LIBRARY OF CONGRESS, /Af- UNITED STATES OF AMERICA. .^^^*-: "^^^m^ ^^^^>^.^ 'v^<^- - ^i -^ ^ X "^ N v^ g 'sj ' t^^;^^, 'Wt^^^' CONSERVATIVE ESSAYS LEa^I. J^NT) POLITICA.L, BY S. S. NICHOLAS, OF LOUISVILLE, Kli-NTUCKT. ^^^' PHILADELPHIA: J. B. LIPPINCOTT & CO, 18G3. ^^a M^ Entered, according to Act of Congress, in the year 1863, by J. B. LIPPINCOTT & CO., in the Clerk's OfiBee of the District Court of the United States for the Eastern District of Pennsylvania. CONTENTS. Introduction Page vii CHAPTER I. Powers of a State Convextiox 11 CHAPTER II. No. I — PoirER OF Majorities over Constitutions 16 No. II — Power of Majorities over Constitutions — Part of the Kentucky Platform 25 CHAPTER III. The Higher Law 28 CHAPTER IV. Manifest Destiny 38 CHAPTER V. Squatter Sovereignty — Response to the Essay on Popular Sov- ereignty IMPUTED TO THE IIoN. R. J 47 CHAPTER YI. Disunion — Extract from a Series of Numbers Published under this Title in the Summer and Fall of 1856. No. 1 56 No. II 64 No. Ill 70 No. lY 76 (iii) IV CONTENTS. CHAPTER VII. Disunion — Part of a Speech Delivered at a Public Dinner given to Governor Moreiiead, in Louisville, October, 1859. 83 CHAPTER VIII. The Crisis and its Treatment — Part of a Letter to the New York Times, January 26, 1860 89 CHAPTER IX. * A Plan for Obtaining our Presidents ■without the Intervention of Political Parties ■ 94 CHAPTER X. The Right of Secession. No. 1 101 No. II 110 CHAPTER XI. South Carolina, Disunion, and a Mississippi Valley Confederacy. No. I — The Antecedents of South Carolina- 116 No. II — South Carolina's Declaration of Independence... 120 No. Ill — The South Carolina Declaration of Independence. 126 Xo. IV — A Mississippi Valley Confederacy 133 CHAPTER XII. Disunion and the Policy of Kentucky. The Position and Policy of Kentucky 145 Restoration 1*' Coercion l*^* The Mississippi Valley Confederacy 157 CHAPTER XIII. Martial Law— Part of a Pamphlet First Published in 1842, over THE Signature of a Kentuckian. No. I No. II No. Ill Appendix to Chapter XIII, Published June, 1861. 160 172 188 ICl CONTENTS. CHAPTER XIV. No. I — The Law of War 199 2so. II — Abolitiox Proclamation', Why the President will not Enforce It 213 CHAPTER XT. A Revieh' of the Argument of President Lincoln and Attornev- GENERAL BaTES, IN FaVOR OF PRESIDENTIAL PoWER TO Suspend the Privilege of the Writ of Habeas Corpus 21G 1. The Ex-officio Power of Arrest 220 2. The Exemption from Control 223 3. The Constitutional Prohibitions 23G 4. Martial Law 242 5. The Two Wars 250 Appendix to Chapter XY, A. Extracts from Calhoun's Speech on Jackson's Protest.. 267 B. Extracts from AVebster's Speech on Jackson's Protest... 268 C. Opinion of Chief Justice Kent 270 D. Synopsis of Cases Referred to by Attorney-general 271 E. Sections of the Bill before the Senate, not Passed for Want of Time ; 273 CHAPTER XA'I. Habeas Corpus. No. 1 276 No. II — A Response to Mr. Binney 289 No. Ill — Acts of Indemnity 307 No. IV — Comments on the Late Act of Congress, "Relating to Habeas Corpus," etc 311 No. V — A Review of President Lincoln's Response to the Albany Meeting 319 No. VI — Further Remarks on President Lincoln's Response to the Albany Meeting 327 CHAPTER XVII. Confiscation and Attainder. No. 1 335 No. II — The Policy of Confiscation and Emancipation 340 No. Ill 35 1 VI CONTENTS. CHAPTER XVIII. Law and Constitutional Reform — Jury System 361 CHAPTER XIX. The New Constitution of Kentucky. No. 1 380 No. II — Elective Judiciary 390 No. Ill — Promoting Political Parties 402 No. IV — The Executive 411 CHAPTER XX. Letters on the Presidency, First Published in 1840, and Repub- lished, WITH Appendix, in 1859. No. I ■ 418 No. II 425 No. Ill 433 No. IV 442 No. V 451 No. VI 465 No.VII 475 Appendix to Chapter XX. No. I — Letters from Roger M. Sherman and S. S. Nicholas. . 487 No. II — Letters from William H.Crawford and Chief Jus- tice Marshall 496 No. Ill 499 No. IV — Party Despotism, Excesses, and Corruption 500 No. V — A Plan for Obtaining our Presidents without the Intervention of Political Parties 504 No. VI — Letters from Hon. B. R. Curtis, Hon. William A. Graham, and Hon. William C. Rives 506 CHAPTER XXI. Criminal Code — Chapter XII. of an Act Codifying the Criminal Law of Kentucky, with Appendices thereto, and THE Introductory Address to the Legislature. No. I — Address to the Legislature of Kentucky 511 No. II — Homicide and other Offences against the Person.. 522 Appendix to Chapter XXI 539 INTRODUCTION. The largest liberty of the citizen compatible with necessary restraint, or in other words, good government^ is the desideratum for whose achievement the wise have incessantly labored since the first formation of human society. This is the great insol- uble problem, upon which the wisdom of the whole world has been in vain expended. At the establishment of ours, there was one form of self-gov- ernment by the people, on a large scale, that had never been tested by experiment, — that is, a Representative Republic under a written Constitution. This it was determined should be tried. The written Constitution, being the great distinctive feature of the plan, its sanctity and continual supremacy was an obvious necessity to the success of the plan. All depended upon that. The distribution of power between the Federal and State Governments, with its subdivision betw^een three separate, in- dependent bodies of magistracy, it w^as hoped and believed, ■would have great influence in maintaining that supremacy. As to its sanctity, much reliance was placed on its being the nation's great law, voluntarily ordained, which all would be educated to reverence and willing to obey, as their own fi'ee- will obligation of allegiance to each other and of joint fealty to their country. There was superadded to this natural fealty, sufficient of itself with enlightened patriots, the obligation of an oath, to be taken by all Federal and State officers, to support the Constitution, thereby teaching them to honor it as the highest, dearest object of American allegiance. Its founders spared no pains in inculcating upon the nation the great im- portance to our happiness and prosperity of permanently pre- serving the Constitution in inviolable sanctity. It was to stand in lieu of the hereditary power, the checks and balances of (vii) Vlll INTRODUCTION. other governments, in giving security to life, liberty, and prop- erty, whilst the nation was enjoying the inestimable privilege of self-government. In that marvellous production of human wisdom — in that American sermon on the mount — in that cele- brated farewell address, the joint production of Washington, Madison, Hamilton, and Jay, we are told : " The basis of our political system is the right of the people to make and alter their Constitutions, but that which at any time exists, until changed by an explicit and authentic act of the whole people, is severally ohligatory iqyon all. The very idea of the right and power of the people to establish government presupposes the duty of every individual to obey that which is established." * * * " It is indeed little else than a name, when the Govern- ment is too feeble to withstand the enterprises of faction, to confine each member of society tvithin the limits prescribed by the laws, and to maintain all in the secure and tranquil enjoyment of the rights of person and property." * * * a r^-^^ spirit of encroachment by one department upon another tends to con- solidate the powers of all the departments in one and thus cre- ates, whatever the form of government, a real despotism. If in the opinion of the people the distribution or modification of the constitutional powers be in any particular wrong, let it be corrected by an amendment in the way which the Constitution designates. But let there be no change by usurpation: for though this in one instance may be the instrument of good, it is the cus- tomary weapon by tvhich free Governments are destroyed. The precedent must always greatly overbalance in permanent evil any partial or transient benefit which the use can at any time yield." The fathers all taught by precept and example the sacred inviolability of the Constitution as the very " palladium of our liberties." In the better days of the Eepublic its wilful viola- tion would have been deemed an indelible stain upon the honor of the perpetrator ; a pernicious breach of patriotic duty. Not only every officer. State and Federal, but also every attorney- at-law, was taught to consider himself a sworn sentinel or guard over the Constitution. Every judicial officer deemed himself, and was esteemed by all others, as placed in command of a post for its protection. Any judge who ignominiously deserted that post, or pusillanimously evaded the performance of its duties, INTRODUCTION. IX would have been viewed with the scorn and loathing that attends the military commander who, from cowardice or treach- ery, surrenders a military post to a foreign enemy. Any judge who failed to do his duty in behalf of the liberty of the hum- blest citizen, under the miserable pretext that a military com- mander would not obey his judicial order, and that he did not desire to bring the judicial in collision with the military author- ity, would have been consigned to that lowest degradation into which an aroused national scorn could condemn him. Im- peachment and expulsion from office would have been the cer- tain doom of any judge guilty of such a treasonable betrayal of his trust as to decide that in time of war a military com- mander had the rightful power to do whatever necessity required for the success of the national arms, and that the commander was the exclusive judge of the existence and extent of such alleged necessity. It would but have added to the turpitude to make a pretext of such supposable necessity, in a community far away from the site of military operations, and amply pro- tected from all possibility of danger from hostile invasion, by a superabundant national force, besides one to two millions of loyal militia. If such ample power in the hands of the Gov- ernment does not entitle the people to the full, peaceable enjoy- ment of all the constitutionally guaranteed rights of freemen, including those of free speech and free press, then such Gov- ernment is a manifest failure, being inadequate to perform its obvious duty, in the most important purpose for which it was instituted. There is a widely pervading defection from the original heart- devoted loyalty to the Constitution. A revival of that feeling is greatly needed if we are to hope for a preservation of our liberties. It is the most urgent duty of the hour, upon every pati'iot, to do what he can to promote such revival. This republication of the following essays is made with the hope that they may render some small aid in that behalf. Those of them written many years ago, and principally devoted to the denunciation of the pernicious influence of political partyism upon our system of Government, are quite pertinent as an aid towards the proposed revival. For, as to that excess of party- ism can be clearly traced the present danger to the Union, 2 X INTRODUCTION. 80 it is also the main cause of popular defection from that original loyalty to the Constitution, which is so indispensable an element in the national character, if we are to hope, on rational grounds, that liberty will survive this direful, most hateful rebellion and the unconstitutional, inhumane appli- ances with which its suppression is attempted. "Whilst the apathetic lethargy of their political leaders, pending the tram- pling out of the very life of the Constitution, fills every en- lightened patriot with despondent gloom, the manifestation by the great body of the people themselves of a still living, unconquerable affection for the Constitution, inspires a trustful hope in its ultimate triumph and in a no ignoble future for American liberty. Let us each do what he can for its preser- vation, and never despair for the Republic. Let us each do what he can, to ward off that dire doom, a military despotism, which the fathers have warned us against as the probable, if not neces- sary result, of such a war as is now waging. CONSERYATIVE ESSAYS. CHAPTER I. October 25, 1849. POWERS OF A STATE CONVENTION. The recent discussion of this subject has called forth the expression of some crude opinions, indicating the prevalence of a radical error of the most pernicious character. Three of the oldest lawyers in the convention have distinctly claimed for that body the power, in contradistinction to the right, to do anything and everything they please not prohibited by the Federal Constitution. This absolute power, thus broadly claimed, does not exist, and public sentiment should be kept right or set right on that subject. The principle affirmed is most pernicious and anti- republican. It caused all those bloody atrocities of that reign of terror which signalized the French Revolution with such enduring infamy. Americans should never overlook or forget its claims to their abhorrence. The members of the convention are mere representatives. Their power is all delegated. They have neither individually nor collectively any natural power over the State which needs to be specifically restrained, in order that it be not unlimited. But, being merely delegated power, it extends only so far as to enable the convention to fulfil the purpose of the delega- tion. This restriction is indispensable according to every prin- ciple of sound republicanism, and according to every rational rule of construction. Plenary power is delegated to a physician over his patient, but it is a power which, without express reservation, neces- 12 POWERS OF A STATE CONVENTION. sarily implies limitation. It is a power to cure, not to kill. If lie wilfully use it to produce death, b.e does not merely abuse the power given to him, but usurps a power not given. He was allowed no discretion to produce death. So,- also, the nominally unrestricted powers of the convention are neces- sarily limited by an implication which appertains to the very purpose of its institution. Or, in other words, and more pro- perly to speak, under the general power to make a constitu- tion, they can have none but such implied powers as are neces- sary to that end. The object in making a constitution being the protection of personal rights and property, when the con- vention, instead of protecting, shall attempt wilfully to destroy any of those objects, it would be an attempt at usurpation, not merely an abuse of power, and its act would be void. Such implied limitation is inherent in all trust powers. Neither have they any of the administrative powers of gov- ernment, either executive or judicial. Because no such power is necessary to the establishing a form of government. They were appointed to amend the present or establish a new form of republican government, but not in any way to administer either government. Strictly speaking, they have not even legislative power, their proper duty being only to frame a gov- ernment, by which the State shall hereafter exercise its legis- lative and administrative powers. Its powers are solely organ- izing, not administrative. Suppose the members of the present convention, without abolishing the present Constitution, were to vote all the power of government into their own hands, and those of successors of their own appointing, thus giving themselves unlimited con- trol over every man's life and property. Would this be a legally formed government, of which we could only rid our- selves by insurrection or rebellion ? Not so. Because it would not be a mere abuse of power, but an attempt to usurp a power not delegated ; the mere power to form a government, by no possible intendment, authorizing the usurpation of all govern- ment into their ow^n hands and for their own benefit. As well might a mechanic, to whom had been entrusted the discretion- ary power to either repair a house, or pull it do^\1l and rebuild another, claim the power to keep the house for himself and POWERS OF A STATE CONVEXTION. 13 drive away the owner, from whom he derived his power. But it may be asked, suppose, before this attempted usurpation, they had repealed the present Constitution ; what then ? The an- swer is, that society would be dissolved into its original ele- ments, and, after punishing the treason, would have to appoint new delegates to a convention to form another government. Suppose that without any repeal of the Constitution, they were to undertake to punish emancipation. Being mercifully minded, they are content to make a single delinquent expiate the crimes of all his fellows. In dispensing such expiatory mercy, they naturally select the highest offender, one whose position points him out as most worth}^ the honor of being made the expiatory victim. They then unanimously resolve that Henry Clay, being a notorious disturber of the public peace, a propagator of principles injurious to the well-being of so- ciety, and being too old for any hope of reformation — be it therefore ordained, as a terror to all persons in like cases offending, that the sheriff of Fayette county do take the said Henry Clay and execute him under a gallows. Wlien such an ordinance came to be presented to the sheriff, if he be not a bastard Kentuckian, he would spit upon it and trample it under his foot. But suppose he attempts to execute the order. It would fall innoxious from his hand, at the command of the humblest judicial officer, who could issue a writ of habeas cor- pus. But suppose the sheriff" forestalls this by an immediate execution, then he would be guilty of wilful murder, and he, together with all the members of the convention as his acces- sories, punishable with death by the law of the land. This no lawyer will deny. But, to descend from such extreme cases, suppose the con- vention ordain that his home or any property, which, by no figment, can be brought under the protection of the Federal Constitution, be taken from him and given to B. Would such an ordinance pass the title to B ? N"o intelligent man will say it would. Or that Mr. Clay, in lieu of all other penalty, do pay a fine to the State of five dollars. Could the fine be col- lected ? All lawyers must answer no. It may be taken, then, as proved, that the powers of the convention are not unlimited as to matters without the scope 14 POWERS OF A STATE CONVENTION. of the Federal Constitution, but are necessarily limited to' ob- jects within the purpose of its own institution. The inquiry then comes, what are those objects ? We need not look far to find them. They are developed in the Constitution. They are to form a government which shall better secure the rights and promote the ends for which men enter into society and volun- tarily organize a government over themselves. Those rights and ends are well defined in the preamble to the Constitution to be " the enjoyment of the right of life, liberty, and property, and of pursuing happiness." With this view all conventions are convened in free States. Existing rights of persons and property are a supposed pre-existing status. Conventions are used merely to secure them. They are none of them derived by grant, express or implied, from either the conventions or the great body of society at large. Conventions and written constitutions are means used by the people, not to confer those rights, for each man brought them with him into society, but the better to secure their enjoyment, under a properly organized government, adequate to their protection. If a con- vention, under such a commission to provide for the protection of the right of property, were to attempt arbitrarily to abolish the right altogether, they would as clearly transcend their power, and attempt to usurp a power not given as a physician who wilfully kills a patient whom he has only power to heal. The proposition is not therefore true, is not at all tenable, that we hold our property by the good-will and pleasure of the pre- sent convention. We hold it by a right anterior to the insti- tution of government, a right above their reach, and which they cannot abolish. Nor is this merely true because they are only delegates, ex- ercising a necessarily limited power, derived from a majority of the people. The power of that majority is a mere delegated trust power, which is itself under a similar necessary limita- tion. When a man joins other men in a journey to California, it is for the purpose of mutual security of life and property. They have the power to rob and murder him, but it is a power of mere brute force, the power of the strongest, not at all de- rived from any authority, express or implied, derivable from the act of association. The great principle of civil liberty, POWERS OF A STATE CONVENTION. 15 consecrated by the blood of the Eevohition, is, that " all right- ful government is founded on the consent of the governed." No man or set of men can ever be presumed voluntarily to con- sent to being arbitrarily robbed or murdered. It matters not whether the government be in the hands of a majority of the people, or in those of a selected or delegated few, no such presumption can ever be justly indulged against a minority of the governed. Whatever power there may be in the majority to rob or murder, it is only the power of the strongest. It has no moral basis ; it is no way derivable from the social compact. There is no such distinction in reference to this subject as that attempted to be made between right and power. They are, in this aspect, correlative and equivalent terms. The right gives the power ; the want of it disproves the power. So also the power carries with it the right. But right and expediency are not the equivalents of each other. The right may exist without expediency in its exercise. With this distinction kept properly in view, it may be confidently affirmed that the con- vention has no power over property which it has not a right to exercise. When they have no right, neither have they any power. As the attempt has been gravely made to distinguish between such right and power, the convention ought formally to nega- tive any such distinction. Absolute, arbitrary power in gov- ernment is so abhorrent to every intelligent lover of civil liberty, that we should heedfully discountenance anything which even looks like giving it a recognition among us. Ab- solute arbitrary power over the lives, liberty, or property of freemen exists nowhere in a republic, not even in the largest majority of the people. This principle is as sacred as truth and justice, and should be as enduring. The convention will do itself much honor by permanently engrafting the principle on our bill of rights. It has not been done by previous conven- tions only from oversight, or rather more probably from the belief that it was sufficiently elucidated by the other princi- ples contained in the Bill of Rights. But so important a prin- ciple should be affirmed in the most unambiguous terms, and not left to be made out by mere inference or reasoning. 16 POWER OF MAJORITIES OVER CONSTITUTIONS. CHAPTER II. March 3, 1858. POWER OF MAJORITIES OVER CONSTITUTIONS. No. I. There are many well meaning, ignorant persons who hon- estly suppose that all republicanism consists in the principle that the majority ought to govern. From this sound principle, when properly understood, they deduce the non sequitur, that the majority has an indefeasible, natural right to govern as it pleases. There can be no greater heresy against the true prin- ciples of civil liberty than this. There is no basis of natural right or justice for the power of a thousand men not merely to govern themselves, who all think alike and have the same interests, but also to govern nine hundred and ninety other men, who think differently and have different interests. "All rightful government rests upon the assent of the governed." The right of the majority to govern rests upon the express or implied assent of the minority. In strict justice the power has no natural basis but that. If it come in any other way, it is the result of usurpation or force. It was a great step gained in behalf of the rights of man, or civil liberty, when it was determined that the minority ought never to govern. But there would have been no such gain if it had been settled, at the same time, that the majority has a right to govern according to its own unbridled discretion. AH government, says the sage, is hut a necessary evil. So government by the majority, like any other mode, is but a thing of neces- sity, and to be rightfully allowed only so far as necessity re- quires. Such is the theory of a republic, as elucidated in our written constitutions, withholding as they do in their Bills of Eights large classes of subjects from the control or power of majorities. A State Constitution that allowed the majority unrestrained power over all or most of those subjects would not be a republican form of government in the American POWER OF MAJORITIES OVER CONSTITUTIONS. IT sense, nor within the true meaning of the Federal Constitu- tion. The governing party in Church or State, whether the minority or majority, will always play the tyrant or oppressor towards its opponents. All history proves this. ISTo example to the contrary can be found in the history of any nation. Men, whether acting singlj^ or in multitudes, have ever proved them- selves untrustworthy of absolute power over their fellow men. Man is naturally intolerant, persecuting, and tyrannical in his disposition. Either as an hereditary sovereign or a ruling ma- jority, he is wholly unworthy of absolute trust. The last Ken- tucky convention did itself great honor by enunciatnig this great principle in unambiguous language, and engrafting it as follows upon our bill of rights : — '■'■ Absolute arbitrary poiver over the lives., liberty., or property of freemen exists nowhere in a republic — not even in the largest majority." It should be a fun- damental axiom with us, that when any part of our nation agrees to meet, through delegates, in convention for the pur- pose of forming a constitution, it is alwaj'S with the express understanding that it shall be thus republican in its principles and structure. The assent of no American can be imjjlied to any but that form of government. Without that assent, ex- press or implied, there will be wanting the great essential to all rightful government. The Declaration of Independence, in self-justification, has consecrated the sacred right of revolution : " Whenever any form of government becomes destructive of the inalienable rights of man." Under his right to overthrow a tyrannical government, it is attempted now to inaugurate a new dogma, which shall give a bare majority the right to overthrow, when and how they please, a constitution that destroys none of the inalienable rights of men. We arc told that this is a divine, inalienable right of the majority, which, if it could be alienated for a day, could be done forever; that the majority cannot so fetter its own power and cannot even temporarily resign its divine right to enslave the minority. This is a new teaching to the nation, who have never heretofore been taught faith in any such divine right of majorities. All our written constitu- tions, our jurisprudence, and our legislation teach an entirely different lesson. They teach that the rule of the bare majority 3 18 POAVEE, OF MAJORITIES OVER CONSTITUTIONS. governing should nowliere prevail except as a matter of neces- sity, and that there are various matters about which a bare majority should not be trusted with power. Prominent among those stands the power, by convention or otherwise, to abolish or amend a constitution. There is not one of our written con- stitutions which provides for its own amendment or revision, that does not put restraint upon the will of the majority in accomplishing an amendment or revision ; not one that does so restrain it in ordinary legislation, and not one that does not disregard it altogether as to certain sacred subjects, and among them the unanimity required in the verdicts of juries. The teaching of all gives anything rather than a divine origin or inalienable sanctity to the rights of majorities. Such concur- rence on the part of the whole nation must place the justice and policy of limiting the power of the majority upon an im- pregnable basis. He must be a bold man indeed who would endeavor to enforce his peculiar notions to the contraiy. Mr. Buchanan is that man. In his Kansas message, in order to extenuate the injustice of forcing the Lecompton Constitu- tion upon the Territory against the known will of four-fifths of its voters, he says the injustice will be only temporary, be- cause, as he says, the majority will have the immediate right and power to abolish this Constitution and adopt another, even though the Constitution itself says it shall not be altered for six years. This novel heresy against civil liberty is so impor- tant that it should be stated in Mr. Buchanan's own words. Here they are : " The will of the majority is supreme and irresistible, when expressed in an orderly and lawful manner. It can unmake constitutions at pleasure. It would be absurd to say that they can impose fetters on their own power which they cannot after- wards remove. If they could do this, they might tie their own hands just as well for a hundred as for ten years. " If, therefore, the provision for changing the Constitution of Kansas after the year 1864 would be constituted into a pro- hibition to make such change, previous to that period, it would be wholly unavailing. The Legislature already elected may, at its first session, adopt all necessary means for giving efiect to the popular will." POWER OF MAJORITIES OVER CONSTITUTIONS. 