRUCTION 177 
 
 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 coidd 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, 
 ofPered terms at divers times, notably on 
 December 8, 1863. In the proclamation 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 
 ofEered by him could not give a right to 
 said representation. When the great Presi- 
 dent died by the buUet of an assassin, three 
 Confederate armies, commanded respectively 
 by Johnston, Kirby Smith, and Taylor, were 
 still in the field. But when President John- 
 son, 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 inhahitants. Of 
 coxu"se 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 fuUy 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 political 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 beUeved that 
 each state, upon full compUance 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 fuUy 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 j 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 evil to the South and 
 to the nation was the result. 
 
 In order to fairly judge the conduct of 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 pecuUar 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, aU, 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, and 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 applied, 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 officers stationed in the slave tei> 
 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 aU were 
 unwiUing 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 obUgations 
 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 of&ce 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 liabiUty 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 
 
WAS AND RECONSTRUCTION 189 
 
 people from all claims of masters for the 
 loss of any slave, (g) A readjustment of 
 representation in the electoral coUege 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 difEerence of opinion 
 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. 
 Eaymond, 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 Repubhcan 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 Republicans 
 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 deaUng 
 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 "duty." 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 might 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 
 he 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 acceptance 
 of the terms fixed by the victor could not 
 dishonor them ; that they owed it to their 
 states to secure a continuance of state life. 
 
 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 f uU representation 
 in Congress, as he had been in opposition 
 to secession, used all the influence of the 
 national executive against such ratification. 
 AU 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 circum- 
 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 officials 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, 
 shoidd 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 public 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 
 Richmond 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 of&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 shoidd be given 
 them when their states should be readmitted 
 to representation in Congress, the condition 
 of that race would become worse than it was 
 whUe in slavery. They at length concurred 
 with the more radical wing of the Republi- 
 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 
 baUot. 
 
 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 44 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 fuU 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 " appKed, had pro- 
 duced an attempt to dissolve the Union, and 
 complete coercion had followed. 
 
 In the last years of his Hfe " 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 expenses of life, 
 money, and property were immense. That 
 expenditure prevented the estabhshment 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 nules, the 
 slaves of the South could cross a stream or 
 an imaginary hne, 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 
 
i 
 
 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, wiU 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 Uberty, 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 
 
 men, 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, Toting strength 
 of, 69. 
 
 Adams, John Qnincy, held the 
 Missouri CoinpToniise consti- 
 tutional, 58. 
 
 Arkansas, voted for union in 
 1861, 148 ; 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 Missouri 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 Nevada, 12 ; 79 ; 
 140 ; proposed amendment to 
 Constitution in 1861, 13 ; 140, 
 141 ; power to legislate for 
 territories, 48, 49 ; to prevent 
 increase of slaverj;, 51-53; 
 never decided to divide terri- 
 tory equallT 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 nar 
 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, 133-136. 
 
 Crawford, W. H., deemed Mis- 
 souri Compromise constitu- 
 tional, 58. 
 
 Crittenden Resolution of Au- 
 gust, 1861, 169, 170. 
 
 Davis, JefEerson, 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 union 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 Clause, 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, approved 
 the Wisconsin Act, 8o. 
 
 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, 86. 
 
 Johnson, Andrew, his powers 
 and policy, 176. 
 
 Johnston, J. E., 159. 
 
 Judiciary, the national, the 
 arbiter, 24, 25, 27. 
 
 Kansas, struggle about shivery, 
 
 73-78 ; 87, 88. 
 Kentucky resolutions, 17 ; 150- 
 
 153. 
 Kentucky voted for Union in 
 
 June and August, 1861, 147. 
 
 Lee, B. £., 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, 14B, 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. 
 
 Kational Intelligencer, The, on 
 Personal Liberty Bills, 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 Scott 
 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. 
 
 Eeoonstruetion, 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 j 140-149. 
 
 Slavery, prohibitory legisla- 
 tion, 4; 6; 57-59; 84, 85 
 112 ; a local institution, 53 
 census facte, 78, 79 ; 88 ; 142 
 its limited validity, 92-96. 
 
 Slaves, number in all territo- 
 ries in 1860, 78, 79 ; 88 ; 143. 
 
 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 tariff laws, 146, 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 ; has 
 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 Jefferson's resolu- 
 tions, 152, 153 ; readmitted, 
 192. 
 
 Texas joint resolution, 61. 
 
 Thomas, George H., his loy- 
 alty, 39, 40. 
 
 Thurman, Allen 6., speech for 
 the Wihnot Proviso, 63, 64. 
 
 Tucker's Blackstone, 150-152. 
 Tyler, John, approved Texas 
 joint resolution, 85. 
 
 Virginia, voted for Union in 
 1861, 148 ; seceded because of 
 belief in Jefferson's resolu- 
 tions, 152, 153. 
 
 War for the Union, its neces- 
 sity, 199, 200 ; its result good 
 for Soudi 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 1852, 5. 
 
 Wirt, William, held that the 
 Missouri Compromise was 
 constitutional, 58. 
 
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