19 Such are tlie enliglitened ideas of civil liberty officiallj^ pro- mulgated by a President of the United States at this late day. Are these his real principles, or, politician-like, are they merely adopted for the occasion ? " The will of the majority supreme and irresistible." " Can unmake constitutions at pleasure." "Absurd to say the majority can impose fetters on its own power." Why, a raw boy of eighteen 3'ears, who had expended only six weeks in the study of the institutions of our country, could teach him that written constitutions, the proud, invalu- able political characteristic of our nation, are a device gotten up with the express, if not the sole view, of imposing fetters upon the power of the majority. The sole use of a constitu- tion is to institute a restrained, restricted government. In a republic the majority of the people are of necessity, as well as right, the government, or what is the same, the controllers of government. It is therefore expressly for the purpose of im- posing fetters upon the power of the majority that written con- stitutions are made. It is by reason of and in consideration of such fetters that minorities consent to be governed by ma- jorities. Those fetters are the very essence of civil liberty. Without them there is no true civil liberty ; according to our American ideas there can be no true republic. In unanswer- able proof of this, look at all the constitutions framed since the Declaration of Independence. There is not one of them which does not withhold more numerous and far more impor- tant powers than it yields to the maj ority. Nor has the wis- dom of this sort of teaching from the founders of the Republic been contradicted by popular experience. Every new consti- tution and every revision has proved that the justice of this l^rinciple is continually carrying new conviction to the popular mind. No new constitution or revision but has imposed addi- tional fetters upon the legislative power, that is, upon the powder of the majority. The popular consciousness of the intrinsic justice and policy of such fetters is strikingly illustrated by the recent action of the political party claiming to be the most purely Democratic, in requiring a vote of two-thirds to carry the nominations of even its political conventions. If a bare majority be not fit, in the estimation of the Democracy, to make even a party nomination of candidates, how unfit, how little 20 POWER OF MAJORITIES OVER CONSTITUTIONS. can it deserve to be made the arbitrary, despotic depository of supreme uncontrolled power over the lives, the liberties, and the property of freemen. As said by the Democracy of Ken- tucky, in the convention that framed our present Constitution, no such poiver exists in a republic ; no, not even in the largest ma- jority of the people. "Wlierever such power is found, in what- ever form of government, it is a mere usurpation upon natural right ; it is a tyranny over the natural rights of man. The citi- zen must be free from persecution by the majority for his reli- gious or political opinions, and his property free from arbitrary confiscation, or there is no civil liberty. To secure him against such persecution, the powers of government are confided to three distinct bodies of magistracy, and executive and judicial vetoes upon legislative acts are allowed, and the trial by jury o:uaranteed. These and various other methods are resorted to by our constitutions for the sole and express purpose of better securing the efiScacy of the many fetters which the constitu- tions have imposed upon the power of majorities, and which majorities have again and again voluntarily assisted in im- posing. This we are fain to believe they did from a sense of justice, and not from a fear that they themselves might not continue in the majority, or from necessity as the only mode of obtaining the voluntary consent of minorities. All our cherished constitutional guarantees for the preserva- tion of liberty become a mere cheat and mockery if this new dogma as to the power of majorities should prevail. "Wliat secures the citizen against persecution for his religious or po- litical opinions, and what guarantees him against arbitrary confiscation of his property ? It is the Constitution, and the Constitution alone, that secure him. He has heretofore been taught to believe, and he cherished the belief with feelings of the warmest reverence and afiection, that the Constitution was his fortress of impregnable security. It was for this he prided himself as an American ; this was the proud characteristic for which he vaunted his birthright over that of the nations of every other land. But now Mr. Buchanan teaches him that this supposed defence of impregnable security is a mere brittle straw between the finger and thumb of an all-powerful ma- jority ; that his liberties are no birthright, for which he owes POWER OF MAJORITIES OVER CONSTITUTIONS. 21 thanks only to the God of freemen ; that they are the mere voluntary grants of his fellow-men, which are always liahle to be resumed by the divine right and inalienable power of the majority. Does a majority want to persecute a minority for conscience or opinion's sake or to confiscate property, the Con- stitution imposes a barrier. But, according to the new dogma, this barrier can be immediately removed, and the minority visited with swift vengeance. A bare majority of the Legis- lature can call a convention which will remove those barriers. This can be done even at a convened extra session, and all accomplished within the brief space of three months. Instead of holding our liberty and property by an indefeasible right, the birthright of freemen, we hold them as the mere beneficed vassals of a majority! Of that liberty and that property we are ever liable to be deprived, within any period of three months, by the capricious but " supreme and irresistible will of the majority?" Is this American liberty ? The personal rights of each freeman are the only divinely derived rights ac- knowledged by true republicans. To all other pretended divine rights, whether of monarchical or majority despots, they ascribe the opposite paternity. The fundamental idea with us is that freemen derive none of their rights from gov- ernment, but carried all their rights with them, when they agreed to place themselves under republican government. How absurd then the idea that the majority has an inalienable divine right and power to resume what it never granted ! Is Mr. Buchanan demented ? "What does he mean by pro- claiming to the nation such slavish principles ? The federal school in which he obtained his political teaching has always had ascribed to it the desire for a strong government. What he now proposes would give us a strong government with a vengeance. It greatly transcends, in irresponsible pernicious strength, anything ever imputed to the old Federal party. Does he utter his real sentiments, or is he merely playing the mod- ern politician, using arguments and adopting theories to suit the occasion ? By his undue efforts to force the Lecompton Constitution upon the people of Kansas, he is supposed to be attempting to conciliate the South and soothe its resentments against the isothermal intervention of his Governor "Walker. 22 POWER OF MAJORITIES OVER CONSTITUTIONS. Wliat is Kansas to the South in comparison with, the detri- ment it would receive from inauguration of this new dogma? The iJiTorth has, and always will have, a majority of the States and of the people. If his dogma is worth anything it lays the Federal Constitution at the mercy of a bare majority of the nation; or, if he prefers it, at the mercy of a majority of the people of the States. Will that suit the South ? If his object be to prove the genuineness of his Democracy, he will find himself equally mistaken. It is a mistake which all old Fede- ralists are apt to make, who turn Democrats late in life. They believe that Democracy means locofocoism, agrarianism, or red- republicanism. The true Democrats, they who still adhere to the teachings of the original founders of their great party, will undeceive him and take care that his new dogma shall obtain no hold on popular favor. They will let him know that the genuine, old-fashioned, original Democracy of this country had no taint of either of those isms. They have nothing American about them. They are modern importations from Europe. He tells us that the great State of New York, as he chooses to designate her, made her present Constitution in direct op- position to the mode prescribed by her previous Constitution. Great she no doubt is in bulk, in population, and in wealth, but in any sort of moral greatness she ranks among the least of the States. Her politicians, with some few honorable excep- tions, are mere temporary expediency men. They have no fixed political principles. They recognize no fundamental principles either in the structure or administration of govern- ment. They seem totally to lack anything like moral training in politics. With them the nearest way to their object is ever the right way. A constitution has no sanctity with them. They view it as an ordinary statute, and esteem him as cleverest who can by any chicane most successfully evade its letter without regard to its true spirit and meaning. Precedents from such a source the nation will be slow to follow. K the people of that State did as he says, it only shows that they effected a revolution against law and principle by pacific means. But suppose a minority had got possession of the State Government under the old, and refused to recog- nize the new Constitution, would not the judiciary and the POWER OF MAJORITIES OVER CONSTITUTIONS. 23 Federal Government have been compelled to recognize tliat minority as wielding the onlj^ legitimate government; and would not the whole aftair have resulted like the Dorr rebel- lion ? In what did it diftcr from the Dorr rebellion, except that it was countenanced by an act of the Legislature ? That act was worth nothing, was a mere nullity, and could give the proceeding no aid, if, as he says, it was contrary to the then Constitution. The Legislature derived all its power from that Constitution, and could do nothing violating its command. Mr. Buchanan says, in order to discriminate his dogma from the Dorr rebellion and the Topeka Constitution, that the " su- preme and irresistible will of the majority must be expressed in a lawful manner." How then is the speedy promised over- throw of the Lecompton Constitution to be brought about. The people themselves, he says, can't do it for the want of law- ful authority, and, if they can, they have already killed it by their vote on the fifth of January. The Kansas State Legis- lature can't do it because the Lecompton Constitution forbids its being done, and a Legislature organized under and deriving all its power from that instrument surely cannot do anything legitimately which it forbids. For a like reason the Lecomp- ton Constitution derives no force or sanctity from the ftict that it was framed under the auspices of the Territorial Legislature, that body not having been authorized by Congress, and having no legal authority so to act without the previous express direc- tion of Congress. The President might have found a more valuable precedent in the case of Virginia, which altered her Constitution, by a convention held under legislative sanction, when the Consti- tion did not provide any mode of revision or amendment. It is not remembered whether a popular vote was first taken on the question of having a convention, as an initiatory step to the call, or whether it was called by the Legislature alone. If the first, the proceeding was right on principle, but if the last it was wrong and should never have occurred. With our fixed American ideas as to the right of a people to remodel their frame of government, when a constitution contains no provi- sion for its revision or amendment, it impliedly admits the right of the people to do either in any mode that fairly ascer- 24 POWER OF MAJORITIES OVER CONSTITUTIONS. tains the settled will of the majority. To ascertain that will through legislative action is as legitimate and more proper than any other. If the majority voted for a convention, then it was legitimately called. But it was not properly called, if it was done by the Legislature without such previous popular sanc- tion. There would, however, be no violent strain of principle to infer a power in the Legislature to make the call. It is an implication growing out of mere necessity, the Constitution not having provided any mode of revision. The power ex ne- cessitate would equally arise under a constitution which prohi- bited all revision or postponed it for an unreasonable length of time. This, however, could not be properly called a legal power ; it would be only an exercise of the inalienable right of rebellion or revolution. A change so effected would be to all intents a revolution, though done ever so peaceably and with ever so much unanimity. A change attempted upon a constitution in violation of a fair and reasonable provision for its amendment, and in pursuance of the principle of the Pres- ident's dogma, would be utterly illegal and authorize armed resistance. This would always and everywhere have been heretofore held for sound doctrine by constitutional lawyers, and there is little venture in the prediction that, so soon as the Lecompton Constitution is clamped upon Kansas, it will be upheld as sound doctrine by the unanimous voice of the South. It will be clearly right in contending that when a constitution provides a reasonable mode for its amendment, all other modes are prohibited, and any attempt at them is nothing but re- bellion. The President suggests in his message that Congress may, in the act admitting Kansas, guarantee the right of the ma- jority of its people to abolish the Lecompton Constitution at pleasure, and says he sees no objection to its being done. The objection is that Congress has neither right nor power so to amend that Constitution. All that Congress can do is to recognize or reject it as an entiret3^ To attempt such an amendment would be intervention with the affairs of the Ter- ritory of the most obnoxious character. It would not only violate law and principle, but disregard Congressional and party pledges. The only mode in which such a thing could POWER OF MAJORITIES OVER CONSTITUTIONS. 25 be rightly done, would be by a submission of tlio Constitution as amended to the popular vote. That, however, will not be done, because then there would be no excuse for not again submitting the Constitution as it is to that test. There is a great fundamental American principle which has strong bearing on this Kansas controversy. It is one about which the nation is entirely unanimous ; one whose perfect justice all recognize ; and one whose sanctity is consecrated in the warmest sympathies and aiFections of the American heart. It is that principle which declares that, whenever the minority and the majority come in conflict in the exercise of lavrtul power, the majority shall and the minority shall not rule. This great principle should be sacred with every American, and he should always be ready to defend it with his blood. It espe- cially applies — its application is of most importance — in the formation of a constitution. There, beyond all other occa- sions, it should prevail; for there it is permanently settled which of the two, the majority or the minority, shall govern. To the violation of the principle upon so important an occa- sion no American should give countenance. Its proper ob- servance should promptly settle the Kansas controversy. The national feeling is so strong on this subject that it cannot be tampered or trifled with. 1^0. n. Part of the Arraignment of the Democratic Parti/, made hy a large Convention of Delegates from tlie Conservative Party of Kentucky, in their Plaiform, adopted in Fehrunry, 1859. Through its party chief, and other leaders, it proclaims its execrable dogma, that no majority of the people can give permanent protection to minorities or individuals against the unjust aggression of party majorities by means of their great governmental compacts, their written constitutions. In this land of constitutional liberty, to this nation of freemen who were taught, by the great founders of the Government, that constitutional liberty was the only liberty worth the having, 4 26 POWER OF MAJORITIES OVER CONSTITUTIONS. the party proclaims, througli the official messages of its Presi- dent, this new dogma, destructive of the stability and value of all constitutions. It proclaims, through him, the doctrine of the unrestrainable power of temporary/ party majorities. To prove that they cannot be restrained to even a fair and reasonable mode prescribed by a constitution itself for its own alteration, President Buchanan says : " The will of the majority is su]3reme and irresistible. It can unmake con- stitutions at pleasure." He argues at length to prove that majorities cannot be confined to any particular mode, how- ever reasonable, in altering, revoking, or re-making consti- tutions. Thus the modern progressive Democracy, through its Presi- dent and other leaders, openly avows this new creed trea- sonable to the cause of civil liberty, of which it has long been suspected, denying all sanctity or value to constitu- tions, and viewing them with disfavor, as unnecessary tem- porary restraints upon the divine inalienable rights of majori- ties. This part}^ finds no cause for veneration and respect in the fact that our constitutions are the great organic compacts and covenants of the people with each other, when alone they are acting in their real sovereign capacity; that they are the great measure of right between majorities and minori- ties ; that they are the only restraints against despotic gov- ernment that is upon the power of a party majority; and that they afford its only security to individuals or minorities in the enjoyment of private property, freedom of conscience, freedom of speech, freedom of the press, and all other privi- leges which are the birth-rights of American freemen, and which are not the mere concessions of majorities. The citi- zen must be secure against persecution by the majority for his religious or political opinions, and secure in the enjoy- ment of his right of private property, or there is no civil liberty. He cannot be so secured but by inviolable written constitutions. This party teaches that our nation, ever since its existence, has been absurdly engaged in the repetition of futile efforts to secure civil liberty by means of inviolable POWER OF MAJORITIES OVER CONSTITUTIONS. 27 constitutions, placed beyond tlie immediate reach of tlie heated vindictive passions of temporary majorities. For con- stitutional liberty we are invited to substitute the arbitrary government of the immaculate Democracy. The indepen- dence and equality of the States, the compromises of the Federal Constitution, with its protection to local rights and institutions, are to be subjected to the will of the majority either of the people or of the States, or of both. The only barrier against the consolidation of all power in the Federal Government is to be yielded up to this new dogma, the inalien- able, irresistible divine right of the majority. 28 THE HIGHEE LAW. CHAPTER III. December 11, 1861. THE HIGHER LAW. An unbridled Democracy was not the government devised for 118 by tlie fathers of the Republic. They have left abun- dant evidence to prove that they thought the unrestricted will of the majority was among the worst forms of government. They launched their experiment with the fond hope, if not firm belief, that they had provided ample checks and balances to preserve the equipoise between power and liberty, and to prevent the majority from persecuting the minority, and also to prevent parties from aggrandizing themselves by monopoly of the powers of government. But unfortunately the practical working of the government has proved the hopes to have been delusive that were based upon most of these supposed checks. The independent Presidency, Senate, House of Representa- tives, and State Grovernments, from which so much was ex- pected as a mutual counterpoise, have by party machination been all amalgamated together in aid of unstinted party power. Of all the intended checks the one principally relied on was the efficacy of a written constitution, which has also proved the most durable in practice, being the only one left us after seventy years of party strifes. What is the value of this last remaining check remains to be seen, if its insufficiency is not already proved. This being the principal reliance, the fathers were no way negligent in inculcating the inviolable sanctity of the Consti- tution. llTot content with a presumable popular appreciation of the necessity for obedience to law under a government of law, they caused the whole nation to declare : " We, the peo- ple of the United States, do declare that this Constitution shall be the supreme law of the land." Still not content with the presumable willing obedience which every good citizen would THE HIGHER LAW. 29 pay to such an august command, tliey took care that nearly every Federal and State official, before assuming office, should be bound by solemn oath to maintain the Constitution in that, its asserted supremacy. The national apathy, in the presence of the portentous re- bellion against the Constitution now going on, is filling our best men with despair. Appalled by the magnitude of the danger, they passively trust to the delusive hope, that, after the present storm, there will be a revival of the former reve- rential love for the Constitution, and that it will be recon- stucted into its needful benignant supremacy. After the degrading, desecrating destruction now threatened, the diffi- culty of reconstruction will be immense, even if practicable. The difficulty may be aptly compared to the impossibility of restoring a violated chastity. The inviolable sanctity of the Constitution should be like that of virgin purity. It is equally required by both, to secure that respect so necessary to pure, perfect love. Such love for the Constitution is indispensable to its supremacy, for without that popular support we have no efficient conservative principle in our frame of government. Such love is its very life-giving principle. Without it, civil liberty has no protection and can have no abiding place among us. Instead of anything being done to keep alive that former love and fealty, which is the only possibility for re-establishing the Constitution, our public men, with few exceptions, are all devoting their talents to the inculcation of novel theories of government, new dogmas which, if acquiesced in by the nation, must permanently destroy every vestige of civil liberty. Prominent among these dogmas is one probably embracing all the rest — at any rate,' sufficient of itself to subvert all semblance of a well ordered, well secured civil liberty, as it strikes at and supersedes the very foundation of all permanent constitutional government. It is the dogma of " the higher law." When this dogma was first enunciated in the Senate, it met such annihilating censure that its putative fother, Mr. Seward, shrank from the imputed paternity of the foul thing and said, with probable sincerity, that he had been misreported and 30 THE HIGH EE LAAV. misunderstood. According to present recollection, lie earn- estly denied having advocated the idea of there being any law paramount to the Constitution. Yet the existence for practi- cal use of such higher law is now being habitually advocated in and out of Congress, and is receiving the imposing sanction of the President, the Cabinet, and military commanders. That law is now being daily enforced in disregard of the constitu- tionally guaranteed liberties of the nation, causing the present prostration, and threatening the permanent destruction of the Constitution itself. It is full time that this higher law, with its vast proportions, should be carefully looked into, to see what it is, whence it comes, by whom ordained, and who its rightful expositors and administrators. Its advocates rather shrink from calling it by that original name, first given by its putative father. The damaging rebuke received at its first enunciation has induced its patrons to seek for it a more propitious name, one at least which has not yet incurred so much of poj)ular odium and obloquy. It is vari- ously designated as the law of necessity — as the law of war — the law of self-preservation. But under whatever name, it is now claimed to be a law paramount to the Constitution, and may well be called the higher law — the supreme law of the land. As such it is now being enforced upon the nation. Whence this higher law ? It comes not from the Constitu- tion, being repugnant to its every letter, its whole spirit, its entire theory. The Constitution proclaims itself to be the highest law and declares that whatever governmental power is not therein granted " is reserved to the States respectfully or to the people." We all know that neither the States nor the people have ever created, or delegated power to create, this higher law. There is no other conceivable source from which such power or law can be rightfully derived. The na- tion has never been so uniformly unanimous, or at least nearly unanimous, upon any political question as upon the principle that in this country there can be no rightful governmental power unless derived from the States or the people. Whence, then, this higher law, which presumes to annul the solemn national fiat proclaiming the Constitution as the highest law of THE niGHEE LAW. 31 tlie land ? Let its advocates speak ; let them tell us whence it is derived. As it obviously cannot have a human origin, com- ing neither from the people nor the States, it must be derived from some superhuman source. That being so, then does it come from above or from heloiv ? Let its advocates speak ; let them tell us ; let them prove to us from which. When first announced in the Senate by its putative father, something he said induced the belief that he tried to derive it from above. Then came the memorable rebuke to any such arrogant attempt. Henry Clay, after bowing his tall form and lowering his voice, whilst humbly recognizing the supreme power of the great ruler above, slowly straightened himself to his full stature, and, turning to Mr. Seward, with flashing eye and the most emphatic emphasis of his sonorous voice, said : "But when and by whom did the great ruler send this law on earth ? When and where was the Senator from I^ew York made his vicegerent for its utterence and exposition ? I de- mand an exldbition of his crcdeMtials." Mr. Seward never produced those credentials — they still remain to be produced by him or his disciples. In their ab- sence we may well conclude that the law is neither of divine nor human origin, but by necessary inference nmst have come from below. It is for the nation to say whether our all-glori- ous Constitution shall be upset by any devil-derived law. As his Satanic Majesty is the reputed father of all evil on earth, we may well concede to him the exclusive honor of the pater- nity of this higher law. Let Mr. Seward and his disciples ac- knowledge themselves his Majesty's representatives, or cease their effort to substitute this infernal engine of tyranny in lieu of that Constitution, whose supremacy they have all sworn to support — in whose abiding supremacy our liberty must "for- ever live or know no life." So, also, of their law of necessity — their law of war — their martial law — their silent leges inter arma — Xhoiv salus populi suprema lex — their vox populi., vox dei — their mob law — their lynch law — their committee-of public- safety law — they are each and all part and parcel of this higher law, or, more accurately to speak, they are this very law under difterent names. Like it, they are each parcel of the imme- morial tyrant's plea for crushing liberty. As said by a Con- 32 THEHIGHERLAW. gressional committee twenty years ago, " when tlie nation is prepared to yield to siicb. a tyrant's plea it will be fit only to become tlie tyrant's slaves." Martial law, State necessity, liigber law, are all attempted sub- stitutes for that temporary dictatorship which was a part of the Roman Constitution. It was entirely under the control of an hereditary Senate, worked in its interests, and may have served to sustain its power over the people, but ultimately proved too strong for both Senate and people, consigning both to ignomin- ious servitude under the tyranny of military despotism. Does the virus of such arbitrary military power lurk anyr^here in our political system ? Even President Lincoln and Attornej^- general Bates have the grace fully to admit that it does not. In their arguments to prove Presidential power to suspend the privilege of the writ of habeas corpus, they say : " In England it has grown into an axiom, that the Parlia- ment is omnipotent. * * * In the formation of our National Government our fathers seem to have been actuated by special dread of the unity of poiver, and preferred taking the risk of leaving some good undone for lack of 'power in the agent, rather than arm any governmental official with such powers for evil, as are implied in the dictatorial charge, " to see that no damage comes to the Commonwealth." That " dictatorial charge" was the very form of words with which the Roman Senate always appointed and empowered a dictator under their constitution. With this example full in view, with perfect knowledge and mature consideration of every benefit that could ensue from the existence of such power, during possible exigencies of great State necessity, the framers of the Constitution determined to forego all such benefit rather than risk the exercise of "such powers for evil." Hence, as Messrs. Lincoln and Bates say, the nation expressly refused "to delegate all its powers to this Government, in any or all its departments." The philosophic statesman Burke went still further and denied that even a nation could rightfully create arbitrary government. He said all dominion of man over man being the result of divine disposition, and arbitrary power in man over man being contrary to divine beneficence, " if a peo- ple should be mad enough to make an express compact releas- T II E II I G U E R L A W. 33 ing their magistrate from his duty, and should declare fheir lives, their liberty, and their property dependent upon, not rules and laws, but his mere capricious will, that covenant would be void." But the hiofher law advocates insist that the nation had no right to withhold any power from the government it created ; that it had neither right nor power to restrict its own agents. In other words, they deny the nation's power of self-govern- ment; — for denying the right to withhold power from its officers, in its great organic law, is eifectually to every intent denying it the power of self-government. It leaves the nation the only alternative of creating a government that is or may become despotic, with no choice of any other ; which is pure negation of the right of self-government. Whence this nega- tion to freemen of the rightful power of self-government ? Surely, according to our American ideas, according to all the teachings of our fathers, it does not come from above; — full surely it can only come from below. They claim that necessity is the substratum of their higher law" — that necessity is a law unto itself, to be expounded and administered only by its own hierophants, acknowledging no subordination to heaven, or to hell, or to the Constitution, or to the nation. What then is this thing called necessity, which being no definable, compre- hensible law itself, which having no law, is still the substratum, the foundation of the highest law of the land ? What can it be but the satanic thirst for revengeful persecution by a major- ity against a minority ? Who are the exponents of this law — who its enforcers ? Certainly not our government officials ; for they are all sworn to support the supremacy of the Consti- tution over that and all other pretended law. Whenever they forget the obligations of that oath, by lending their aid in favor of this thing necessity, or any other power adverse to the Con- stitution, they not only commit perjury, but that foulest of all treasons against a Republic — that is, treason against its Con- stitution. For as the preservation of its liberty is the most important, the most vital interest of a Republic and the Con- stitution is the sacred depository and conservatory of its liber- ties, the destruction of its Constitution is the worst injury that a Republic can possibly receive. There is not, there never has 5 34 THE HIGHER LAW. beeh, there never can be any State necessity in a Republic near so great as that of preserving its Constitution from lawless violence. It is there, in its Constitution, that are garnered up all the sacred principles of liberty, all the enlightened affec- tions of freemen for their government. Whoever lays his sacrilegious destroying hand on that great sanctuary of free- dom, is guilty of the worst, the foulest crime that can be com- mitted against a Republic. It is to constitutional liherty alone that an enlightened freeman can pay the heart-warm devotion of an unstinted loyalty. It is to that, and to that alone, among human powers and institutions, he can yield a proud, manly, willing, devotional obedience. It is by that he is bound in devoted, patriotic affection to his country. Hence its destruc- tion, or even the dishonoring disregard of the Constitution, can never be a rightful or admissible means in the attainment of any supposed national benefit. The end to be attained can never possibly be worth such means. Such being the needful, beneficial sanctity of the Constitution any alleged necessity for violating the Constitution should be immediate, imperative, and indisputable. This cannot be pre- dicated of any existing necessity. That the present unpro- voked, infamous rebellion is hard to be put down, may be conceded, and cannot fairly be denied. But that the existence of the people of the loyal States, or of their Government, is in any sort of peril, is what no truthful man will considerately afiirm. "We are, in round numbers, twenty millions against five. When we consider our greater condensation of popula- tion, our greater facility of railroad and water transportation, our exclusive naval power, our greater pecuniary and other resources for the equipment and maintenance of armies, this disparity of mere numbers should be doubled in estimating the comparative military strength of the two sections, and, upon a very low estimate, the ratio fixed at the rate of eight men to one. It is merely preposterous to surmise that the eight can be conquered by the one, though the one in a defensive war may long keep the eight at bay. Yet, the very life principle of the law of necessity, if such law there be, and if it have any rational basis, is, that the danger of our irretrievable ruin shall be immediate, imperative, indisputable. "What will T H E H I G 11 E R L A W. 35 merely expedite or facilitate putting down the rebellion, falls far short of the conditions of the higher law problem of necessity. The production may be safely challenged of a single instance from all history, where necessity required the prostration of the organic law, the Constitution of a Republic, to ensure its safety, or where one ever was saved by resort to such means. Our own national experience on this subject is large and instructive. If ever there was an occasion justifying and call- ing for the use of arbitrary military power in necessary self- preservation, it must have been during our long Revolutionary war, when a feeble people were struggling for very existence against a powerful enemy abroad and tens of thousands of traitor tories at home. Yet the struggle was triumphantly carried through without resort to any such tyrannical expedient. This, too, though the then j)eril and necessity were certainly tenfold, probably an hundredfold what they now are. The bravest, the most sanguine of that day must have doubted the success of the Eevolution ; whereas there is not a single intel- ligent man of the North, however timid, who entertains the slightest fear that the North will be conquered by the South. This is a war of the vast majority to conquer the obedience of a comparatively feeble minority. The necessity alluded to can never arise in such a war in behalf of such a majority. It never can be a necessity such as to justify the interposition of the alleged law of self-preservation. The physical means of self-preservation are superabundant, without any such inter- vention . The Virginia Constitution, adopted amidst the perils of the Revolution, when its authors must have felt that they were acting with halters round their necks, declares that " the priv- ilege of the wi'it of habeas corpus shall not in any case be sus- pended." So also during the last war with England, when, after the battle of Waterloo, she was left free to direct her whole tremendous militar}^ strength against this country, Pres- ident Madison resorted to no aid from the exercise of arbi- trary powers. This, too, though disloyalty was rife everywhere throughout the land ; the Federal press and leaders habitually denouncing the war and the administration ; Long Island Sound 36 THE HIGHER LAW. studded niglitly with blue light signals to the British fleet ; nearly all New England disloyal, rendering the Government no efficient aid, but meeting in convention to inaugurate threat- ened secession. This attempt at secession was the original bad example for all the pernicious heresy and treasonable acts of secession which have since followed. If it had been carried out, and not stopped as it was by the peace, it would have been as much worse a rebellion, as much worse a violation of patriot- ism, than the present rebelhon, as is an army mutiny in the pres- ence of apowerful enemy more blameworthy than mutiny in time of peace. But all this foreign and domestic danger did not shake President Madison's fealty to the Constitution. He did nothing, he attempted nothing beyond the scope of his plain legitimate powers. In the presence of all this disproof, and in the absence of any example to prove the present state of things as an existing overruling necessity for trampling on the Con- stitution, all such assumption must sink into the category of insincere, unfounded pretext. Enormous as are the many violations of the Constitution already perpetrated, their whole result, in present or prospect- ive evil, probably does not exceed what will ensue, if the Pres- ident adopts the policy in relation to slaves urged upon him by the higher-law men, under the lame pretext of necessity. Our ultra politicians will be very unwise to measure the feel- ino-s of other men on such a subject by their own. A wise man said long ago, that a religious fanatic was the most blood- thirsty, remorseless animal that God ever sent on earth ; that the ravening rage of a tiger could be surfeited, but there was no surfeiting the appetite for blood of a religious fanatic, for like all bad human passions it increased with indulgence. The wise man was wrong. The religious fanatic is only the proto- type of his full brother, the political fanatic. I^ot the Tor- quamadas of the Inquisition, nor the Ferdinands of Spain^ nor the Eings of France and England, ever perpetrated greater bloody atrocities in the name of religion, than did the political fanatics of the French revolution in the name of liberty. They were the greatest poltroons of the convention who inflicted the reign of terror on France, and this fact may serve to indi- cate those of our politicians who will be most apt to try to T n E H I G II E R L A W. 87 establisli another like reign of terror in this country — a reign of terror involving the probable extermination of the larger part of the negro population, instituted by political fanatics in the name of negro philanthropy. The most obvious result of the proposed policy is the inciting of slave insurrection, accompanied by the mutual destruction of a large part of both the white and black population of eleven States, together with the destruction of all destructible prop- erty. Is this a legitimate means for putting down even this rebellion, detestable as it is ? Can Congress use such means for that purpose ? Can the wanton massacre of millions of our 0"\vn people ever be a legitimate means for putting down a rebellion ? If not, then neither can its agents, the President and the commanders of our armies, use such means. Their powers for suppressing the rebellion, being all derived from Congress, are necessarily confined to such as it has given and can constitutionally give. During General Taylor's march into Mexico, the Camanche Indians made a destructive raid into the country, and the Mexicans applied to him for protection, alleging they could not protect themselves because their young men were all with the Mexican Army. Now here was an efficient aid to the General in those Indians, not even of his own seeking. How did he act ? Obeying the instincts of the manly heart of a Christian soldier, he not only rejected such aid against even the foreign enemy, but actually caused the marauders to be driven ofi*. What a contrast between the magnanimous soldier and some of our cold-blooded politicians. To what good end suppress the rebellion of the eleven States, by means which will desolate both their population and their property ? What will they be worth to the other States when thus destroyed ? They would be worthless, besides weakening the nation by the presentation to foreign enemies of thousands of miles of assailable defenceless frontier. In the loss of mil- lions of our population, we shall destroy billions of national wealth, together with the most magnificent market the world aflbrds for the products of i^orthern industry. MANIFEST DESTINY. CHAPTER IV. January 19, 1858. MANIFEST DESTINY. The following is tlie outline of a proposed amendment of the Federal Constitution : " Congress may permit the secession of a State or States from the Union, but shall not admit any new State into the Union composed in whole or in part of what is now foreign territory; nor shall there be any future acquisition of territory." This amendment contemplates the relieving us from excess of territory and population, and also a reversal of the policy of acquisition so recklessly pursued during the last twelve years. During that period annexation and conquest have added a third to our territorial bulk. This addition was deemed un- necessary and unwise by a large part, if not a majority, of the intelligent men of the nation. Among them were those saga- cious, practical statesmen, Henry Clay and Martin Van Buren, who, whilst the rival chiefs of the two great political parties, concurred in promulgating the doctrine that we already had too much territory even before the annexation of Texas. That annexation, which induced the acquisition of California, proba- bly never did receive the deliberate approval of a majority of the nation. It was the result of one of our party strifes for the Presidency. It was the coerced price paid by the Demo- cratic party for the support of certain Southern States. The controlling motive with those States w^as the expected increase of Southern political power. This hope has been frustrated by the annexation of California, which has made the free State preponderance more decided than it was before. This result, together with that of the experiment on Kansas, proves the futility of all efforts on the part of the weaker MANIFESTDESTINY. 39 section to increase its comparative strength to the prejudice of the stronger, by any process of mere legislation or annexa- tion. The South is in a doomed minority, and it is mere folly to hope or attempt to extricate it from that position by ex- pansion. The example of California sufficiently proves that, under the influence of the " popular sovereignty principle," any extension into ]\Iexico will but add more free States. As to the annexation of Cuba, there is small chance for that, even if it were certainly desirable for the South itself. South- ern men diifer among themselves as to that. Some of them think emigration has been the great bane of the older Southern States, and that its annexation would immediately cause a drain of wealth and labor from those States, which no col- lateral or political benefits could compensate. Be that as it may, an effort at the annexation is not worth making, in view of the difficulty of purchasing from Spain, the impracticability of obtaining a two-thirds vote of the Senate for a treaty pur- chase, and the almost impossibility of a direct or indirect con- quest of the island. Without the consent of England and France, its conquest is next to an impossibility. Will no one poll the Senate, and thereby prove to the President and the South that its annexation by treaty is also an impossibility ? If wrong in all this, still the Northern States have ready at hand the facile means of indemnity for three such acquisitions as that of Cuba by the annexation of the British colonies on our Northern borders. It is understood that English policy in reference to those colonies has undero-one a total chano-e. England no longer means to attempt to hold them by force. She has intimated her willingness to emancipate them, when- ever they shall, with anything like unanimity, desire the sepa- ration. That unanimity will come of itself so soon as the con- trolling influence of wealth and intelligence is in the natives of the colonies. Under the active enticing influence of the Northern States, it would come very soon. Then, under the example set by the South in the case of Texas, it will require a bare majority vote in each house of Congress to annex five or six new free States. It is an unequal, hopeless game the South will have to play in an effort toward producing anything like an equality in numbers between the free and slave States. 40 MANIFESTDESTINY. Attempt to subdivide Texas, and you will be met by a sub- division of California, Oregon, Utah, and Nebraska. In case of a separation of the Union upon the slave line, the annexation of the British colonies is a mode of indemnity to which the North would resort, with the probable connivance of England. This would secure to the North a vast prepon- derance of strength over the South — so much so, that, in con- nection with the want of ability in the South to create a com- mercial or naval marine, the latter would be, and irreclaimably remain, a feeble and tributary power. The tribute which Southern agriculture is now supposed to pay to Northern capital and shipping would still have to be paid in larger amount and more aggravating form. The South would be compelled to buy naval protection somewhere. For obvious reasons, the North would underbid the balance of the world. Union with the South is worth greatly more to the North than annexation of the British provinces, even with that result. The North will not therefore seek such annexation at the cost of disunion, unless it becomes convinced that the South is seeking annexation as a mere preparative to secession, or as a means of sectional political aggrandizement. All things considered, the South can well afford to strike a bargain with the North against any further acquisition of territory. Both North and South can afford to view the pro- position nationally, without any sectional bias. It is high time for all our statesmen to give up sectional agitation, and care for the permanent welfare of our whole nation as durably one and indivisible. It cannot be rash to assert that we now have too much terri- tory, when such men as Mr. Clay and Mr.Yan Buren, with the concurrence of at least a moiety of the national intelli- gence, thought so even before the acquisition of Texas. Our territory doubles in extent the whole of the following coun- tries, which contain a population of two hundred millions : Great Britain, Ireland, France, Spain, Portugal, Italy, Switzer- land, Germany, Austria, Turkey in Europe, Poland, Prussia, Belgium, Holland, Denmark, Norway, and Sweden. Those countries embrace only a million and a half of square miles, whilst we have upwards of three millions. Can any sane man MANIFESTDESTINY. 41 believe that all those countries, even if they had but one language and religion, could be properly governed by any one government? Yet we have among us men, other-wise sane, who profess to believe that our system may advantageously embrace an indefinite extent of population and territory. This is mere indefinite nonsense. Considerate men arc doubting whether our system is adapted to the proper government of even a moderate amount of dense population, like that of France, for instance. They say that the result of our experi- ment thus far gives no guarantee for permanent well-doing. They point to the experience of last year, when we had vigil- ance committees ruling California with Wnch law, the north- west territories governed by martial law, Utah ruled b}" priest despotism, and civil war in Kansas. They point to those unpunished, unpreventable mob violences that have disgraced every large city in the Union. They point to the open disre- gard and unpunished violations of our neutrality laws. They point to the rapid demoralization, through party excesses, of every department of our Federal, State, and Municipal Gov- ernments, They point to what fraud and violence have already accomplished upon the modern ballot-box, rendering it the foulest of corrupt things. But, above all, they point to the decay of nationality and patriotism among us, ascribable mainly to the too great extent and the diversified sectional interests of our country. They may not be altogether right in their foreboding fears, but they are certainly so far right as to prevent a blind, unreasoning confidence in the efficacy of our system for properly governing a very large population. If such be the justifiable doubts, from our experiment with a sparse population and a large majority of the voters property- holders, all must fear the test of a large, dense population, with non-property-holders for a majority of the voters. It would seem that all rational men ouo;ht to ag-ree in the opinion that we have vastly more territoiy than we can prop- erly govern, that a stop should be put to further acquisition, and indeed that we should be looking ahead as to the mode of getting rid of our superabundance. But there are some among us who, compelled to admit that we have more than enough for our own use, still contend that we must go on eon- 6 42 MANIFESTDESTINY. quering and acquiring for the sake of other people. These are the apostles of a new national policy, which tliej call " mani- fest destiny," who wish to use our nation as the armed propa- gandist of our political institutions. These soi disant philan- thropists encourage no enterprize for the amelioration of other people, unless there is a little gainful robbery connected with it to awaken their benevolence. Some who have had the honor of passing through high official position, whilst ashamed to justify the petty larceny of private piratical expeditions, shame- lessly avow their advocacy of grand national robberies, be- cause, as they say, that it is " manifest destiny." "What though this new policy sinks us from our proud position into that of a nation of pirates and robbers, still we must expand because it is "manifest destiny." This is to be the outcome of the christianizing influence of our vaunted religion, of our supe- rior civilization, of the progress of our model Republic toward human perfection — we are to become a nation of pirates and robbers, merely because it is "manifest destiny." Like the robber hordes of the North, who desolated Western Europe during the Dark Ages, we are to cast ourselves upon and rob all the defenceless people of this continent, because that is "manifest destiny." The founders of the Republic gave us as a motto for our national guidance, "Equal and exact justice to all nations, entangling alliances with none." Under a more or less rigid observance of this sacred precept, at least without the perpetration of any great national crime, we have, with un- precedented rapidity, attained a position of strength, prosperity, and respectability that renders us the envy and admiration of the world. But this is not progressing fast enough ; we must, at the bidding of these apostles of the " manifest destiny," abandon the slow pursuits of honest industry, and take to rob- bing. Mohammedan-like, we must, scimetar in hand, propa- gate our political Koran. A propensity to rob and an insatia- ble greed for land are the great vice of our race. If we have attained a civilization worth propagating, it should be shown in the restraint, not the indulgence of this vice. A man who freely indulges his appetites will always pretend to believe that he is pursuing his "manifest destiny" in becoming a glutton and a drunkard. M A N I F E S T D E S T I X Y. 43 Under the new policy we should progress downwards to national infamy, followed by the scorn and abhorrence of all Christendom. We should exchange peace and prosperity for never-ending strife and war. The result of Russia's recent most benevolent, disinterested efforts to civilize the Turks is a teaching example of how far we would be permitted with impunity to propagate civilization by the sword. With equal disinterested benevolence, England has for centuries been pro- pagating civilization by the sword over India. The outcome of that is the recent Sepoy mutinies. Her only perceivable gain for all her robbery and oppression of those nations has been the constant vent afforded for the restless, disturbmg elements of her surplus population. The best mode for indi- viduals or nations to improve their neighbors is by the force of good example, not by obtrusive interference with the con- cerns of others. Disinterested generosity is appreciated and reciprocated in private life ; but such generosity, or any sort of self-sacrifice, is wholly unkno-wn among nations in their in- tercourse with each other. The example of such magnanimity has never yet been given by any nation ; and, if it had been, would never have found an imitator. To overlook or neglect the peculiar interest of our country, for the improvement of the whole human race, is to forget the higher duty of patriot- ism in Quixotic pursuit of a visionary phantom of Utopian philanthropy. For a father to disinherit his own children, and bequeath the whole of a small fortune for the general amelio- ration of mankind, would be no grosser folly than for a nation to neglect its own interests and devote its energies to the gene- ral improvement of the whole human race. ^N^othing need be said as to what is necessary for maintain- ing our national independence. Our present strength and geographical position place that beyond hazard. We need no increase of strength for self-preseiwation. Next to independence, according to our ideas, the greatest boon to a nation is civil liberty. Longevity to that is our great- est if not our only national solicitude. That is the great prob- lem yet to be solved. Its successful solution involves not merely our permanent happiness, but also the greatest benefit which the nation can in any way confer on the balance of the 44 MANIFEST DESTINY. world. The guiding intelligence of tlie day should be invoked to its serious consideration. That is the high national concern which the founders of the Republic told us always to keep in view in the pursuit of our proper destiny. The most prominent great danger in our way is the present excess of territory and future excess of population. When a nation has enough of territory, with sufficient diversity of soil and climate to afford profitable employment to its people, for an indefinite period, it needs no more. "WTien a nation has sufficient population to secure its independence, it needs no more. Any more of either territory or population is an inju- rious excess. Such excess but adds that much to the difficulty of good government. This, which is true as to every nation, is especially true as to ours, wishing as it does to enjoy in per- petuity the blessings of a republic. The practicability of a republican government over a large country of dense popula- tion is that about which every intelligent man has more or less of doubt. The commonest prudence will dictate the neces- sity of postponing the experiment as long as possible. But, apart from that, excess of population is a great grievance. It is the greatest grievance under which the nations of Europe are now laboring. Notwithstanding the great amount and variety of employment which England affords to labor, and her constant depletion by emigration, about a fifth of her popu- lation are paupers. Ireland is said never to have worn an aspect of such apparent prosperity as since the famine, the cholera, and emigration have depleted her of two millions of her population. A majority of the people of most European countries are in perpetual laborious strife for bare black bread, and their respective governments in all ways encourage their emigration. When a majority of the voters in a republic are suffering for mere bread, what will be the issue ? Our present population may be stated at twenty-eight mil- lions. According to our ratio of increase, this, in twenty-five years, will give us forty-six millions, equal to the present popu- lation of both Great Britain and France. In fifty years we shall have upwards of a hundred millions. How will our sys- tem answer for the proper government of so huge a population as that ? Every dictate of prudence prompts us to postpone, MANIFESTDESTINY. 45 as long as possible the day for putting it to so severe a test. But if tliat is not enough to startle us into serious thinking, let it be remembered that during the life-time of many now living we shall have a population of two hundred millions, nearly equal to the present population of all Europe. The proposed amendment of the Constitution points to an efficient mode for eifecting the desired postponement. It closes the door against an increase of the evil, by means of future acquisition of territory, and opens a door to facile relief against excess both of territory and population. If private information be reliable, the people of California, and probably also the people of our whole Pacific border, are anxiously awaiting the day when they shall feel strong enough openly to declare themselves in favor of secession. There is said to be, even now, a large party in its favor. The judicious among them are said to be holding them back till the Federal government fortifies their harbors, suj^plies them with arsenals, and provides railroad communication with the East. Let us do all this and more for them. Whenever they feel prepared to go ofi" to themselves, let us give them also a small navy, and let them depart with an affectionate, fraternal farewell. In ten years from this time they will have a white popula- tion equal to at least two-thirds of that with which our fathers declared independence, and struggled through a seven years' war to obtain it. Their position will be one of much greater security. They will be accessible to no force they need fear, except their brethren on this side the mountains, from whom they can well anticipate aid instead of aggression. If the feeling alluded to, does not already exist, it is certain to come before the lapse of ten years. Their obvious local interest clearly points that way. The ambition of their lead- ing men will urge them in that direction. Those men will prefer the masterdom of a new and stirring confederacy to playing Governors, Senators, or Representatives for remote, unimportant States, in a huge confederacy like ours. Their minds will be dazzled with the prospect of a rapid influx of enterpriziug population from all parts of the world. Their imaginations will gloat over the numerous valuable islands in the Pacific, as the future rich colonial appendages of their 46 MANIFESTDESTINY. country. "With the proud consciousness of undeveloped en- ergy, they will hurry forward the day of separation, as does a young man his departure from the restraints of the paternal home. We on this side of the continent will probably not attempt to coerce their stay in the Union. To prevent danger on that score, let us, by an amendment of the Constitution, pre- pare the way for their peaceable exit. Let us not repeat the great folly of England in attempting to hold what we cannot properly govern. Let their departure in every way be a peace- ful and a friendly one. Let it be an amicable partition among brethren of the paternal inheritance. Let us give them for their share all west of the most eastern range of the Rocky Mountains. This will relieve us of near a third of our territory. The steady large emigration from us to them will materially post- pone the day when we shall have to endure the nuisance, and our government stand the strain of an excess of population. It will also relieve us of most of that restless, unquiet class of population from which come mob agitators and fillihusters. What a magnificent foundation for a great empire it will be that we shall thus yield to them I They cannot fail to become the dominating power over the broad Pacific, and the principal recipients of the wealth of its great commerce. The only fear for them will be that their career will be too rapid and bril- liant for laying secure and enduring foundations of civil liberty, and forming a sound national character. But, be that as it may, let us give them free and early leave to work out their destiny in their own way ; being very sure that we shall thereby achieve a great benefit to ourselves. "We shall thereby be the better able securely to work out our own proper destiny ; that "manifest destiny" which the great founders of the republic intended for us as the conservators and perpetuators of civil liberty. If we succeed in that, we shall attain the richest benefit and proudest renown that any nation can hope to achieve. Adopt the proposed amendment of the Constitution, and we shall make proud proclamation to the nations abroad, and to our own people at home, that our true "manifest destiny" is to be the conservators of civil liberty, and, by our example, to SQUATTER SOVEREIGNTY. 4T discountenance the use of might against riglit. "We shall proudly proclaim as our true, unalterable national policy to grow great, with an ever progressive greatness, upon our own abundant resources, without filching or robbing from our weaker neighbors. Do this and firmly stand by it ; also cease sectional agitation in senseless scrambles for the balance of power, and we shall soon cease to hear of the decay of national feeling and patriotism among us. Every native of the soil will love, because he will be proud of his country. CHAPTER V. December 3, 1858. SQUATTER SOVEREIGNTY. Response to tJie Essay on Popular Sovereignty imputed to the Hon. E. J. The example of the Supreme Court in disregarding precedents and long-settled construction has encouraged every sort of per- son to attempt new readings of the Constitution. Whilst such attempt is maintained only by multitudinous disquisitions that betray utter want of constitutional lore and legal acumen, it needs no special attention. The mere opinions of such writers carry no weight with them. Not so, however, as to a decision of the Supreme Court, or as to the opinion of an eminent coun- sellor on the meaning of a decision which he was principally instrumental in obtaining. Most men out of the profession take such an opinion upon trust, and many even of the profes- sion do the same, rather than incur the trouble of verifying for themselves the accuracy of the statements of such counsel. Hence the necessity of some brief response to this bulky pam- phlet. The chivalry with which Mr. J stakes a high profes- sional reputation in attempting the rescue of a political friend 48 SQUATTER SOVEREIGNTY. requires indulgence to be mingled with the astonishment his pamphlet has caused. He seeks no evasion, dodges behind no quibble, but gives it as his deliberate opinion that, whilst Con- gress has no power to exclude, to establish, or to protect slavery in a Territory, yet its Legislature can do them all, and claims the Dred Scott decision as sustaining his opinion. The main point, and, apart from the citizenship of a negro, the only point decided by that case, was that Congress could not prohibit slavery in a Territory. The only semblance of a tan- gible reason given by the Court why this could not be done, was because such prohibition violated those clauses of the Con- stitution which protect an owner from deprivation of his prop- erty without compensation and due process of law. As to the general broad power of free Congressional legis- lation over Territories within the pale of the Bill of Rights, the concession of the Court is full, frank, and unqualified. Within that limit the absolute sovereignty of Congress for all gov- ernmental purposes is fully and distinctly admitted. In Canter's case Judge Marshall and his associates had said that the power of Congress to govern a Territory is " unques- tionable." In the Dred Scott case Judge Taney and his asso- ciates say in their comment: "iw this we entirely concur, and nothing ivill be found in this opinion to the contrary. The power stands firmly, as the inevitable consequence of the right to acquire territory.'' As the power of governing a Territory by a legis- lative department necessarily includes the power of legislation, this is a full, distinct, unequivocal recognition of the Congress- ional power of legislation over a Territory. As to the extent of that power there is equal unanimity between the two sets of Judges, with only a seeming but no real difierence between them. In Canter's case Judge ISIarshall and his associates unani- mously held that " in legislating for the Territories Congress exer- cises the combined powers of the General and of a State Crovern- ment." In other words, as they might have said, Congress has, like a State government, all power not expressly prohibited. This latter form of expression was not used, because Judge Mar- shall knew that no jurist could so far misunderstand him as to suppose he meant to assert a power in Congress contrary to the S Q U A T T E R S V E R E I G N T Y. 49' express inhibition of the Constitution. Yet, Judge Taney, in having laboriously performed the gratuitous task of relieving Judge Marshall from such an imputation, has caused the only even seeming difference between the two sets of Judges as to the extent of the Congressional power. With this explanation Judge Taney and his associates confirm what Judge Marshall had said, and approve his decision in the Canter case, sustain- ing an act of Congress, which was the exercise of a quasi State government power over a Territory, not at all of express Fed- eral grant, but rather in repugnance to the proper or peculiar Federal structure of the government. Judge Taney and his associates, after thus explaining that decision, say in reference to it: "jSTo one, Ave presume, will question the correctness of that opinion ; nor is there any thing in conflict with it in the opinion now delivered." They further say : " The power exer- cised by Congress to acquire territory and establish a government there according to its own unlimited discretion, was viewed with great jealousy by leading statesmen." "We do not mean, however, to question the power of Congress in this respect." "All we mean to say on this point is, that as there is no express regulation in the Constitution defining the power which the General Government may exercise over the person or property of a citizen in the Territory, the Court must look to the pro- visions and principles of the Constitution for the rules and principles by which its decision must be governed." " Taking this rule to guide us, it may be safely assumed that citizens of the United States who migrate to a Territory cannot be ruled as mere colonists, dependent upon the ivill of the General Gov- ernment, and to be governed by any laws it may think proper to impose.''' "A power in the General Government to obtain and hold colonies or dependent territories, over which it might legislate ivithout restriction, would be inconsistent with its own existence in its present form." Thus the Court recognizes the power of Congress to legislate for Territories within the pale of the Constitution. Again, Judge Taney and his associates say, further : " It was not only within the scope of its power, but it was the duty of Congress to jpass such laios and establish such a government as would enable the nation to reap the advantages anticipated 7 50 SQUATTER SOVEREIGNTY. from its acquisition." "The form of tlie government neces- sarily rested in tlie discretion of Congress. In some cases a government, consisting of persons appointed by the Federal Government, would best subserve the interest of the Territory. In other instances it would be more advisable to commit the power of self-government to the people of the Territory." Thus affirming in effect that Congress might retain the gov- ernment exclusively in its own hands, as in the case of the District of Columbia, without the aid of any Territorial legis- lation whatever. Again, they say : " These provisions (the Bill of Rights) are not confined to the States, but extend to the whole territory over which the Constitution gives potver to legislate, including those portions which remain under Territorial government." "And if Congress itself cannot do this, (that is, prohibit slavery,) if it is beyond the powers of the Federal Government, it will be admitted, we presume, that it could not authorize a Terri- torial government to exercise them, (the prohibited powers.) It could confer no power on a local government, established hy its authority, to violate the provisions of the Constitution." Thus clearly indicating the opinion of the Court, if it be needed, on so clear a proposition, that such prohibition being uncon- stitutional when imposed by Congress, it must be equally so when imposed by a Territorial Legislature, deriving all its power from Congress. E'otwithstanding all this direct, indirect, repeated and most explicit recognition of the right of Congress to legislate for the Territories on all non-proJiibited subjects, and even to retain their entire government exclusively in its own hands, Mr. J assumes that the Dred Scott decision is an authority to prove that Congress has no power to legislate for the protection of slave property within the Territories. The Court denies the power to prohibit slavery, on the sole ground that such pro- hibition infringes upon the Bill of Rights ; yet he does not pretend that protection, or even the establishment of slavery, comes within any prohibition of the Constitution. The Court treats the whole Territorial legislative power as derived from Congress, which therefore cannot extend beyond what Con- gress itself possesses. He, on the contrary, contends that SQUATTER S V E R E I G X T Y. 51 though Congress cannot, yet the Territorial Legishiture may " exclude " slaves ; and that though Congress cannot, the Legis- lature may protect slave property. The Court decides that the owner has a right to carry his slave property to a Territory and keep it there, and that to prohibit the exercise of this right is to deprive him of his property in violation of the Constitu- tion. His argument is, therefore, in eflect, that though Con- gress cannot, the Legislature may so violate the Constitution as expounded by the Court. This he does not say explicitly, in so many words, but to escape that dilemma, whilst claiming the decision in his favor, he boldly invalidates the decision itself by proving the only reason upon which it is based to be unsound and ridiculous. As before stated, the only tangible reason anywhere given in the very prolix opinion of the Court, for denj-ing power to Congress to prohibit slavery in a Territory, is to be found in the following clause of the opinion : " Thus the rights of property are united with the rights of person, and placed on the same ground by the fifth amendment to the Constitution, which provides that no person shall be deprived of life, liberty, or property, without due process of law. And an act of Congress which deprives a citizen of the United States of his liberty or property, merely because he came himself or brought his property into a particular Territory of the LTnited States, and who had committed no offence against the laws, could hardly be dignified with the name of due pro- cess of law" This is not merely the sole reason given for denying the power to Congress, but, strange as it may appear, not a soli- tary argument is adduced to prove the sufficiency of that reason. So perfectly self-evident to the Court was the all-sufficiency of the reason, that it was deemed unnecessaiy to make out the sufficiency by argument. That to prevent a man from carry- ing his slave to a Territory was to deprive him of his propert}'-, within the meaning of the Constitution, was assumed to be so obviously clear as to need no argument. After conceding to Congress all non-prohibited power, it was incumbent upon the Court to show the prohibition, and this is the only mode it takes to discharge that duty. 62 SQUATTER SOVEREIGNTY. N^ow, let us see how tliis all-sufficient reason, wliicli consti- tutes the exclusive basis of the decision, is treated by Mr. J , who was so principally instrumental as counsel in obtaining the decision, who still lauds it and its authors to the skies, whilst claiming it as an authority in his favor. A certain political and personal friend of his has thought proper to stake his aspirations upon the maintenance of his newly discovered dogma that, though Congress cannot, a Ter- ritorial Legislature may^ "by unfriendly legislation," drive slave property from a Territory. Mr. J , with self-sacri- ficing chivalry, rushes in to aid this friend ; but, knowing it is useless to contend for a power to do indirectly what cannot be done directly, scouts all evasion, comes manfully up to the main point, and boldly affirms the power of a Territorial Legislature directly to exclude slavery. He is met with the decision of his much-admired friends, the Judges, saying such exclusion de- prives owners of their property without due process of law, and is therefore unconstitutional. This difficulty, if left in his way, he sees is insurmountable. He must remove it. He addresses himself to the task with manful, not to say successful, intrepid- ity. Hear what he says : " Is private property appropriated to public use by laws abol- ishing slavery, or prohibiting the right to bring such property into a State or Territory ? Certainly not. Such legislation is to be found in almost every State in the Union, and no one has had the temerity to call it in doubt. * * Being property, it cannot be confiscated or appropriated to public use without compensation. The introduction of slavery into a Territory may be prohibited, but this is not public appropriation of private p)roperty. It is not denied that this can be done by State power, although, besides the prohibition contained in the Federal Con- stitution, there is a like one in the constitution of every State. "Why, then, as must be admitted, is it in that case legitimate ? Because it is a fit subject of legislative power, and is not within the words or object of such a prohibition." He then proceeds further to enforce this position with full and most convincing arguments, though omitting many which might be added. Well done, Mr. J ! He is, in this, con- tending for what the legal profession, almost unanimously, SQUATTER SOVEREIGNTY. 63 believes to be sound law. Whilst so doing be may be backing up bis friend, but seems unaware that be is at the same time hacking down tbose so-much-admired friends of his who gave that Dred Scott decision which he thus so ruthlessly, if unwit- tingly, assails. lie is knocking from under that decision its only prop — its wJioIe foundation. In so doing he only does what probabl}^ nine-tenths of the profession had already done. But he seems not to perceive that he is bringing down the whole decision in ruins upon his own head. By destroying the sole reason upon which the decision rests, he destroys its whole value as an authority to prove that the power is not in Con- gress, and by necessary consequence, as he contends, must therefore be in the Territorial Legislature. By destroying the authority of the decision we return to where we were before its rendition, where, by sixty years' usage and almost universal consent, Congress had full power over the prohibiting, the establishing, and the protecting of slavery in the Territories. He labors, "\^dth perfect success, to prove that the power to abolish, to establish, and to protect slavery is an indispensable legislative power, which is bound to exist somewhere for the proper government of the Territories. But those of us who concur with him, or have heretofore urged the same opinion, cannot but regret that, whilst obtaining the Dred Scott deci- sion, he had not reminded the Court of this important fact. The decision might have been different, or at least it would have rendered the Court more chary in denying so indispen- sable a power to Congress, when, according to its view of the subject, if not held by Congress it would exist nowhere else, as the powers of a Territorial Legislature are all derived from Congressional grant. But, conceding the decision to be right, notwithstanding his proof to the contrary, it does no way aid him in proving his proposition that Congress has no power to intervene for the regulation of slave property. The assumption that its want of power to impair implies a want of power to protect a right is about the grossest 7ion sequitur ever propounded. So far from that being true, all those rights of person and property which are guaranteed by the negation of power to impair them are so guaranteed on account of their great value and import- 54 SQUATTER SOVEREIGNTY. ance, and are therefore pre-eminently special objects for Con- gressional protection. In reference to them, as Judge Taney and his associates say in reference to an analogous subject, the only power of Congress " is the power connected with the duty of guarding and protecting the owner in his rights." This power and duty Congress has no right either to abdicate or alienate. The people of the South will permit no such abdi- cation of a power or surrender of a principle at all necessary to the protection of their slave property. That they will not do so merely for the convenience of a political party, in avoid- ance of a party split, and in subservience to political prejudice, the Southern Opposition will be very heedful. Mr. J earnestly insists that the Democracy is com- mitted to non-intervention. Its most authoritative committal is altogether the other way. He relies on those "gull-traps," the platforms of party conventions, gotten up by unofficial, irresponsible political managers for the purposes of an election campaign. The party has spoken and acted on that subject, through its highest chiefs, in a much more responsible and authoritative manner, by their unanimous vote — Judge Doug- las included — in favor of what was called the " Toombs-Kansas bill," which passed the Senate after the adoption of the Cin- cinnati platform. The writer has not immediate access to that bill, but can state its purport fi'om distinct recollection. It repealed all those infamous acts of the Kansas Legislature which Senator Cass appropriately characterized as " a foul dis- grace to the nation and the civilized age in which we live," and by express prohibition nullified in advance all future legis- lation of the same character. This was the most signal exem- plification that could possibly be given of the power and duty of Congressional intervention. Much of the legislation so at- tempted to be annulled had direct reference to, and bearing upon, slave property. This bill having been voted for by every Democratic Senator, on his official responsibility, affords an enduring, unequivocal committal of the party, which no unof- ficial acts of the irresponsible members of a mere party con- vention can revoke or alter. The mere exigencies of the party, however imperative, cannot absolve it from that committal, even in the estimation of honest, intelligent Democrats. It SQUATTER so VEKEIGNTY. 55 should deservedly weigh with such men much more than all the wild vagaries and loose theorizing of politicians, even when endorsed hy the most eminent counsel. When that hill was passed it was deemed a great necessity in reference to the then pending election campaign, to relieve the pai*ty from the odium of that infamous legislation. The Southern Democracy aided the intervention to demolish improper protection to slave prop- erty, and therehy assist the party. With no show of justice can they he now called upon to condemn that action hy volun- tarily surrendering all claim of Congressional intervention for rightful protection when needed. As their claim is one of simple justice, they cannot he expected to ahandon it in pro- pitiation to mere prejudice. Mr. J 's pathetic appeal, in behalf of the unity and harmony of the party, should have been addressed to its Northern wing for a forbearance of its obtrusive and damaging prejudices. The South has a hard bargain in the Dred Scott decision, if squatter sovereignty has to accompany it as a necessary ad- junct. The examples of California and Kansas prove that the South can better rely on the tender mercies of Congress than those of squatter sovereigns. The South will always have great influence with any dominant party in Congress, whereas, over squatter sovereigns, it has no means of influence or con- trol whatever. This was the view taken by the people of Kentucky in the last canvass, and which was manifested with so much apparent unanimity that nearly all the Demo- cratic candidates were compelled to abandon the doctrine of non-intervention. The Southern Democratic leaders know the same result would ensue a discussion in any Southern State. Hence they dare not, from fear of the Opposition, adopt Mr. J 's advice. As imminent as may be the danger of general defeat to the party, that of its local defeat in the South would be still more so if they were to attempt the abandon- ment of a power or principle deemed necessary to the protec- tion of Southern property. 56 DISUNION. CHAPTER VI. DISUNION. Extract from a series of Numbers published under tJiis title in tlie summer and falloflSSQ. It appears to be the concurring opinion of all reflecting men that the Union is in great danger ; that the sectional contest now waging between two of the contending parties puts it in imminent peril. Such is the warning sent from Congress to the nation by some of our most eminent and venerable states- men. Democratic leaders, through the* press and from the stump, are everywhere sounding the alarm. Conservative men, not of their party, also feel the danger, and give credence to it the more readily, because it was what they foresaw and fore- told as a necessary consequence of that act of folly, the repeal of the Missouri Compromise. Thirty-six years ago the same question split the nation into two violent sectional parties. The mutual animosity occasioned by it caused, to intelligent patriots of that day, the most intense anxiety. Its fortunate adjustment seemed to lift a load from their minds ; they breathed more freely; they clasped each other's hands with mutual gratula- tions. It seemed to them that the country had received a new lease of life. Human nature must be much altered from what it is and always has been, if such a question, whenever raised, does not put the Union in danger. Sectional divisions are just as natu- ral, our proneness to them just as strong, as to local partialities and prejudices. Those feelings, if indulged and excited into action, become violent, unreasoning passion, and render us the easy dupes of the designing and the wicked. If, to a question involving such prejudice and partiality in the highest degree, there be superadded a question of political power, a sectional DISUNION. 57 contest for power, we have tlie materials from whicli to gene- rate the bitterest and most unappeasable sectional strife. The wise founders of our Government understood this perfectly, knew the effect of any great sectional strife, and spared no pains to warn us against this, the deadliest peril in our national career. The peril of 1820, greatly as it alarmed the wise and good men of that day, could have been but little when compared with that now impending over us. The national heart, Avith small exception, was then everywhere sound in its loyalty to the Union. Avowed disunionists were to be found nowhere. The then recent foreign war had consolidated the national patriotism. There had been no sectional legislation, or none which was then represented as favoring one section to the pre- judice of another. The public mind South had been alarmed with no fear of any design at the ISTorth prejudicial to slave property. The public mind ISTorth had not been lectured or preached into any undue prejudice against such property. Abolitionists did not then exist. More than ten years later the people of l!^ew England refused to give them even a hear- ing. They were refused the privilege of lecturing in favor of abolition. Though the ITorth was arrayed in almost solid phalanx against the admission of Missouri, yet her statesmen did not justify their opposition upon any fanatical pretext of opposition to negro slavery in the abstract as immoral or irreligious. They justified it on the broad, statesman-like ground assumed by the Revolu- tionary fathers when making the restriction in the Ordinance of 1787 ; that is, for the sake of the whites themselves. So far, and so far only, they went into the moral of the question. They also affirmed that thcN'orth had been inadvertently cheated by the compromise of the slave question contained in the Consti- tution. That the equivalent therein given for the three-fifths representation allowed to slaves turned out in practice to be no equivalent at all, the revenue not being raised by direct taxa- tion, and the promised discrimination in favor of the free States, therefore, never actually occurring. Every extension of slavery, they said, was adding to the prejudice they received by reason of the alleged unequal bargain ; and Missouri being 8 68 DISUNION. no part of the Union at tlie time of the bargain, they had a right to protect themselves against further extension of the inequality. They said that a community of interest in slave property caused a community of feeling and concert of action among the slave States, which gave them a preponderance in all political contests greatly beyond their relative strength. In proof of this they referred to the fact that the South had held the Presidency for thirty-two out of thirty-six years. They also alleged that, practically, the institution of slavery in any State or Territory was as much an inhibition to immigration from the free States as if expressly prohibited by law ; and the North, having paid its full share towards the purchase of Louisiana, had a right to take care that her citizens should participate in the benefits to be derived from settling in at least a part of the purchase. However unsatisfactory this course of reasoning appears to Southern men, yet, aided by sectional feeling and prejudice, it was so convincing to Northern men as to array them in an almost solid body against the admission of Missouri. Nor can it be altogether destitute of plausibility, for many Southern men insisted most strenuously, for very similar reasons, that slavery should be legislated by Congress into the southern half of California, so that the South might participate in the bene- fits of that acquisition, and this too against the known wishes of the people of California. The question is sprung upon us at the present time under a very diftorent state of case, and a very difierent condition of popular feeling. The mutual exascerbation growing out of the contest concerning the tarifl', with the unceasing agitation of the slavery question, for the last twenty years, has caused great alienation, if not antipathy between the extreme North and South. The propagation of Abolitionism is promoted and encouraged from the pulpit, the press, and the stump. Able and eloquent men are encouraged by public patronage to devote themselves to its propagation. Having no one to counteract them, they have infused the most bitter prejudice into a large part of the Northern mind on the subject of negro slavery. This, reacting upon the South, has engendered a strong dislike against all those of the North, who countenance and encourage D I S U N I X . 59 these wicked propagandists. Avowed disunionists are to be found in large numbers, both in the extreme South and in the extreme ISTorth. There is every reason to believe that promi- nent and influential men in both sections have been for years agitating the slavery question, with the express view of bring- ing about disunion. These things properly considered, how much greater must be the danger from the sectional contest now than it was in 1820. All considerate men must concur in the opinion that the danger is imminent. "VYhat, then, does this thing called disu7iion mean ? We have been taught to look upon it as a dreadful something of mutual disadvantage, an undetined sort of national calamity that might overtake the nation in a remote future, the particular features of which there was no present need for inquiring into with any care. But if the danger is now upon us, if it is already at our door, it is high time that we should fully understand what it means. If it be one of the alternatives brought to the mind of every voter during the present contest for the Presidency, he should be able to understand and appreciate what that alter- native means. It means a hostile army on the other side of the river, bombarding the city of Louisville, battering down and burning its houses, and leaving the fair city a mass of ashes and smouldering ruins. It means the same thing to be done to Cincinnati. It means the destruction of every town on either bank of the Ohio, from "Wheeling to its mouth. It means the converting the valley of the Ohio into a great battle- field for the contending armies of hostile nations. It means broad tracks of ruin and desolation which those armies will eveiywhere leave behind them. This is what it means for us who live in this valley. "What it means in other localities, the people of the other Middle States can figure for themselves. Such being its meaning for us in this valley, it behooves us in an especial manner, more than the people of any other sec- tion, to carefully look into the supposed necessity for a resort to any such alternative. This great valley of the Ohio has been pronounced by an enlightened foreign traveller to be the most magnificent seat of empire that God has anywhere provided for man upon the face of the earth. It is the site of five large prosperous States, 60 DISUNION. and of a large part of the sixtli. It is already tlie peaceful, happy, and prosperous abode of seven millions of people, and in a quarter of a century will be the abode of more than fifteen millions. It soon will be the heart and centre of the popula- tion, and must in all time continue to be the centre of the population and power of this great nation. Similarity of in- dustrial pursuits, identity of commercial interests, and geo- graphical position compel its inhabitants all to live under one Government, and must so compel them for all time to come, if they desire their own happiness and prosperity. It is in this valley that the slaveholding and non-slaveholding States touch each other upon their longest line of separation ; an indefen- sible line of near a thousand miles. It is therefore that dis- union upon the slave line should never be to them a matter of choice in any state of things whatever. We could much better afford to give away the Carolinas, Georgia, and all 'Sew Eng- land, to some foreign power than take the first step toM^ards such an act of self-destruction. Are we, at the contemptible bidding or solicitation of malcontent disunionists in the ISTorth and South, to sever all the ties of interest and aflection which bind us together, and convert this now happy valley into a great battle-field? Have we so little intelligence and true patriotism as to suffer our passions and prejudices to be so played upon to our own self-destruction ? Kentucky's great orator mislocated the " keystone of the Federal arch," when he assigned that function to "good old Pennsylvania." Its true position is further west. It would savor too much of mere compliment to assign such a great function to any one State. The compliment is large enough to be divided among a cluster of States. It properly belongs to our great valley of the Ohio. If the States of that valley are sev- erally true to themselves, they will be true to each other. They should take every occasion to make known their determination to remain one and inseparable, let the balance of the Union break into what fragments it may. The knowledge of that fact would go far to silence all disunion schemes and agitations. For, if it be conceded that the States in this valley are unal- terably determined never to separate, disunion will cease to be a peril in our national career. It would no longer be in the DISUNION". 61 power of mail to break up the Union, or if at all, certainly not upon any dividing line west of the Hudson, or east of the Rocky Mountains. The desire for our commerce will always grapple to us l^ew York and Pennsylvania as the northern buttress, and the lower valley of 'the Mississippi as the south- ern buttress of the Federal arch. By thus binding them to us they will be bound to each other, and all lying between them will be compressed into unity, and the Union thus become indestructible. A mere sliver knocked oiF from the northeast or southeast, or even detaching the great bulk lying west of the Rocky JSIountains, would not materially injure either the prosperity, the strength, or the durability of the remainder. Can it be, that in any hour of mad passion we ourselves will pull asunder the glorious arch, and bring it down in destruc- tion upon ourselves ? There is no matter of practical interest or importance in- volved in the question, whether Kansas shall be a free or slave State, that should weigh a feather in the estimation of any of the States in the Ohio valley, when poised against the vastly greater interest which each of them has in the preservation of the Union. As to the free States, they want no accession of political strength. With five Territories that are bound to come in as free States, there is not even the possibility of dan- ger that the ^N'orth can ever lose its x^reponderance in the num- ber of States, or of population. According to every calculation, both must increase rapidly and largely in her favor. So true is this, that she could well afford to give it to the South as a make-peace ; at any rate, she can well afford to wait patientl}', and to see whether Kansas will not come in as a free State, even as her affairs now are, rather than make her the cause of an irreconcileable feud with the South. The ISTorth must recol- lect that, whatever supposed wrong she may have sustained by the repeal of the Compromise, her own representatives were mainly instrumental in producing tlje wrong, and it is the result of their free offering. If there was any corrupt bar- gaining with those representatives, the whole South is not responsible for that, as is sufficiently obvious from the fiict that the promised price of the supposed bargain has not been pstid. jS'oi'thern representatives have been mainly instrumental 62 DISUNION. in bringing the nation into its present difficulty, and tlie Kortli should have patience and forbearance towards the honest efforts to get us out of it. Resisting the repeal of the Compromise, and even punishing ISTorthern representatives for its repeal, is a very different thing from forcing its restoration, and espe- cially forcing it in violation of the spirit of the Constitution. K conciliation, or even compromise, be necessary for the final adjustment of the dispute, the free States of our valley should meet Kentucky and Tennessee in the proper temper, and aid them in effecting a pacification. Their efforts, like ours, should all be directed towards conciliation, and against widening the breach. The earnest efforts of all should be bent towards a speedy adjustment, for no man can foresee the result of a pro- longation of the conflict during another Presidential term. "We already find the House of Representatives prepared to stop the wheels of government for the purpose of coercing conces- sion to its view of a part of the controversy. "We shall have an exaggerated repetition of the same sort of collisions if Bu- chanan is elected, during the whole of his term. If Fremont is elected, the same scenes will signalize all his term, with the only difference that the Senate, instead of the House, will be the body to come in collision with the President and stop the wheels of government. The fact that Kansas will most probabl}^ become a free State can constitute no inducement with Kentuckians to take part in this sectional strife, even if the matter were weighed in purely selfish scales, and even if negro slavery were the para- mount interest of Kentucky. With her seven hundred miles of free State border, her most important interest, growing out of her slave property, is to have and preserve quiet on the slave question. Such quiet is of the most vital importance to her ownership of that property. But her slave property is far from being the most important interest of Kentucky, either in a pecuniary, social, or political point of view. In all these aspects there is another thing in which she has a much deeper and more paramount interest. Tltat other great interest is the preservation of the Union. The great body of the wealth of every State is in its land. To give proper value to that land, it must afford peaceful, prosperous DISUNION. 63 homes to its inhabitants. It must have facile access to its natural commercial outlets and marts. Break up the Union on the slave line, destroy the bonds of amity between the IsTorth and South, and we shall become two hostile nations, seeking nothing but mutual injury and destruction. Where, then, will be our commerce ? We shall have none. Our great outlet on the gulf will be blockaded by a naval force from the North, and all access to the best Atlantic marts cut off. The owners of slaves would immediately run the most of them to safer lo- calities. With an undefended and indefensible border of seven hundred miles, we should be perpetually liable to predatory inroads of armed invaders. Everywhere through our State war would soon leave its broad tracks of ruin. It is true that Kentuckians are not a race who would tamely submit to such injuries. They would have vengeance, and inflict similar inju- ries on our neighbors north of the river. Vengeance may be sweet, but it is not always profitable. Their injury would not be our profit. When Kentucky can no longer give peaceful and prosperous homes to her citizens, what then will be the value of her land ? It would be arrogating for our people perhaps too much to claim for them a very high degree of that moral quality which makes devoted, disinterested patriotism. But if patriotism be evinced in its higher properties by a loyal devotion to the Union, then we may safely claim that Ivcntuckians have no superiors, and but few equals, in devotion to their coun- try. Li their opinion disunion is a remedy for nothing, but is in itself the worst of evils. There breathes not a sinsrle dis- unionist within all her bounds. It may 1be that our position makes self-interest and patriotism identical. Happy for us if it be so ; unhappy for those localities, if any such there be, where interest and duty are not equally blended. But be the fact with us as it may ; be it an enlightened self-interest, or the nobler feeling of love for our country ; be the prompter the pocket or the heart, the universally disseminated feeling among Kentuckians of loyalty to the Union shows that, in their esti- mation, our great paramount interest is, ever has been, and ever will continue to be, the preservation of the Union. 64 DISUNION. No. n. This is one probaLle mode in which the break-up might be accomplished. There are various others that would serve equally well for infuriate men, acting under the impulses of mere blind passion, even if there were none among them act- ing with the formed design of destroying the Union. Ex- tremists are always the leaders and dictators in times of high party excitement. They are the men that would have control of Buchanan and Fremont. !N^ow it so happens that the people of the West have long entertained a well-grounded suspicion that a large portion of the political leaders and agitators east of the Hudson, and a still larger portion of tLem south of Vir- ginia and Tennessee, actually desire disunion. With such men controlling, or at heart greatly influencing the two sec- tional parties, at an hour of such mutual ill-feeling between the North and the South, it requires no prophet to foretell the result. South Carolina is openly and avowedly for disunion, and has been so for years. Her public press habitually advo- cates it. Massachusetts, with some one or more of the other New England States, has recently resorted to a system of legis- lative nullification which, allowing her credit for ordinary sense and discernment, can have no other object but to invite similar retaliatory legislation on the part of the Southern States, which, if resorted to by them, would go very far to destroy all the benefits of the Union, and leave it little worth preserving. Kansas is the cause of quarrel, and the continuance of the (j^uarrel the cause of danger to the Union. The quarrel can be settled, and the danger avoided, only by her speedy admission as a State. No man points to any other solution of the dif- ficulty. One party says she shall come in as a free State, or not at all. Another party says she may come in either free or slave, as she herself shall elect, but taking care, as the North be- lieves, that all the appliances of force, fraud, and Government influence shall be used to make her elect in favor of slavery. Neither of these parties can accomplish her admission during the next Presidential term, for neither has the slightest confi- dence in the honesty of the other; andAvithout the utmost con- DISUNION. 65 lidence in the fairness with which the affairs of Kansas are administered, either the Senate will reject her as a free State, or the House of Representatives will reject her as a slave State. But the leaders of the Democracy have got themselves into a bitter quarrel with the North, and are crying out lustily for aid. Such is their need for help, that they are begging and entreating it from adversaries with whom they have waged a relentless warfare, and whom they have habitually maligned and traduced for more than twenty years. By their reckless folly they have brought the Union to the brink of ruin, and they beg aid to keep power in their hands, that they may save the Union. They entreat aid to defeat Fremont, because they say his election will dissolve the Union. One of them, a Sen- ator from Georgia, whose talents and position give him grea- influence with the supporters of Buchanan, in a recently pub- lished letter, declares that, in the event of Fremont's election, the Union not only will, but ought to he dissolved. That is, the Southern States will secede. The only thing that the Fremont party proposes to do, if successful, to which the Southern States can take exception, is the restoration of the Missouri Compro- mise line ; and, as incident to that, refusing the admission of Kansas, except as a free State. The doing of that would surely be a most insufficient pretext for dissolving the Union with any except those who desire it, with or without cause. It would merely put us back where we were three years ago, where the Southern States themselves placed us, and where we had lived peaceably and happily for more than thirty years. The Border Slave States will resist the restriction by their votes, but they will resist it no further. If the North, by its own votes, can restore the line, those States may regret and even complain of the act, but will be iav from deeming it a sufficient cause for disunion. On the contrary, they who have the temerity to proclaim it as sufficient cause, only subject themselves to the suspicion that they are disunionists at heart. Whilst thus recklessly avowing their determination to break up the Union for insufficient cause, it is with bad grace and little persuasiveness that they invite us to place its preserva- tion in their hands. If the people of the Middle States act 9 6Q DISUNION. wisely, they will entrust its preservation to no sucli hands, but will keep it in their own. One of the Democratic leaders is reported to have proclaimed in the Senate that the Northern opponents of the repeal should be subdued into obedience. Conservative men want no such gostering leadership as this. That is not the way to settle our national disputes. As certain as it is that the North cannot subdue the South into obedience, so certain is it that the South cannot subdue the North into obedience. Either section may be persuaded into reluctant acquiescence, but neither can be subdued into obedience. No real statesman would ever think of even making the attempt. "We of the Middle States, and especially of Kentucky, have no notion of joining in any war- fare of section against section, or in aiding the one to subdue the other. Our duty to ourselves and the Union is rather to interpose in such conflicts, for the express purpose of always trying to prevent the one from entirely subduing the other. So far from rallying to the cry for Southern unity in the pre- sent contest, and yielding to the insidious, but persuasive en- treaty, that the South may present an unbroken front in the conflict, that is precisely the thing of all others which we should avoid. We want no such array of unbroken fronts between the North and South. "Whenever the South presents an unbroken front, the North will do the same. "When that comes, we have, according to all men's admission, the pre- cursor to disunion and civil war. It always has been and always will be the first step of those who designedly seek a dissolution of the Union. Away, then, forever and a day, with this hypocritical cry of showing a solid front against the North for the preservation of the Union. Massachusetts is entitled to the unenviable honor of having invented, or inaugurated, this mode of opposing our Govern- ment by sectional State Conventions, and combining these solid sectional State fronts for the purpose of eflPecting disunion, un- der the guise of seeking redress for alleged sectional griev- ances. Under her influence the celebrated Hartford Conven- tion of New England was held during our last war with Great Britain. Though that war was as righteous and necessary a war on our part as ever was waged — though it had been de- DISUNION. 67 • clared mainly for the puq^ose of avenging the robbery of Xew England commerce, and the impressment of 'Rew England sea- men, yet Massachusetts gave the country no aid in carrying it on, but did everything in her power to paralyze oUr Govern- ment. To her enduring dishonor, she selected the gloomiest and most critical period of that war, when the peace in Europe enabled Great Britain to turn the whole of her naval and mili- tary power upon us, to start this treasonable scheme for efl'ect- ing a secession of the New England States. By her more recent deportment, by her apparent concurrence in the lofty strains of Union-loving, national patriotism with which her great champion beat down nullification, it was thought that she had been regenerated, and by a new course of life she meant to atone for and wipe out that foul stain on her es- cutcheon. But no sooner is that great champion dead, no sooner is she freed from his guidance and control, than she places herself under the petticoat government of her strong-minded women, her feeble-minded men, and her fanatics, and plunges into that Serbonian bog of nullification from which he said there w^as neither redemption nor resurrection. This, too, merely because a needful national measure of the highest and plainest constitutional obligation infringes upon her contempt- ible local prejudices. She has already forgotten the solemn, oft-reiterated warning of her great man against her prejudices, and yields herself up blindly to their impulse. The leaders of the Democracy in this hour of utmost party need, when they feel that long-abused power is slipping from their grasp, when they find that by their reckless folly they have lost some seventeen out of twenty-seven States, cry out for aid. They cloak their call for aid under the pretext of aid for saving that Union which they themselves have brought into peril. But how do they propose to save it ? Do they propose any measure for conciliation ? do they confess their own errors and promise to correct them ? No, they propose nothing of the sort. All they propose is war, interminable contest with the North, and are very lavish of their boasts and promises to subdue the North into obedience, if they can only get help. A most Quixotic enterprise truly, well worthy the sagacious and trustworthy men who broke down the largest political party 68 DISUNION. we have ever known, in tlie fraction of a single Presidential term. Have they not the sagacity to foresee that the very same sort of sympathy, prejudice, and local interests with which they hope to combine the South in solid front against the North will enable their adversaries to combine the Korth in solid front against themselves? The hopeful enterprise to which they invite recruits is, with only 121 Southern electoral votes, to subdue the North into obedience, notwithstanding its 175 electoral votes. A battle a Voutranee with the North is what they propose, and all that they propose — that, too, with such inadequate forces as render it perfectly certain that the South must ultimately be defeated, even though the Democ- racy should, contrary to all reasonable calculation, by some unknown chance succeed at the present election. They not only propose to do nothing towards conciliating the North, which, if not necessary to present success, is cer- tainly indispensable to the party's retaining power, but pro- mise the exact reverse. The}^ promise to do that which they cannot but know will widen the breach between the two sec- tions, and add fuel to the flame which is now heating their mutual animosity. They have, by their platform, and by the selection of their candidate, adopted and substantially promised to carry out that supereminent act of folly, the Ostend mani- festo. To say nothing of the national execration which the authors of that scheme have earned for themselves, for foully traducing our national honor in the eyes of all Europe ; to say nothing of that universal popular scorn, contempt, and indig- nation with which the proposition was everywhere met by the nation when first presented, the utter futility and impractica- bility of the scheme betray, by its adoption, the want of saga- city of the present leaders of the Democracy. But what do we want with Cuba, even if we could obtain it by fair purchase ? We have the full benefit of its commerce now without its costing us a dollar. We could not retain the island at an annual cost of less than ten millions of dollars. The Spaniards keep there never less than fifteen thousand troops. We could not hope to hold it with less than an army of ten thousand men. With less than that it would be liable to be seized by England or France at any moment ; and once DISUNION. 69 in tlie grasp of either we could not regain it, or if at all, only after a protracted contest which would cost twenty times what the island is worth. In a military point of view, so long as the island remains as it now is, in the hands of a weak neutral, that is the position of all others the most desirable for us, for it affords to a power- ful enemy no means of attack upon us, and would cost nothing for its defence. If its acquisition be supposed at all needful to the defence of our Southern border, then, if we owned it, how much more necessary to its defence would be the acquisi- tion of San Domingo and Jamaica? Must we go on and acquire these also, and so on, from a similar supposed neces- sity, until we absorb all the West India Islands ? Such is the law of all territorial expansions ; the}' do but create a need upon the same principle for still further acquisition. As for satisfying the greed of those who are in favor of such a policy, that is impossible ; their greed is insatiable. What do we want with more territory, extending as we do from ocean to ocean, and owning as we do more than half of an entire continent, capable of sustaining a population ten times more than ever was or ever can be properly ruled by a single government? Xo nation needs more population or ter- ritory than is necessary to its protection against foreign ene- mies. All beyond that is mere injurious excess, because it but adds to the difficulty of good government. This is espe- cially true in reference to a republic like ours, which will never tolerate that efficiency in the government which is only to be obtained by an armed police. We have already more territory and population than are needed for the most perfect security, and every day's experience tends to show that we have more of both than we can properly govern. Witness the martial law now prevailing in our ISTorthwestern Territories, the mili- tary trampling on the civil authorities ; the lynch law prevail- ing in California ; the priest law and polygamy prevailing in Utah ; and the civil war prevailing in Kansas. But above all, witness those unpunished, unpunishable, and unpreventable mob violences which, from time to time, have visited nearly eveiy State in the Union. 70 DISUNION. No. in. Let us now inquire what are the grounds that the people of the IN'orth have for justifying their opposition to the repeal of the Missouri Compromise, and we shall be better able to appre- ciate the propriety of dissolving the Union, as we are urged to do if Fremont is elected. That Compromise was forced upon the ITorth mainly by Southern votes. It was acquiesced in by both sides for thirty-four years, and treated by both sides as a final settlement of the question. It was almost unanimously approved in Kentuck}^, as it was in nearly the whole South, Kentucky's great orator acquiring vast reputation for his aid in effecting it. Amongst its more distinguished approvers were to be found Monroe, Giles, Chief Justice Marshall, and the Barbours of Virginia ; Lowndes, Calhoun, and Cheves of Caro- lina ; Crawford and Forsyth of Georgia ; with Pinckney, Wirt, and Smith of Maryland. It would be needless to extend the enumeration of distinguished men from the South who advo- cated the measure, for its approval in the South was so nearly unanimous that memory does not furnish the name of a single distinguished Southerner who opposed it, with the exception of the erratic and impulsive John Randolph. It is not to be denied ; the fact stands against us beyond all controversy, that with the full consent of the South, the observance of the Com.- promise was the price or equivalent which the South solemnly promised to pay for the admission of Missouri. It was at that price, and upon faith in that promise, that her admission was bought from Northern members. It was a fair bargain, fairly made, and honestly intended to be fulfilled by the Southern statesmen who made it for us. Tradition does not tell us of a single Southern member being turned out of his seat for voting ■for it. But the Northern right rests not alone on the Compromise of 1820. In 1845 their consent had to be obtained to the admission of Texas. Then another compromise had to be effected on the slavery question. Then again the Missouri Compromise was re-enacted, ratified, and confirmed by an act of Congress, with the undivided consent of the South. A^ain in 1850 there was need for another compromise on DISUNION. 71 tlie slave question, and again the North yielded all that the South demanded. This was a most bitter pill to the Xorth ; it came directlj^ and practically in conflict with the deepest prejudices of its people against slavery. The fugitive slave bill made them dircctl}', individually, and at their own homes actively instrumental in enforcing the power of the master over his slave. But they were assured that should be the last demand made upon them for a surrender of their prejudices. They were told that should be a final compromise. The great Democratic party, in its convention of 1852, renewed that pledge. By its platform the faith of the party was solemnly pledged that " all agitation of the slavery question, in or out of Con- gress, should be discountenanced by the Democracy, in what- ever shape or form the question might be presented." Yet, within two years, when the Democrats held two-thirds of the seats in both houses of Congress, the Missouri Compromise was repealed, with full fore-knowledge that its repeal would cause a for greater agitation of the slave question than was ever known before. It is no slight aggravation of the Northern feeling on this subject that they believe they were betrayed by their bought representatives. They have always believed, what a distinguished Southern Democrat has recently charged in a public speech, that it was the result of a deliberate, selfish scheme on the part of I^orthern aspirants to buy Southern votes for the Presidency, reckless of the sold rights and out- raged feelings of the Is'orth, reckless of the peace and safety of the Union. AYe have also to remember the more recent causes of exas- peration to the people of the l!^orth on this subject. The Kansas-Kebraska bill, whilst repealing the Compromise, oflTered as a substitute the false but taking dogma of squatter sovereignty ; pledging the fidth of the nation that the people of the Territory should be left perfectly free to settle the slave question for themselves — that is, proclaiming and inviting a scramble between the slave and free States for the possession of this new State. Accordingly, hopeless as the scramble was apparently then, the I^orthern people, as their habit is about evei'3i;hing they attempt to carry through, organized some, or, at least, one chartered emigrant aid society to promote emi- 72 DISUNION. gration to Kansas from the free States. Simultaneously all sorts of associations were organized in Missouri to promote Southern emigration to the Territory. But, not content with this slow and somewhat uncertain method, the Missourians resorted to much more summary and effectual measures. On the day appointed to elect members of the Legislature, they sent five thousand armed men into the Territory to manage the election. Most effectual management they gave it. A Con- gressional committee, sent to investigate the affair, report proof showing that, out of something over six thousand votes given, near five thousand were by non-resident Missourians, who man- aged the elections to suit themselves, intimidating the judges of the elections into receiving their votes, or compelling them to resign, and electing others to suit themselves. The laws passed by the Legislature were such as might be expected from a body so elected. Not content with establishing slavery, they passed various acts having for their undisguised object the driving away of the free State voters and preventing others from coming. It would be tedious to describe and character- ize all these acts. Sufiice it to say that a Democratic Senator (Cass) denounced them in the Senate as a disgrace to our coun- try and to the enlightened civilized age in which we live. That venerable and distinguished statesman. Senator Clayton, of Delaware, is also reported to have said that they were so atro- cious as fully to justify revolutionary resistance. The House of Representatives has pronounced these laws null and void on account of the fraud and violence used in electing the Legis- lature. The Senate also passed a bill repealing the most ob- noxious of those laws ; thus nullifying their own dogma of squatter sovereignty, the inauguration of which was their pre- text for repealing the Compromise. The executive and judicial administration of the Territorial Government is reported to have been the counterpart of its legislation. Free State men were rigorously prosecuted for every the least alleged offence, whilst pro-slaveiy men were prosecuted for none, not even the most notorious robbery and murder. As none of these outrageous proceedings have been rebuked by President Pierce, and they were carried on by his subordi- DISUNION. 73 nates, the Nortliern people naturally believe that they have had, if not his ex]3ress approbation, at least his culpable connivance ; and the whole influence of the Government has been unfairly used towards forcing slavery into Kansas. Thus they think the Democratic leaders have signalized their want of good faith — first, in the repeal of the Compromise; second, in the perfidious violation of their solemn pledge to " discountenance all agitation of the slave question in or out of Congress ; " and third, in the equally perfidious violation of their other pledge, to leave the people of Kansas "perfectly free" to settle the question for themselves. But whatever may be the real sufficiency of the justification of the l!»rorth for insisting upon a restoration of the Compro- mise, it does not become Mr. Buchanan to deny its sufficiency. He, as Senator from Pennsylvania, took an active part in the re-enacting and ratifying of the Compromise. In a speech, made in the Senate, he expressed his satisfaction with the pending measure for annexing Texas, "because it settled the question of slavery. It went to re-establish the 3Iissouri Com- promise, by fixing a line within which slavery was to be con- fined. That controversy had shaken the Union to its centre ; but the Compromise, should it now be re-established, would pre- vent the recurrence of similar danger. But close it noiv and it would be closed forever. Ought any friend of the Union to desire to see this question left open ? Was it desirable again to have the Missouri question brought home to the people to goad them to fury ? That question between those two great interests had been well discussed and ivell decided, and from that moment !Mr. Buchanan had set down his foot on the solid ground then established, and there he would let the question stand forever. Who would complain of the terms of that Compromise?'' He thus not only justified the legality and justice of the original Compromise, but in the presence of Southern Senators and of the country, in the very hour of making a new bargain, expounded his understanding, and what would be the under- standing of the North, as to the true import of this new bar- gain. Under the circumstances it was equivalent to a solemn public notification in behalf of himself, his State, and all the free States, that the new bargain was entered into with the 10 74 DISUNION. full understanding that it ^^re-established" and ratified the old one. We of the South always had great difficulty in understand- ing the perfect justice of the North in exacting from us the original Compromise. But Mr. Buchanan never had any such difficulty; he always considered that the ISTorth, in yielding her reluctant consent to the admission of Missouri, had ren- dered a full and honorahle equivalent. The fact that Louisiana and Florida had heen bought with the common funds of the whole nation, and the fact that the presence of negro slavery was practically almost as strong an interdict against immigra- tion from the ISTorth as if it had been expressly prohibited by law, fully justified the ISTorth in his opinion. He and they thought justice required that a portion of the purchase should be set apart for their benefit ; or in other words, that a part should be so arranged that emigrants from the ISTorth might participate in the benefits of settling the new purchase. That there is at least plausibility in this view cannot well be denied by those Southern men who, not content with the appropria- tion of nearly the whole of Texas to the South, insisted upon having the lower half of California appropriated to their espe- cial use also, by legislating slavery into it, and that too against the express wish of its inhabitants. Mr. Buchanan comes home and finds this much-admired, much-cherished Compromise has been violated, that it has been repealed, and that, too, by the very men with whom he himself had negotiated and bargained for its solemn ratification and confirmation. This confirming bargain rested upon no equiva- lent of doubtful equity. The consideration paid by the JSTorth was ample and of the most indisputable equity. When Mis- souri applied for admission she was already a part of the Union, and her citizens had a most plausible right, under both constitutional and treaty guarantees, to demand admission without restriction, and without equivalent. 'Not so with Texas. She was merely a foreign State, having no constitu- tional or treaty rights on which to rest her claim for admis- sion. It was a mere question of national policy addressed to the discretion of Congress. In the settlement of that ques- tion, the IlN'orth had every right to look to its peculiar bearing DISUNION. 75 Oil the ]N'ortli, political or otherwise. She had the most per- fect right to demand and receive, as she did, the ratification of the Compromise as some small equivalent for her assent to that which was deemed so large a hoon to the South. The Compromise, as thus ratified, must, in Mr. Buchanan's estima- tion, have stood upon an impregnable basis of both law and justice. He must have felt himself under peculiar obligations so to defend it, for he had been himself instrumental in making the bargain, and in getting the plight of Southern faith for its observance. The breach of faith, as he must have viewed it, was a wrong not merely to his State, but also to himself personally. In addition to these powerful reasons for denouncing the repeal, he found a large majority of the people of his State indig- nantly denouncing the supposed perfidy, and only a slender minority attempting to excuse it, merely because it was a measure of the Democratic party. He found that the people of Pennsylvania had elected some two-thirds, or more, of her representatives with pledges and instructions to repeal and restore the Compromise. What does he do ? Does he place himself in the van of his injured fellow-citizens to aid in ob- taining redress ? Does he fulminate denunciations against those faithless men who, as he must have thought, had thus deceived him and the people of his State ? What becomes of that firmly-planted foot of his, which he pledged himself should rest forever upon the firm ground of the Compromise ? Alas ! alas ! for the consistency and pledges of poor politicians. No sooner is the Presidential prize held forth to his eager grasp than that same firmly-planted foot is lifted up, the Com- promise kicked to perdition, and he himself becomes the su- perserviceable tool of the Democratic leaders to prevent its restoration. He turns his back upon the people of his State, to whom he is indebted for so large a bestowal of trust and honor, and in this their hour of need and great excitement, when so much in want of such an able leader as himself, he lends them no helping hand, but goes over to their adversa- ries. Recreant to every feeling of affection and gratitude toward them, recreant to his own firm, long-cherished convic- tions of justice and policy, recreant to his own pledges and 76 DISUNION. his own honor, he becomes an apostate to his principles and a political traitor to his State. He cannot complain that there is any undue severity in this stricture, because he himself has taught us how such conduct should be judged. See what he said about the corrupt bar- gain with which he charged Clay and Adams : " The facts are before the world, that Mr. Clay and his par- ticular friends made Mr. Adams President, and that Mr. Adams immediately thereafter made Mr. Clay Secretary of State. The people will draw their own inferences from such conduct, and the circumstances connected with it. They will judge of causes from the effects." Compare his conduct and test it by this rule. He renounces his pledge and his long-cherished principles, and gets the nomi- nation. " The people will judge of causes from eftects." Is it not clearly proved upon him, by his own rule, that he has been guilty of a corrupt bargain — that he has sold himself and his State for the nomination ? "Whatever the rule may be worth to fix a charge of corruption upon another, there can be no denying its correctness in judging his own conduct. ^0. IV. The position of Colonel Fremont as to the mode of obtain- ing his nomination is little better than that of Mr. Buchanan, though the want of a political record prevents tergiversation from being fastened upon him by direct proof. Public confi- dence is rightly said to be a thing of slow growth, and whilst he has done nothing, literally nothing, to earn confidence either in his capacity or integrity as a statesman, he is presented to us under circumstances well calculated to create distrust of his truthfulness and integrity of character. Born in the South, reared in the South, married in the South, and all his rela- tions and connexions located in the South, it has an unseemly look, the lending himself to Northern extremists to lead a con- test against the section of his nativity. A man is excusable for not aiding his mother in an unjust quarrel, but not for taking active part against her. Such a man is not apt to be what Western people call whole-hearted. They suspect him of more ambition than patriotism. !N^o right-minded Kentuckian DISUNION. 77 or Tennesseean could be bought into enacting tlie part be is now performing. If he believes the South radically wrong in the present quarrel, all that it was permissable for him to do was to use his influence, if he have any, in setting her right, and preventing her being led by mere passion into destructive extremes. He has adopted, in the platform of his party, an absurd para- dox, to which no man reared in the South ever did or ever can lionestly give his consent. Ignoring the fact that negro slaves were in no way and to no intent parties to the Federal compact, but are treated by it as mere property, this new dogma attempts to override and overrule the Constitution by a false interpretation of a phrase of the Declaration of Inde- pendence. Whilst claiming power in Congress to legislate for the territories, and insisting on the power to prohibit, yet de- nies power to permit slavery in a territory. A grosser absurd- ity never sprang from human invention. The power to pro- hibit is as well established by legislative precedent, and judicial recognition, as any ever exercised by Congress. It rests exclu- sively on the unrestricted power to legislate for the territories. The correlative power to permit, is a necessary sequence. It is part of the general legislative power, because, like the other, it is not prohibited. By the then laws of twelve of the thirteen States that adopted the Constitution, property in slaves was as fully recognized as property in horses. It would be con- traiy to eveiy presumption, that there was any tacit or ex- pressed limitation of tlie power of Congress over slave property in the territories. It is as plenary over that as any other prop- erty, and was indisputably so intended. 'No one can believe that Fremont honestly entertains a different opinion. His pretence of doing so can be viewed no otherwise than as a corrupt barter of his principles and opinions for the nomi- nation. Fremont knows, and the world knows, that he owes his nomination to the influence of a set of leading men, eveiy one of whom is an abolitionist of the worst stamp — men, like Seward and Sumner, who use abolitionism as a means to dis- union ; men who hold all law, human and divine, as subordi- nate to a higher law which each of them makes for himself; 78 DISUNION. each one being a law unto himself. Appeal to the Constitution as sanctioning slavery, they reply their higher law. Appeal to Christian revelation as also sanctioning it, they again reply their higher law ; and some of them have avowed that, if it could be proved that the Supreme Being sanctions it, they would renounce Him also ; and, Lucifer-like, dare to tell Him, "His evil was not good." Controlled by no moral principle, they run a muck against all law and all morals. They justify and encourage the stealing of a neighbor's property ; they avow that they would put arms into the hands of slaves, and encourage them to cut the throats of the whites. In order merely to put a reproach on slave-holding, they applaud the putting a knife into the hands of a frantic slave-mother and inciting her to murder her own infant. They applaud the hypocritical pretext with which the act was accompanied, that diabolically impious pretext which curdles the blood, the send- ing the infant hack to its God — thus insulting and defying Him for sending it into the world ; thus rebuking His imputed lack of wisdom and justice, telling Him, so ought to be treated the infant of every slave-mother He dares send into the world. The absence of that moral and legal restraint which characterizes these men is evidence of the same moral disorganization or malformation which, under other circumstances, produces the robber, the pirate, the murderer, the assassin, and the poisoner. Each of these also has a higher law of his own ; each is a law unto himself. Of all the perpetrators of crime, he who by common consent has appropriated to himself the highest degree of human odium is the poisoner. If the case can be supposed where the poisoner could, by the use of poison, produce wide-spread assassination, murder, and civil war, would not such a poisoner have attained a yet unapproached infamy ? Yet, when calmly scrutinized as to possible results and probable motives, it is difficult to dis- criminate the moral delinquency of these abolitionists from that of the poisoner supposed. They have long devoted all their talents to the generating feelings of the keenest jealousy and animosity between tKe people of the North and the South. To what end ; for men of their intelligence always have an object for persevering effort ? Not for the benefit of the slaves DISUNION. 79 themselves, for it has been proved to them, in a thousand ways, that such efforts do hut clamp the chains still closer and render the treatment of the slaves more rigorous. Not for any benefit to the free States, for they are as fully aware as ourselves of our unfortunate condition of playing the part of slave-drivers for the special commercial benefit of the free States, and to the obvious commercial detriment of the slave States. Men of their discernment can have but one motive, and that is dis- union and civil war. They cannot think they will benefit the blacks. They admit that it will not benefit, but will greatly injure the North. Why then promote disunion and civil war? What is their motive ? What can it be but the hope of gloat- ing over a servile war, which perchance may ensue, and which will cause an indiscriminate massacre of both blacks and whites? The Supreme Being is too tardy for them in punishing the crimes of slaver}^, which He has so long permitted, even from the beginning of history ; He won't do what they want ; they usurp His attributes, undertake to wreak what they think ought to be His vengeance ; and, lest the oppressors should go un- punished, they tiy to hurl a common destruction both upon the oppressors and the oppressed. Such may not be their mo- tive ; there may be some grand ulterior result which nobody can get a glimpse of, that, weighed in the scales of a cold- blooded philosophy, may seem worth procuring at even the price of all these horrors. If so, the final Judge will know whether to treat it as a case of lunacy or wickedness. But if that other be their real motive, all pandemonium will be searched in vain for the parallel of such cold-blooded atrocity. The imagination of the great poet, who exhausted this world and invented a new one for the full play of genius, never tow- ered to such a height of iniquity. The poet's arch-fiend him- self had a motive above the mere love of mischief The people of the North must cleanse themselves from the shame of breeding, educating, and countenancing such men as these, or cease to upbraid us with that unavoidable curse of negro slavery which their own venal ancestors mainly assisted in inflicting upon the South. It is impossible that Fremont can have any s^inpathy with these men, and, by suffering himself to be so used, he subjects 80 DISUNION. himself to the suspicion that he also has sold himself for the nomination. It is unfortunate for him that they, and others like them, were the most active opponents of the repeal in Congress, also in getting up the Northern excitement, in or- ganizing his party, and in procuring his nomination. What secret pledges he may have given them the world knows not ; that he has given none, his own laxity of political morals affords anything but a guarantee. Hence it is from suspicion and distrust of these men and their necessary influence over him, that the ISTorth manifests nothing like the same unanimity in opposition to the repeal that it did to the admission of Mis- souri. Hence, also, old Whigs at the North, who have been warring with the Democracy for twenty-five years, will not aid him, though they know their aid would crush the Democracy into irretrievable defeat. This, too, though they view the De- mocratic leaders as a band of incompetent and corrupt de- structives, who have mismanaged and corrupted the govern- ment in every way, who have suffered the party to be ruled by a set of reckless demagogues, who have rode the party itself to perdition, destroyed every conservative principle in our State Constitutions, and promise to do the same by the Federal Constitution. It is very improbable that the North will forbear to press its quarrel with the Democratic leaders until it has righted the wrong it thinks has been done, and requited the perfidious breaches of faith with which it charges those leaders. So long as the contest remains exclusively between the North and those leaders, no sane man can believe it will stop short of that point. On the other hand, when it comes to be developed, as it soon will be, that the Democracy has no representation in Congress from the North except a few Senators who will misrepresent their constituents, that party will be, to all intents, as purely sectional as the Republican party. It will be a merely slave State party, under the domination of Southern agitators and extremists, who do not disguise their disinclination to any amicable adjustment of the dispute, and who give every reason to suspect them of being secessionists at heart. Let either of these two parties succeed in the Presidential contest, what possible hope can there be that the controversy DISUNION. 81 will be settled during tlie next Presidential term ? Yet upon the settlement of the controversy depends certainly the peace, and perhaps, also, the salvation of the Union. If protracted for another four years, it may become so embittered as to be beyond adjustment. The important question then comes up for most serious con- sideration — can the Union survive the prolongation of the con- test during another four years ? There seems to be no salvation for it, unless the discreet, Union-loving people of the Middle States, who have but little sympathy with extremists, either iSTorth or South, can be aroused to a proper §ense of our danger, and by a vigorous effort secure the election of Fillmore, or, in the effort to do so, organize a strong conservative party. His election would be hailed every- where as a good omen of returning peace. Neither of the sec- tional parties would have to submit to the mortification of being overcome by their adversaries. The people of both sections would have full confidence in the fairness with which he would administer the affairs of Kansas. Under such an administra- tion, after the people of the Territory had fairly expressed their preference for or against slavery, the good men of all sections would concur in having that will carried into effect. Thus, and thus only, can the strife be closed. The Korth would have no confidence in the fairness of any such mode of settlement under the administration of Buchanan ; nor would the South have any confidence in one which was accomplished under the administration of Fremont. What then is the duty of the States in the valley of the Ohio, indeed of all the Middle States toward the Union and themselves in the present great crisis ? It is to manifest their determination to preserve the Union by adhering to each other; to refuse to take part in the game of showing solid fronts in a sectional contest ; to side with neither of the extremes, but by an intermediate course to manifest a determination to effect a permanent pacification of the Union ; and, if that cannot at once be accomplished, to manifest the foil}' of looking to dis- union as a possible remedy for any supposed grievance. If it be too late uoaV to bring about such a combination and expres- sion of sentiment from all the five States of the Ohio valley, still 11 82 DISUNION. Kentucky and her twin-sister, Tennessee, by pursuing this course, can place themselves in an attitude to conciliate the other three States, and bring them all together, after the pre- sent excitement, to meet the undisguised question of union or disunion, come when it may. When properly considered, that is the path of duty and interest. Let us all strive with a will to place Kentucky in her proper position, and keep her there to meet the coming danger. Geographical position, identity of habits, manners, feelings, prejudices, and interests, have bound Kentucky and Tennessee so closely together that their ultimate destiny must always be the same. The one cannot go where the other will not follow. It is not too late yet to arouse the people of these two States to a sense of the necessity of keep- ing themselves out of the present sectional controversy, and, by siding with neither, keep themselves in the attitude to per- form the office of arbitrators and conciliators between the Korth and the South. This can be done, and can only be'done, by their voting for Fillmore. Two other Border Slave States, Maryland and Delaware, according to every probability, will do the same. These four States pursuing this course, and keep- ing themselves cool during the conflict of the next four years, the Union may be saved, even though Fillmore should get the vote of no other State. Here, then, is adequate motive for every patriot to exert himself to secure the vote of those States. Every patriot out of them should give Fillmore his vote, if for no other object, for the purpose of showing the conservative, Union-loving strength in every section, and keeping it together for future use, in time of need. Let the present contest, however, result as it may, there are well-known elements of strength for a great conservative Union-loving party, whenever the undisguised question of union or disunion is presented, which gives hopeful encourage- ment for the present organization and exertions of such a party. "What every good citizen has now to do is to keep up such a visible Union-loving show of strength as to prevent the Union from being broken up suddenly, under the momentary impulse of blind, inconsiderate passion. Give the nation cool- ing time, give it opportunity to act advisedly upon deliberate consideration, and the Union is still indestructible. May God FOEEVER KEEP IT SO. DISUNION, 83 CHAPTER VII. DISUNION. Part of a Speech delivered at a public dinner given to Governor MoreJiead, in Louisville, October, 1859. Our recently elected Democratic Governor tells us, in his patriotic inaugural address, that Kentucky is firmly united in opposition to the African slave-trade, also to disunion or any disunion tendency. We of the Oj)position say amen to all that. On those questions we believe there is no difference of opinion among Kentuckians. They are topics upon which Democrats and Oppositionists can safely and appropriately commune together, even upon a festive occasion like this. His Excellency tells us that it is time the pernicious agita- tion of slavery abstractions should cease. We of the Opposi- tion so entirely concur in this, that we think that agitation should never have commenced ; that it has been kept up for no beneficial purpose, and, whilst fraught with national evil, its practical result has been nothing of substantial benefit to either section. It found us a harmonious, contented, happy people, and has sectionalized us into a querulous, discontented, jealous, jarring nation. If the cotemporaneous declarations of very many eminent Southern men can be credited, it brought us, at the last Presidential election, to the very verge of civil war and disunion. The Governor tells us and reiterates it, that tJie Union is in danger. He says the position of Kentucky is to be " ever true and loyal to the Union ; " that with her " seven hundred miles of freesoil frontier, she would become, in the event of disunion, the scene of conflicts horrible to contemplate ; that she would be re-baptized in fire and blood with her significant title of the dark and bloods/ ground." Forcibly as he puts this, he has done it none too strongly. What he says is painfully true. Kentucky would become the 84 DISUNION. Alsace of America — tlie battle-field of hostile nations. Her river towns would be laid in ashes, and lier interior crossed and recrossed with those broad tracks of ruin which hostile armies leave upon their trail. For true as it is that no quarrels are ever so bitter as family quarrels, it is equally true no hostility is so insatiate and relentless, as warfare between men of the same nation, or between fragments of what were once the same nation. The declaration of the fact from such a quarter that the Union is in danger, is therefore of startling interest to Ken- tuckians. Recklessly and carelessly to leave our State in the presence of such a peril is what no Kentuckiau would do. His Excellency, true to the obligations of his birth and position, tells us that, " regarding the Union as the rock of our safety and the only hope of mankind, he mil cling to it more closely now that it is in danger." He pledges his party to do the same. He claims it as the very mission of the Democratic party to save the Union. We who are not of that party, hail these declarations with great pleasure, and return heartfelt thanks for their utterance. We can assure him in return, that if, in carrying out his patriotic purpose, he shall find anything like faltering or lack of support in his own party, we of the Opposition will unanimously back him, in whatever he does toward "clinging more closely to that great rock of our safety." Further, if we can be permitted to say it without offence, we shall keep this pledge in fond remembrance, holding him and his party strictly to its fulfilment. It is known that disunion sentiments have for years past been industriously disseminated through the more Southern States. They have obtained most reception among the nine cotton States. Yery many of their intelligent and influential citizens proclaim the opinion that those States will be benefited by severance into a separate confederacy. On the happening of that not improbable event, the election of a Republican President, it is believed a formidable or persevering efltbrt will be made to induce those States to secede. Giving the insti- gators of the movement credit for common sense, they must be acting under the belief that they can compel or persuade Kentucky, Tennessee, and Missouri to go with them. Their only means of coercion consists in the fact that Louisiana holds DISUNION. 85 and claims tlie principal outlet for most of our exports. Before they act upon the idea that they own the delta of the Missis- sippi, and attempt to separate it from the rest of the Mississippi valley, they should remember that Kentucky, Tennessee, and Missouri, backed by the seven free States of the valley, have a word to say in that matter ; which word will be, it shall not he done. Those ten States may not descend from the position of their vast strength to utter a threat ; but whenever it becomes necessary for them to speak, and they do speak, it may be con- sidered as perfectly certain their fiat vnW be, that the delta shall not be separated from the rest of the valley, and that those ten States have not the slightest idea of going out of the Union. The valley having now fourteen States, with the near prospect of two more, will, before ten years, contain a majority of the population of the whole nation. From that time forth, its people will have in their hands the controlling power over this great nation, with the ability to shape its destiny to suit themselves. We have heard of late a great deal about the " manifest des- tiny" of our nation. "Manifest destiny" men differ as to the true meaning of the phrase. With most it means any kind of gainful robbery from weak and defenceless neighbors. But an eminent Northern politician says he is opposed to indis- criminate petty larceny by piratical gangs. He is only for grand robbery under the sanction of the Government. Down South, " manifest destiny" means the acquisition of only such territory as will suit the spread of negro slavery. Another popular politician, who is now riding his so-called popular sovereignty hobby througli the West, tells us that " manifest destiny" means the propagation of our political Koran with the scimetar, till we have acquired all Mexico, all Central America, and all the West India Islands. Believing, as I do, that we have greatly too much territory, vastly more than we do or can properly govern, and that the difficulty of its gov- ernment will be terribly enhanced fifty years hence, when we shall have a population of one hundred and twenty millions, I, of course, have no respect for this "manifest destiny" doc- trine; on the contrary', think such wild, ludicrously absurd vagaries meiit only contempt and abhorrence. The only 86 DISUNION. " manifest destiny" deserving our faitli, is that wliicli lias been so legibly written by the Ruler of all destiny in the geographi- cal configuration of the great valley of the jMississippi. The destiny thus proclaimed is, that the valley shall remain forever one and inseparable, under the control of one and the same nation. It does not mean that we will re-conquer or re-accj[uire the delta, if once separated, but it means that the delta shall never be separated from us by foreign or domestic foes. Such is the true " manifest des'tiny" of this valley. Connected with it, there is a. great and brilliant national hope, if not reason, for a firm belief that so long as the valley remains undivided, the Union will he indestructible. If we needed any illustration of the great importance which our valley has already attained, it can be found in the vast sums expended upon canals and rail- roads, by commercial rivalry, in competition for our trade, without a dollar of cost to ourselves, who are so infinitely benefited by these roads and canals. These unerring com- mercial instincts, thus equally manifested from the Korth, the Middle, and the South, point out what is, or soon will be, the great centre of population and power. The enduring bonds of commercial interest will ever bind the East, north of the Potomac, to our valley. All the fanatics in Christendom can- not sever those bonds, or tear it from us. So long, therefore, as we preserve the vallej^ from division, the Union will he inde- structihle. Who, then, can doubt the stern response that will be made to any proposition to separate the delta from the rest of the valley ? "With strength now sufiicient, or which soon will be sufficient, to control the destiny of the whole nation, how can it be supposed that we will permit ourselves to be controlled to our perdition, by so small a part as the people of Louisiana and Mississippi ? We shall do nothing so suicidal as that, but pursuing our own peculiar local " manifest des- tiny," we shall keep the Union together for at least fifty years longer, when natural increase alone will have made ours the most powerful nation on the globe. This, too, without the pursuit of any of that spurious, bastard " manifest destiny" which would earn. for us the enduring odium due to a nation of pirates and robbers. Clinging to the precepts of the great founders of the Republic, we will show to what true greatness DISUNION. 87 and glory a people can attain by " extending equal and exact justice to all other nations, whilst having entangling alliances with none." Such is the brilliant position we can achieve for our country, whilst enjoying the blessings of a well-ordered liberty, and keeping ourselves guiltless of any national crime. Let us point the rising generation to that, as a consummation worthy to inspire all the energies and fulfil the great desires of the most chivalric devotion to the cause of country, to the cause of human progress, or to the great cause of civil liberty. The power of persuasion, on the part of these disunionists, to seduce us into a new Southern Confederacy, is on a par with their power of coercion. With no commercial harbor that can float a frigate, and with no power to create a commercial ma- rine, the cotton States can have no hope of ever possessing a naval marine adequate to the protection of their commerce against the most petty naval power. Some of these disunion- ists, whilst compelled to concede, attempt to obviate this disa- greeable fact, by saying they would buy protection from some foreign power. "What a prospect this, for seducing us into their ranks. We are to give up our enviable central position in this magnificent self-protecting Republic, which holds its head high among the great powers of the world, to become the frontier appendage of a petty confederacy^ that will have to buy protection from a foreign nation. The supposed advantages to themselves from disunion are altogether delusive ; but, for us, there would not be even the delusive hope of a single benefit. Their alleged grievances against the Federal Government are altogether imaginary, but be they few or many, real or imaginary, we have none, literally none whatever. We know and feel the influence of the Union only in its superabounding benefits. It has enabled the na- tiou, whilst enjoying the priceless benefits of civil liberty, to grow in population, wealth, power, civilization, and refine- ment with a rapidity unparalleled in the annals of mankind. We are still in the full fruition of a faultless national felicity ; the unruffled current of our prosperity still reflects the un- clouded heaven of our hopes ; the bright sunshine of our yes- terdays and of our to-day gives goodly promise of a still more glorious to-morrow. In despite all this, we are asked to aid m DISUNION. in breaking up that glorious Union in whicli are garnered all our patriotic affections, all our pride, all our strength, all our prosperity, all our hope, and in which we must live or know no prosperous national life. Henry Clay was asked "when he would consent to dis- union?" His memorable response was, never, never, no NEVER. Emphatic and comprehensive as that response was, we still prefer to it, that which had been previously given by another distinguished Kentuckian to a similar question. At a caucus of Southern members of Congress, that gentleman was publicly asked whether, in a certain contingency, Ken- tuckians would not go for disunion. He promptly replied : ^'No, sir. Kentuckians view disunion as itself, the greatest of evils, and as a remedy for nothing." That is the true Ken- tucky doctrine, and it is highly honorable to that gentleman, that his instincts, or his patriot training, enabled him to give it such prompt utterance. I have long wished for an occasion publicly to thank him, in behalf of all Kentucky, for that response. In doing so now, you will be pleased to learn, that the person to whom those thanks are due, is the worthy gen- tleman whose public services and private worth are the occa- sion of this festival. The sentiment he uttered should pene- trate the mind, and live in the remembrance of every Ken- tuckian. Permit me, then, in honor of him who first uttered it, to propose for your approval, the sentiment : Disunion — The greatest of evils — a remedy for nothing. THE CRISIS AND ITS TREATMENT. 89 CHAPTER VIII. THE CRISIS AND ITS TREAT xM EN T. Part of a Letter to the Neio York Times, January 2G, 18G0. Aiming at the utmost brevity, these remarks will be con- fined to a short notice of the national danger, its cause, and the remedy. The present peril of the Union is both real and great. The Governor of Virginia, in his recent message, declares that dis- union will be the immediate result of an election of a President by the Republican party. This declaration is the more sig- nificant, the more to be heeded, on account of the man from whom it comes. He is no intemperate fire-eater ; but one who, in a long political career, has earned reputation for tem- perate, considerate conservatism. Such a man would not make the declaration, unless well convinced that it fairly represented the will of a large majority of the people of Vir- ginia. The Governors of most of the cotton States have used similar language, which has been responded to by their Legis- latures in terms equally strong. The only difference in the language used by the Democratic Senators and Representatives of the Southern States has been, that whilst some of them point to the election of a Republican as only the precursor of immediate secession, the others say that the South will forci- bly resist the inauguration of a Republican President. With all these declarations before us, it would be the ex- treme of folly not to believe that the Democratic leaders, who have the political control of Virginia and the nine cotton States, do intend, by concerted action, to accomplish at least the peaceable secession of those ten States, if the Republican party succeeds in the election. "With this belief, accompanied with the inference of a full conviction among themselves of their power to accomplish what they threaten, we must inquire 12 90 THE CRISIS AND ITS TREATMENT. as to tlie probable occurrence of the event, the happening of which they make the only contingency between us and na- tional destruction. The results of the more recent elections all tend to prove that California and Oregon are the only free States upon which the Democracy can rely with any degree of certainty. The consequence is, that from any calculation based upon apparent or manifested strength of parties, the Republican candidate must be elected. Assuming the election of a Republican, the question then is, will disunion follow ? Perhaps not immediately. Certainly not immediately, if there be any general consultation among all the slave States. The probable result of such consultation would be to wait for what they call an overt act. Kentucky, Tennessee, Maryland, and Delaware would be so firmly op- posed to disunion that their earnest remonstrances might induce the others to pause. It would, however, be only a pause, a mere postponement of the evil. If the Republican President is compelled to administer the Government, as he probably will, without the aid of a single Southerner of high character and standing in the Cabinet, the Union will almost certainly be dissolved. The five Border Slave States, so far from being able to prevent the other ten from leaving the Union, will be much more apt to be dragged out themselves. It must be remembered that there are in the South a large number of intelligent, influential men who have convinced themselves that disunion would greatly promote the interests of their States. They have been industriously and perseveringly working for the accomplishment of that end for twenty or thirty years. They will take good care that the difliculty be- tween the sections shall be left to no peaceable solution. They will provoke in every way a bloody collision with the Federal authorities. What will be the effect of such collision, on any large scale, with the excitable people of Kentucky and Ten- nessee, no one can certainly foreknow. Their young men have a strong proclivity for pitching into any sort of fight that may happen to be going on, and it is very doubtful whether their older men would have sufficient influence to restrain them. There may be gasconade, and the hope of influencing THE CRISIS AND ITS TREATMENT. 91 the election at the ^STorth, with some of those who have joined in uttering these threats, but those who are in earnest will hold them bound thereby, and urge action as necessary to Southern honor, and to prevent the whole South from falling into contempt. 'No satisfactory or reliable view can be had of the crisis with- out taking disunion as a proximate danger. The election of the Democratic candidate even would be but a postponement, not a permanent removal of that danger. A protracted sec- tional strife, whilst one of the parties is principally under the guidance of disunionists, must have disunion for its result, and that, too, at no distant day. The only solution of the difficulty would be found in the voluntary disbanding of both the Demo- cratic and Republican parties ; for so long as one of them remains in battle array the other will be sure to do the same. Every one knows how idle it would be to hope for such a solu- tion as that. There is no hope unless the nation can be drawn from the grasp of those two parties. To accomplish that, there is but one mode, and that is by an amendment of the Consti- tution to prevent the election of next fall, with all its hazards, from taking place. In attempting a remedy we must first find out the cause of the disease. The seat and cause of the present disease of our national body politic cannot be better delineated than in the following resolution recently adopted by the Legislature of Tennessee : '■'•Resolved, That in the opinion of this General Assembly, all the evils growing out of the intense slavery agitation — all the discord, alienation and bitter hatred now growing and extend- ing between ITorth and South, are the legitimate fruit, not of any necessary and 'irrepressible conflict' between free and slave labor, but of a conflict between rival aspirants in the race of ambition, ITorth and South, urged on by an inordinate greed of official power and plunder; a conflict that can only be repressed by a powerful and successful effort of the friends of the Union to rouse the people to a conviction of the reality and magnitude of the impending dangers to its existence." There are few men of intelligence, not actively and promi- nently engaged in party politics, who will not readily yield 92 THE CKISIS AND ITS TREATMENT. their assent to the perfect truth of the important proposition enunciated in this resolution. It has been the strife of poli- ticians for the Presidency, and that alone, which has brought the nation into its present perilous condition. They have suc- ceeded, by their arts and management, in playing upon that human foible, sectional jealousy ; in arraying more than two- thirds of the nation into one or the other of their parties, in what has become a purely sectional strife, having a mere ab- straction for the ostensible object of contest. There is no foreign slave territory to be acquired by means to which the nation is at all likely to consent, and there is not a foot of our own territory now free upon which slavery could be established, even though the Government were to offer a premium of two hundred dollars a head for every slave carried there. Then there is no need to fear the slave propaganda, nor need for a party to keep it in check. The whole platform of the Repub- lican party is functus officio, and by its unanimous vote on the Crittenden amendment of the Kansas bill there is no just reason to fear that the party means to adopt the non-admis- sion of any more slave States as part of its platform ; and it having repudiated again and again, in all forms, the idea of aggression upon slavery within the States, there can be no fear of its action, or need for another party to keep it in check. The whole matter pretended to be in contest between the two parties is brought down to a mere abstraction, of no practical bearing or important influence upon the interests of any section of the Union. There is, therefore, no reason why the nation should not ob- tain peace and restoration to that harmony so essential to its prosperity, if not indispensable to its very preservation, by withdrawing from their scramble the real matter of contest between them. Let us, then, immediately have an amendment of the Con- stitution, to supersede the hazardous Presidential election of next fall, and for permanent security aginst the recurrence of another like peril, to place the Presidency out of the reach of party combinations. To this end let us obtain signatures from all men of all par- ties not actively engaged in this party contest, instructing Con- THE CRISIS AND ITS TREATMENT. 93 gress to obtain such an amendment to the mode of electing our Presidents, provided it be done without infringement upon the great cardinal principle of a republic, which recognizes the sovereignty of the people over their own government. That this can be done, we have the published opinions of some among the dead of the wisest men the nation has ever pro- duced, and the unpublished opinions of some of the most enlightened and experienced among those now living. Put Congress upon the task, set the inventive talent of the nation to work, and the true, best plan for accomplishing this object will soon be discovered. Present Congress with the memorials of half a million of intelligent men from every quarter of the country, without regard to their present party ties, and our politicians will feel compelled to lay down their arms to give peace, permanent peace, from their ever-recurring, never-ceas- ing, pernicious, and perilous scrambles for the office of Presi- dent. The national peril is greater, the need of help from eveiy citizen is greater, than if we were threatened with inva- sion from a powerful foreign enemy. Will not every patriot lend his active aid to the accomplishment of so great a work? The success in getting rid of the next election requires speedy action. Success in obtaining signatures in any one city will encourage co-operation, and awaken the active industry which is alone necessary for obtaining them in every city, town, and village in the nation. The following is a brief sketch of a plan for obtaining our Presidents without the intervention of political parties, which has had the benefit of much intelligent scrutiny. Let the people of each State elect two or more Electors, in proportion to population, so as to constitute, in all, a College of about fifty members, upon the basis of our present population. The Elect- ors to be arranged in the alphabetical order of their names, and then divided in that order into four, five, or six classes. The members of each class to select an Elector from that next succeeding it, except the last, which shall make its selection from the first class. From the four, five, or six Electors thus put in nomination, the College to designate a President by some plan depending mainly on lot. This plan is presented, not as the best or only true one, but 94 PLAN FOR OBTAIXIXG OUR PRESIDENTS. merely as a specimen of tlie facility with which a competent President can be obtained, without having the office within the reach of party combinations, and without violation to any principle of republican government. The time is deemed propitious for obtaining, from the patriot- ism of our politicians, such an inestimable boon to our countiy, provided they can be made to know that such an amendment will be acceptable to the nation. They must all feel great uncertainty as to the result of the next election ; that party conflicts have already been carried vastly too far, and if not stopped, that their further progress must be accompanied with the gravest peril to the nation. CHAPTER IX. 1859. A PLAN FOR OBTAINING OUR PRESIDENTS WITHOUT THE INTERVENTION OF POLITICAL PARTIES. The following is the remodel of a plan recommended in a series of letters, pub- lished in 1840, which was a modification of one previously stibmitted to Con- gress by Senator Hillhouse, of Connecticut. {See those letters, post.) Amend the Constitution so as to procure the formation of an Electoral College, and an election of President and Vice- President, substantially as follows : 1. The people of the States having less than a million popu- lation, to elect one ; those with a million, but less than two millions, to elect two ; those with two, but less than three mil- lions, to elect three ; those with three, but less than four mil- lions, to elect four ; and those having four millions, to elect five Electors. 2. The Chief Justice, or Speaker of the Senate, or Speaker of the House of Representatives, to be the presiding officer of PLAN FOR OBTAINING OUR PRESIDENTS. 95 the Electoral College tlius formed, aiid have the casting vote in all cases of tie. 3. The Electors to be listed in the alphabetical order of their names ; and arranged, according to that order, into six classes, as nearly equal in numbers as may be, and numbered from one to six. Any surplus numbers to be distributed among the classes by lot. 4. Class one to nominate an Elector from class two ; the latter from class three ; the latter from class four ; the latter from class five ; the latter from class six, which shall nominate from class one. 5. From the six Electors thus put in nomination, two to be drawn by lot ; from whom the College to elect one for Presi- dent, and the other to be the Vice-President. 6. ISTo office to be incompatible with that of Elector. On the basis of the next census, the College thus formed would contain about fifty members. On that basis, the relative electoral power of New York would be reduced from a seventh to a tenth, or about two-fiftieths of the College. That of Ken- tuck}^, and other States of her class, would be reduced from a twentieth to a twenty-fifth. The gain would go, as it should, to the twenty-odd smaller States, most of which will increase with great rapidity durmg the next decade, and all of which will be entitled to that compensation for the loss of the vote by States when, under the present s^^stem, the election devolves on the House of Representatives. . Under this plan an active emulation would prompt the peo- ple of each State to send to the College their very best men, thereby to increase the chance of the Presidency for their State. Tlie Electors thus put in nomination would be six men, culled from the selected wisdom and worth of the whole na- tion. Either of the six ought to be equal, if not superior, in qualification to any President we have had for the last thirty years, or are likely to obtain under the present system. The plan, though nominally an amendment, would, in efiect, be rather a restoration of the Constitution to its original in- tent. By the simple process of requiring pledges from the Electors, as to who they will vote for as President, the whole scheme of the Constitution has been perverted, and the elec- 90 PLAN FOR OBTAINING OUR PRESIDENTS. tion rendered purely popular. Tliis is so entirely the fact, tliat tlie intervention of Electors might be wholly dispensed witli without producing any material change in the system. Such was not the intention of the Convention. It was not contem- plated that the President should be elected directly by the people. A proposition to that effect received only one vote. It was intended that the people should confide to uncommitted Electors, chosen by them, the power of electing the President ; and all the well-foreseen evils of a direct popular election were to be thereby avoided. But its practical operation being the reverse of this, it may well be said that the proposed plan is not so much a reformation as a restoration of the Constitution. Considerate men have long desired some mode of obtaining our Presidents, which, without infringing any radical principle of republicanism, would relieve us from the many evils of the present system. Tlie Hillhouse plan selected the President by lot from the class of Senators having the shortest term to serve. Much as this left to mere blind chance, yet it received the de- cided approval of many eminent men, and among them Chief Justice Marshall, and the distinguished William H. Crawford, of Georgia. The proposition of 1840 was to take seven by lot from a College constituted as now suggested, and the College to elect a President from these seven. Yielding to the opinions of such talented men as the late Roger M. Sherman and John C. Calhoun, that this would still leave the office too much within the probable reach of parties, the plan has been modi- fied as now presented, to meet that objection. As it now stands, whilst leaving next to nothing of probable prejudice to mere chance, it securely places the office beyond the reach of party combinations. The worst result of the worst luck could not well give us less than a very competent President, and though the person so obtained might unavoidably always be a party man, yet the chances of his being of any pai-ticular party would be so small as to preclude much eflibrt to obtain the office by party operation. The office would not be worth much effort, for though our Presidents now go into office pledged to sustain the "spoils-principle," under this plan they would be pledged to break it up and to an equitable distribu- tion of offices, outside the Cabinet, among all parties. The PLAN FOR OBTAIXIXG OUR PRESIDENTS. 97 public sentiment that will procure the adoption of the plan will enfdrce such pledges and their fair observance. The benefit to be derived from the proposed plan is mainly the avoidance of the manifold evils necessarily resulting from the present mode of election. Even the principal of those evils can here be only briefly sketched. 1. It promotes the formation of parties, and incites that bane of all Republics, party spirit. The first contest for the Presidency gave us the old Demo- cratic and Federal parties, with their twenty years' bitter war- fare. The second gave us the modern Democrats and Whigs, with their twenty years' rancorous hate and struggle. Sectional hate and jealousy, whilst the most dangerous of our foibles, are among the most available for getting up and keeping up party feuds. They have been repeatedly roused and played upon in contests for the Presidency, and even to appease the vengeance of disappointed aspirants. Jealousy of superior Southern influence in President-making, as manifested in the monopoly of the oflice for eight out of nine terms, caused ITorthern politicians to insist on the "Missouri restriction." The combining influences of a community of interest in slave property was the grievance. To arouse JSTorthern jealousy and prejudice against negro slavery was the promptly-applied re- medy. The excitement caused was great, but passed ofi" with- out much mischief, because it occurred during the Monroe " era of good feeling." The principal damage was the political death of the few Northern Representatives who had the self- sacrificing patriotism to sanction the Missouri Compromise. It is notorious that the avenging of Mr. Van Buren's sujd- posed wrongs and disappointments in reference to the Presi- dency caused the organization of the first distinct Free-soil party. Who will say that the avenging of similar wrongs to- ward Mr. Adams and Mr. Calhoun had nothing to do with the rousing of that sectional animosity from which the nation has been so long severely suflering, and from which so much mis- chief is apprehended ? One-half the nation suspects that bids for the Presidency, on the part of [N'orthern aspirants, had veiy much to do with the repeal of the Missouri Compromise. False and even calumnious as this suspicion may be, its existence 13 98 PLAN FOR OBTAINING OUR PRESIDENTS. proves liow prevalent is tlie belief of tlie injuriously-disturb- ing influence that President-making may have, and f)robably does have, on the most important legislation. Nor is that in- fluence confined to Congress ; it equally pervades most of the State Legislatures. Illustrative facts to prove its disturbing influence on National and State legislation would fill a volume. 2. It fosters the proscriptive spoils-principle. It is useless now to trace the introduction and dissemination of that principle for the purpose of crimination against any particular party, for all our parties have more or less partici- pated in its once-odious practice. We must go higher for the source of the fault. It lies in the Constitution itself, however contrary to its true spirit. It is but an inevitable, though un- anticipated incident to the mode of electing Presidents. The members of a party that assist in winning the Presidency will have their pay ; they will sufifer no denial. The corruption that the practice leads to is of little moment in party estima- tion, when compared with party success. 3. It compels a parti/ administration of the Grovemment, and parti/ administration being necessarily corrupt, it makes the Gov- ernment unavoidably and incurably corrupt, A distinguished Democratic Senator avowed it to the Sejiate as his opinion that ours has already become "^Ae most corrupt Grovemment in the world." Other Senators promptly corrobo- rated the opinion, as being theirs also, whilst none denied the truth of the charge. Whatever difterence of opinion there may be among intelligent men as to the strict verity of the charge in all its breadth, none will deny that the Government is fast tending to that foul point of degradation. If it has even now, among civilized nations, any rivals for that bad emi- nence, they must be found among some of our City Govern- ments, who are equally cursed with party scrambles for their spoils. Not only have the party debts contracted in a Presidential election to be paid, but party support at the next election has to be bought. These two party necessities have rendered con- nivance at fraud and peculation an accustomed part of the spoils PLAN FOR OBTAINING OUR T R E S I D E N T S . 09 of party victory. It must ever remain so under a purely elec- tive system, and witliout remedy, because, 4. It causes the election of President, Senators, and Representa- tives hy the same process of party combination. The consequence of tliis is, tliat all the elaborated checks and balances of the Constitution avail nothing toAvards prevent- ing abuse of power and corruption. The President is always, according to his personal character, either the subservient tool or the dictator of the dominant party that elects him. Their independence on each other, though carefully provided for by the Constitution, has no practical existence under our system of government. "Whatever his character, he has to submit to party dictation in distributing the spoils ; but in all other things, if he be a man of firmness, he dictates to his party. In a report made to the Senate so far back as 1826, Mr. Van Buren, Mr. Benton, and other eminent members of a commit- tee, distinctly exposed this pernicious effect of a purely elec- tive Presidency. In commenting on the influence of partyism upon our institutions, they proclaimed the disagreeable, dis- graceful fact thus : '■'■Those loho make the President must support him. Their political fate is ide7itified, and they m,ust stand or fall together.'' "Patronage will penetrate this body, subdue its capacity of resistance, chain it to the car of power, and enable the President to rule as easily and much more securely with than without the nominal check of the Senate." In 1835, Mr. Calhoun, as chairman of another committee, uttered similar sentiments. Hence the imperious necessity for disjoining the mode of electing our Presidents and Representatives. In this way alone can the former be placed under the proper control of the latter, instead of having usurpations and abuses of power cloaked and excused by the numerous Representatives of the party carrying the election. Our Presidents and Representatives must not have a community of interest in corruption. 5. It ostensibly gives the election to the people, hut really confers the appointment of our Presidents upon party conventions. All the machinery by which these conventions are gotten up and controlled, from the primary to the grand national assem- blage, is notoriously under the management of men little 100 PLAN FOR OBTAINING OUR PRESIDENTS. worthy of the trust. The popular power of veto upon their nominations is worth nothing. The alternative of not voting, or voting for the nominee of the opposing party, is with most men no alternative at all. Honest home-keeping citizens, who have no personal interests to serve by mingling in those party orgies, have little or no voice in the making of our Presidents. The office has become the perquisite of politicians by trade, party hacks, and tricksters. The great bulk of the nation has to take just such Presidents as these men choose to appoint. Imagine the material of which the Electoral College, now suggested, would be composed, and compare it with one of those party conventions. Recollect that, in the formation of such a College, the people would have full and perfect control, whereas in the formation of these conventions they have next to none at all. A probable benefit from the plan would be the obtaining an invaluable corps of Pepresentatives, such as are known in the English House of Commons as Independent members, or such as are allied to no party, and who hold the balance of power between parties, thus performing the valuable function of a conservative balance-wheel. If promptly acted on by Congress at its next session, the ratification by the requisite number of States could be obtained before its adjournment; and the angry, dangerous sectional contest for the Presidency of next year could be superseded. The adoption of some such plan as the one proposed is prob- ably the only feasible means of stopping the sectional party contest with which the nation is now afflicted, and averting the great danger which it threatens if prolonged during only two contests for the Presidency. If the veto-^owev of the President can be securely placed beyond the grasp or dictation of party, nothing could give such security to sectional interests against improper sectional aggression from superior numbers in Con- gress. Sectional parties and sectional strife would soon dwin- dle into what would be a merely healthful sectional vigilance. Should the plan be adopted, we might well hope that the influence of the example would procure similar reforms in the State and City Governments. THE RIGHT OF SECESSION. 101 CHAPTER X. November 6, 1860. THE RIGHT OF SECESSION. The happy union of these States is a wonder; their Constitution a miracle; their example the hope of liberty throughout the world. Woe to the ambition that would meditate the destruction of either, — Madison. Ko. I. Some thirty years ago South Carolina, feeling aggrieved by the tariff, her ingenious citizen, Mr. Calhoun, devised for her the remedy of nullification and secession ; the one enabling her, by her sole action, to nullify Congressional laws, and the other to quit the Union whenever she pleased. These dogmas were new inventions, then first made after more than forty years passed under the Constitution. It was claimed, however, that they were sanctioned by the Virginia Resolutions of 1798 and 1799 ; but fortunately Mr. Madison, who wrote those reso- lutions, was still alive and indignantly refuted the imputation. In pursuit of this visionary remedy the people of South Caro- lina met in convention, and by formal ordinance attempted to nullify all acts of Congress imposing duties on imports, with an accompanying declaration, that, if not allowed this remedy, then the State would secede from the Union. These proceed- ings were met by the proclamation from President Jackson, which, after demolishing, with most signal ability, all the sophis- try by which it was attempted to sustain these new dogmas, gave warning that forcible resistance to law — forcible secession being treason — would be treated, prevented, and punished as such by use of all the powers of the Government. Congress, concurring in his views, vested him with ample power to put down the movement by force. This action of the President and Congress received the almost unanimous approval of the nation, outside of South Carolina. ^Vhigs and Democrats vied 102 THE RIGHT OF SECESSION. with each other in enthusiastic laudations of the patriotic pro- clamation. That proclamation obtained for General Jackson- more of the national confidence and esteem than everything else he had ever done, not even excepting his brilliant victory of ^ew Orleans. There were probably not a hundred intelli- gent men in either Kentucky or Tennessee who did not cor- dially unite in this applause. The opposers anywhere out of South Carolina were only a few ultra State Rights ab- stractionists, sparsely scattered through some of the Southern States. His approvers embraced a vast preponderance of the legal lore, the statesmanship, the general intelligence, and vir- tue of the nation. If a constitutional question ever can receive an authoritative, final decision from the whole nation, the ques- tions of nullification and secession were then so settled. That national decision was given under the guidance of a thorough discussion, in and out of Congress, of unsurpassable ability. Since then a new generation has grown up, and, in the hope that the decision may have been partially forgotten or lost its influence, the dogmas of secession are again being urged as a rightful remedy for the supposed grievance of a State, in aid of disunion schemes. The instrument creating the original Federal Governmeiit bore the title of "Articles of Confederation between, the States." and professed to be only " a firm league of friendship " between the States, expressly retaining for each "its sovereignty, inde- pendence, and every power not expressly delegated to Con- gress." One of the articles declared that " every State shall abide by the determination of Congress on all questions sub- mitted to them by this Confederation," and "the Union shall be perpetual." But Congress having no power to coerce its decisions, and its powers proving altogether inadequate to an efiicient, stable, permanent Government, such as the nation desired, the Constitution was devised and adopted as a substi- tute for the federate league. In the explanatory address which the Convention directed its President, General Washington, to make to the then Con- gress, it was said : " It is obviously impracticable in the Federal Government of these States to secure all rights of independent sovereignty to each, and yet provide for the interest and safety THE RIGHT OF SECESSION. 103 of all. Individuals entering into society must give up a share of liberty to preserve the rest." Thus it was frankly notified that, by the proposed Constitution, the States would be shorn of their absolute, independent sovereignty. The address fur- ther said : " In our deliberations we kept steadily in view that which appears to us the greatest interest of every true Ameri- can, the consolidation of our Union^ in which is involved our prosperity, felicity, safety, perha.ps our national existence." In accordance with this, the introductory enacting clause of the Constitution says : " We, the people of the United States, in order to form a more perfect Union, etc., do ordain and establish this Constitution.'" Indeed, it appears from the clause in the Articles of Confederation to have been a cherished idea with the nation, that "the Union shall be perpetual," and the Con- vention itself could have had no other leadins; idea than the one which it avowed — to consolidate and perfect the Union. The previous Government having been a mere confederacy, its written compact of association bore the appropriate title, "Articles of Confederation between the States." But when the object was to consolidate and perfect the Union, upon the fiat of the nation, and to initiate an adequate national Govern- ment, no such title being longer appropriate, it was signifi- cantly dropped, and the people — not the States — ordained and established a Constitution for the Government of the nation ; that is, a form of government not resting upon the revocable consent of confederated States, but upon the paramount edict of the people amalgamating themselves into one nation, the equal citizens of a common country, to which all owed a para- mount allegiance, though still retaining, for many purposes, a distinctive, separate, subordinate citizenship in their respective States. The clause reserving the non-delegated powers " to the States respectively, or to the people,'" distinctly manifests the intention that, under the new system, there was a power in the people, as a nation, not wholly identified nor identical with that of the States. Otherwise the reservation would have been exclusively to the States, and nothing said about the people. The plan was to consolidate — not the Government, but — the Union and our nationality, and to that end to give the Govern- 104 THE RIGHT OF SECESSION. ment adequate self-sustaining powers. To enforce obedience on the part of the States, a power altogether wanting under the Confederation, the new Government was authorized to coerce obedience from their individual citizens — to coerce a State by means of direct action upon all her functionaries as individual citizens of the Union, to whom they owe a para- mount legal duty of obedience and allegiance. With this view the Constitution and the laws made under it are declared " the supreme law of the land, anything in the Constitution or laws of any State to the contrary notwithstanding." To secure this supremacy of the Constitution, and enforce the obedience of every citizen, jurisdiction is given to the Federal Judiciary over " all cases in law or equity arising under this Constitu- tion, the laws of the United States, treaties made under their authority, and controversies between two or more States." The Government being thus clothed with full power to dis- charge all its own functions without any State aid, and there being no superior or supervismg power over it, except the ballot-box, became necessarily, unavoidably — like a State Go- vernment under a State Constitution — the sole judge and exponent of the extent of its own powers. "Whatever danger of abuse there may be from the exercise of such ultimate power, it is a mere necessity of all government, an unavoida- ble incident to all practical government. It is a trust we are compelled to make for the sake of law and order. Its abuse is better guarded against in the Federal Government than any other that has ever been devised — vastly better than in the State Governments. The guards are the ballot-box and the subdivision of power among three separate, independent bodies of magistracy, together with the jealous, ever wakeful vigilance of the States, and their equal representation in the Senate. There having been so much trouble, delay, and difficulty in obtaining the Constitution, and its importance so highly appre- ciated by those who made it, they could not have intended to permit its being broken up and destroyed by a single State. Or, if so improbable a thing could have been intended, such sagacious, provident men, would not have left so important a right and power to rest upon a mere disputable inference, but THE RIGHT OF SECESSION. 105 would liave allowed it in plain language, and stated the mode of its exercise. It is not pretended that a single word of the Constitution recognizes, or can he misconstrued into recognizing, the right of secession. The right is claimed from facts outside the Con- stitution, and in contradiction of a fact stated in its preamhle. Mr. Calhoun distinctly admitted that if the Constitution had in truth heen made, as it says, by the people, or in other words by the whole nation, then there would not be a pretence for the right of nullification or secession, and such claim " would be an absurdity; " as much so as if made in behalf of a county in reference to its State. But having been unavoidably rati* fied by the people, through separate conventions assembled in their several States, he claimed that it was a creation and rati- fi.cation by States, which rendered it a mere confederacy of States, each having the right incident, as he said, to all con- federacies, of seceding when she pleases. His conclusion would not follow his premises, even if they were true ; but they are not true. He likens the Union to a partnership of undefined duration between individuals, from which each has a right to withdraw at pleasure. But there is no analogy between the two cases. It is much more like the indissoluble compact " for better, for worse," between husband and wife. Or it is more like the binding together the rights and property of individuals under an indissoluble act of incorporation from which no stockholder has a right to withdraw his funds. The Constitution is the great act of incorporation binding the States as corporate enti- ties in a perpetual Union and their citizens into one common indissoluble nationality. Such a Union as the recognized right of nullification or secession would leave us would be about as valuable as the "free-love" union between men and women. If the strong natural principle of " passional attraction" cannot secure a stable union of the sexes, still less can the so much weaker principles of justice and fidelity be relied on as the only cohesive power between States. There is no natural ten- dency to cohesion among States. The natural tendency of men, whether as individuals or as communities, is to be restive under restraint, and to kick themselves free from their harness. 14 106 THE RIGHT OF SECESSION. There is no reason, in principle or analogy, why different peoples should not, by mutual agreement, as the citizens of our States did, fuse themselves into one indissoluble nationality. The examples of its having been done are very numerous. That of Aragon and Castile is one ; and that of England and Scotland another not less illustrious. There can be no reason why the people, acting separately in their different States, should not or could not nationalize themselves by adopting a l^ational Constitution just as the people of a State, acting separately in their different counties, adopt a State Constitution. Let us test secession by a few practical examples of its pos- sible operation, and we can then better judge whether an acknowledgment of the right be at all compatible with the probable intention of the framers of the Constitution. Many Southern men have commended Mr. Buchanan's scheme to purchase Cuba at the cost of one hundred and fifty millions. Suppose the purchase made, and the Island admitted as a State into the Union. After the lapse of a few years, it would probably turn out that the Spanish inhabitants, who will always be the large majority, become discontented with the change, because of the impossibility of a cordial afiiliation of the two races. Should we permit them to secede and sell the Island to England, France, or Spain, without compensation or indemnity to us ? The nation would unanimously say, no — it shall not be done ; and if the Cubans are dissatisfied, the proper remedy is for them to sell out and move away. The same answer would be given to any State, whose retention was of great national importance. "We bought Florida with our money, redeeming her people from a Spanish despot. Who would contend that we should permit her five thousand voters to dissolve her connection with us, and sell her to a foreign power ? Texas cost us the war with Mexico, and, through that, a hundred millions, to say nothing of ten millions gratuitously given to redeem her from insolvency. Should she now try to secede, and sell herself to England or France, every man's sense of justice would be shocked with the perfidy of the attempt. With what scorn and contempt would the impotency THE RIGHT OF SECESSION. 107 of a Government be viewed wliicli wanted either power or inclination to protect itself against sucli a swindle. A stronger case than either of these could be supposed — an attempt by Louisiana to secede, with the accompanying incident of a power to transfer herself to England or France. Near sixty years ago the nation paid fifteen millions of dollars for the country of which she was then a part, redeeming her people from vassalage to a European despotism. But the pur- chase was not made for their benefit, or that of those who might go there to settle. It was made for the benefit of the whole nation, but more especially for that of all the people who then were or might become inhabitants of the great val- ley of the Mississippi. Control of the mouth of the river was deemed by all as much the larger part in value of the whole purchase. The ownership of the mouth secured to the nation an outlet to, and an inlet from, the ocean for all the vast pros- pective trade of the great valley. It also relieved us from the too close neighborhood of a foreign power in a position of com- manding infiuence upon a large portion of our people. In a word, its ownership was indispensable to the prosperity of the great empire which it was foreseen would grow, and which has already grown up in the great Mississippi valley. The im- portance of this ownership is such, that the eleven millions of whites who now inhabit the valley could afibrd and would stand a ten years' war, rather than submit to its alienation to any foreign power w^hatever, whether that of a European nation or a Southern Confederacy. It is not intended to impute to the citizens of Louisiana, or to those of the two other States referred to, the atrocious pur- pose of endeavoring to secede. They have the same right to do so as any other State, and their cases are only selected to illustrate how preposterous the idea that the nation would per- mit the permanent secession of any State, when its conquest, for the purpose of reannexation either as a State or a subject province, would at once become a national duty of the most imperative necessity. This duty to themselves the people of the great valley would certainly perform as to Louisiana, though the balance of the nation gave us no aid, or should even attempt to prevent us. 108 THE RIGHT OF SECESSION. The right of secession is, therefore, a mere question of ab- stract right not worth discussing, but for the quieting of honest men's doubts, because it can never be practically enforced, unless by so large a body of States as to throw the question of right entirely out of view, in determining whether it will be better for the nation to acquiesce or resist the attempt. When a single State or a few States attempt secession, the question will be settled upon no sublimated, self-denying principle of friendly deference to a disputable right, but upon the sterner principle recognized by the usage of nations, that power gives right. It is incredible that any large portion of the intelligent people of Louisiana can desire secession, even if it were attainable. Ever since she has belonged to the Union, she has been a sort of pet nursling. The nation has long paid an annual tax of not less than five million dollars for the protection and pro- motion of her sugar interest. That great branch of her wealth, yielding annually eighteen or twenty millions, would be irre- trievably prostrated by disunion, and the trade of her com- mercial mart materially injured, if not destroyed. Free trade and no tariff are prominent among the vaunted benefits held forth by disunionists in behalf of a Southern Con- federacy. That policy would destroy the sugar-planting inte- rest, which could not live without protection against foreign sugar. Virginia quit the disunion hunt for the sake of a much smaller pecuniary interest of her o^vn. She stopped disunion- ism so soon as she ascertained that it involved the reopening of the African slave trade, to the prejudice of her slave-raising, and her protected monopoly of the slave market. Louisiana participates largely, and much more than most of the States, in whatever benefit ensues from national disburse- ments among her citizens. No State is more benefited by the Union in the protection of her foreign trade. She knows too well the numbers and character of the hardy yeomanry of the "West to voluntarily seek or provoke a hostile collision with them. To say nothing of duty or affection, she has the most controlling motives of interest to cling to the Union. We may therefore rely, with the utmost confidence, that she will neither attempt to secede, or aid in forming a weak Southern Confed- THE RIGHT OF SECESSION. 109 eracj that will not have a commercial harbor deep enough to float a frigate, and which can have neither a commercial or naval marine, or the means of creating either. Here hes, in the non-secession of Louisiana, the abundant reason for a confident reliance that no secession movement will be successful or even seriously attempted. Without her co- operation, Mississippi vnll never think of secession. The people of Mississippi will never voluntarily cut themselves otf from free access to the ocean, or subject their products to taxation in order to reach it. They will never assume a position which ^^dll compel them to transport their cotton overland to reach an outlet at Mobile. Without the co-operation of Louisiana and Mississippi there will be no secession. South Carolina, Georgia, Alabama, and Florida, are entirely too feeble in numbers, and all the ele- ments of national strength, for a separate Confederacy. An abortive efibrt of the sort would only bring upon them the pity or ridicule of the world. It is a most uncharitable injustice to measure their sense by the ebullitions of their fire-eaters. Such men always thrust themselves forward into the apparent lead, without really possessing the influence ascribed to them. If those States were capable of such a farce as to go through the solemn forms necessary to attempted secession, all the Gov- ernment would have to do would be to take care of the forts, and by blockade compel payment of the duties, without noticing or molesting them in any other way. In less than a year they would become tired and ashamed of their folly, and quietly assume their place and the performance of their duties within the Union. But it is to be presumed that they will be guilty of no such folly. They will not attempt the formation of a Confederacy too feeble to protect their commerce from pirates on the ocean, or their slaves from fillibusters on land. If it be deemed proper to make surety doubly sure, all that will be needed is for the people of Kentucky-, Tennessee, and Missouri, in numerous meetings of popular assemblies, unani- mously to resolve that they mean to maintain the Union ; that they will not tolerate the secession of Louisiana, nor the per- secution or putting down of Union men with the strong hand by disunionists in any State attempting secession. 110 THE RiaHT OF SECESSION. No. n. Enougli has not been said, indeed too much cannot well be said, on the subject of the free navigation of the Mississippi, and the insolent attempt to control it and tax our trade. The great valley, after excluding all Texas, all Western Virginia, and Pennsylvania, and all west of Kansas, contains an area double in extent all the Union east of it, with more than five times the ability to sustain population, the advantage in climate and soil being properly considered. "With those exclusions, the valley now has a population of 13,100,000, of which 1,500,000 are slaves and 11,600,000 free. Of that free population, Louisiana and Mississippi have only 760,000. Twenty years hence, when those two States will have only a million and a half, or at most two millions of whites, the rest of the valley will have near thirty millions, if the rapid increase of the two last decades is kept up. The fact is, that, notwithstanding its thirteen millions of population, the valley may be properly said to be only w^ell prepared for settlement, and to have only got a good start in manufactures and commerce. Its capabilities in the way of population reaches at least two hundred millions, without approaching the density of European nations. Its development in commerce and manufactures, during the next twenty years, will be rapid and vast. Mexico when quieted, with Central America, South America, and the West Indies, are or will be the abundant markets for the enormous agricultural and manufacturing products of the valley, and in which she can meet no successful competitor. For all this immense trade, five-fold what it now is, Orleans is the natural, indispensable entrepot, the distributing merchant. Let the people of Louisiana pause here and think: will the eleven millions of hardy freemen who now occupy the upper part of the valley, or the more than twenty-five millions of twenty years hence, permit Louisiana to block their way to the ocean ? Will they permit her, or any foreign government whatever, to assume control over the navigation of the river for any purpose, or to tax their trade? Such an idea is contrary to every rational presumption. It is not merely THE RIGKT OF SECESSION. Ill irrational, but may bo properly termed an impossibility. No people, having the power to right tliemselves, ever did or ever will submit to such wrong and oppression. Everyman among those eleven millions believes that he has as much right to the free, unobstructed, untaxed use of the river and its marts, as he has to the public highway in his county, or the street in his town. As an evidence of this general belief, take this extract from another speech of Mr. Clay, in the great debate of 1850 : " I hope there is no one in the Senate before whose imagination is flitting the idea of a great Southern Confederacy, to take possession of the mouth of the Mississippi. I say never, iiever, NEVER will we, who occupy the broad waters of the Mississippi and its tributaries, consent that any foreign flag shall float at the Balize or upon the turrets of the Crescent City ; never, never." But even if the seceders had the rightful power to tax our trade, it would, under the circumstances, be grossly ungene- rous and unjust to do so. We not only have no power of retaliation, but we are compelled to receive their sugar and cotton free from duty ; and that sugar and cotton has the monopoly of our markets, being protected by our laws against foreign competition. What claim have the people of Louisiana to the leniency and forbearance of our eleven millions, justifying the hope that they will forcibly stop this insolent usurpation on our rights ? Did they pay the fifteen millions which its purchase and re- demption from despotism cost ? No, not a dollar. As little did they contribute towards the other millions expended in building the custom house, forts, etc. How has Louisiana grown rich, and her commercial mart been built up ? By the trade of the upper valley, the protection of her great sugar staple, yielding her annually eighteen or twenty millions, and the large amount of national disbursements in her midst. Did she fail in her hour of need to receive the protection of those bold yeomen of Kentucky and Tennessee, whose rights she is now trampling on ? Let her remember the invasion of the British army, with its battle-cry of "beauty and booty," and answer if she can without a blush. In return for all these 112 THE BIGHT OF SECESSION. benej&ts, she is, witla perfidious ingratitude, endeavoring to ruin the nation that bought her, protected her, and so liberally fostered her interests. She is trying to bring what she knows will be ruin upon her Kentucky and Tennessee defenders, and infinite mischief on all those people of the upper valley, whose commerce has made her insolent with the fat of prosperity. Can she protect herself, or can her traitor consorts protect her in her assumed independence ? Not so ; full well she knows that the most paltry naval power, by blockading the river, could compel her into ignominious submission. She trusts to our protecting arm, with the hope that our interests, if not our sympathy, will afford her aid against foreign enemies. Our trade built up her great mart, our aid will always be necessary to its safety, yet she has the cool effrontery to attempt keeping us from the free navigation of our own river, and to tax our trade in obtaining access to her markets. All this is the extreme of folly. She cannot be so insane as to trust to our forbearance under such ungrateful wrong. She has been deluded with the belief that the Border Slave States of the valley would come and join her in secession. ]^ow, when that falsehood is so thoroughly exposed, now that those States have so emphatically said they have no adequate cause for secession, and, that as to herself, she has not even decent pretext for it, will she persevere in her mad attempt at dis- union ? Will she not make a virtue of necessity, voluntarily resume her place in the Union, and not wait to be comj)elled ? She, like her consorts, has been duped and precipitated into secession. Her disunion conspirators have "fired her Southern heart" by showing how Abolitionists and Yankees have abused her institutions. Her fire-eaters have not waited her bidding to avenge her in kind. There has never been a time when they did not pay back in kind with unstinted measure. They may well be trusted for continuing to do so. They are good for that, if for nothing else. They can hold their own against the combined world, at a pelting with vituperative denuncia- tion. But then, there is the irrepressible confliot. "Whilst it was the mere nonsensical vagary of Lincoln and Seward, with which they exposed their very small pretensions to philoso- THE RIGHT OF SECESSION. llo phical statesmanship, the irrepressible conflict was cursed by the fire-eaters througli all the moods and tenses of denuncia- tion. But when they had duped their States into secession, and were made to see that they had no interest either in the territorial or fugitive slave question, they seized hold of the denounced irrepressible conflict, bolstered it up as a true doc- trine, and now make it the all-sufiicient reason for disunion. It may be that there is, and will continue to be, an irrepressi- ble conflict among party politicians, so long as the people of the two sections permit their prejudices to be played upon for party benefit. But that there has been any otherwise nation- ally injurious conflict between free and slave labor, is about the grossest falsehood that ever was palmed upon a gullible nation. Our whole national experience is in its complete dis- proof. If there has been any such conflict, we have, in its despite, prospered as nation never prospered before. During the last twenty-five years the conflict is supposed to have raged with peculiar fierceness, yet that is precisely the epoch of un- precedented prosperity to both North and South. Take the case of Kentuclv}', lying between the upper and nether stone, in the very crush of the direful conflict. She, too, has pros- pered to the entire content of her citizens. Her slaves have increased three-fold in value, and all her rich slave-worked lands nearly in the same proportion. 'No men, except cotton- planters, have prospered more, or grown so swiftly rich, as her industrious slave-working farmers. If such is the result of the irrepressible conflict, let us cling to, rather than attempt to flee from it. Let us have still more of that sort of mischief. ~We can afford to stand a great deal of wordy abuse from fanatics, for the sake of such substantial benefits. So, also, in despite of platform declarations, speeches of leaders, and Congressional resolves of the Republicans, the Southern mind was most industriously instructed into the be- lief, and the Southern heart frightened with the fear, that Re- publicans were bent upon interfering with the rights of slave- holders within the States ; that there would soon be free States enough to change the Constitution so as to give them the ne- cessary power for that purpose. To silence this calumny, and to quiet this fear. Congress passed an irrevocable amendment 15 114 THE RIGHT OF SECESSION. of the Constitution, expressly prohibiting an}i;hing of the sort. No sooner is this done than the cry is raised that it amounts to nothing; the Constitution was plain enough before, it wanted no amendment, and the act afibrds no evidence even of a disposition at the North to conciliate. Indeed, a distinguished leader of the late Democratic party has recently started the doctrine, that all constitutional guarantees are worthless ; that they can and will be "trampled in the ground." What a doc- trine to come from American, but especially Kentucky lips ! A constitutional guarantee worth nothing, even when it has eight millions of Americans to uphold it and vindicate its observance ! "What then is all our vaunted system of govern- ment, our constitutional liberty worth ? Is it all a mere cheat and delusion ? Is it all, indeed, no better worth, as he seems to think, than any other the same amount of lampblack and paper ? When men are in so desperate a condition as to urge such doctrine in behalf of precipitation, we can cease to won- der at their temerity in attempting to drive Kentucky into disunion. It is the duty of every good citizen to do all he can towards undeceiving the people of Louisiana, and letting them know that it is not, never was, never will be the intention of Ken- tuck}^, Tennessee, and Missouri, to join her in secession, and that they will not submit to her usurpation on their rights. This done, after a short cooling time, Louisiana will return. "When she does that, the Cotton Confederacy will rapidly dis- solve. Thus, and perhaps thus only, can we expect a speedy restoration of the Union, %vith an amicable adjustment of our national affairs. Since the foregoing was written, the writer has been much gratified to find that the views given here, and in his pamphlet of last January, as to the probable mode of reconstruction, are fully confirmed by that eminent Virginian, the Hon. William C. Rives, who has filled so many high offices with such distin- guished ability. In his recently published speech, he fully confirms the opinion herein indicated — that if Kentucky, Ten- nessee, and Missouri, are only true to themselves, and cling THE RIGHT OF SECESSION. 115 together, they have the abundant power to restore the Union. He says : " AYheu a plan of adjustment shall have been concurred in by both the Border Slave and the Border Free States, then the slave States in the valley of the Mississippi, interested in the free navigation and commerce of that river, will cordially unite with the powerful free States above them in such a pressure upon Louisiana as must bring her back into the Union. It is impossible that the States lying upon the upper parts of the Mississippi and its tributaries can, for any length of time, acquiesce in the possession of its mouth by a power foreign to them. "It is in vain that the Southern Confederacy proclaim the free navigation of the Mississippi as a general thesis. Look at the bill on the subject recently passed by the Congress at Montgomery, and you will see that, while they declare the principle of the freedom of the river, they, at the same time, prescribe multiplied regulations with regard to the trade upon it destined to States beyond the limits of the Confederacy, the neglect or violation of any one of which involves the forfeiture of vessel and cargo, or other heavy penalties. These are vexa- tions and annoyances which cannot but be sorely felt; and the time will come, and come soon, in case of an adjustment of existing controversies satisfactory to the Border States, when Tennessee, Kentucky, Arkansas, Missouri, and Western Vir- ginia, will earnestly unite with Pennsylvania, Ohio, Indiana, Illinois, and Iowa, in deprecating and opposing a foreign juris- diction at the mouth of the Mississippi. "This united pressure, concurring -^-ith internal causes, will, I firmly believe, induce Louisiana, at no distant day, to return into the Union ; and when she returns, the State of Mississippi must and will follow. Here, then, the line of the seceded States is broken at its centre. Texas will be isolated on the west ; Alabama, Georgia, Florida, and South Carolina, on the east ; and what rational motive can any of these States have to continue in such a condition of segregation, when, in the meantime, every reasonable guarantee shall have been obtained for the security of their rights in the Union ?" 116 SOUTH CAROLINA, DISUNION, ETC. CHAPTER XI. January, 1851. SOUTH CAROLINA, DISUNION, AND A MISSISSIPPI VALLEY CONFEDERACY. Ko. I. THE ANTECEDENTS OF SOUTH CAROLINA. The State, judged by its ruling majorities, lias not had a single patriotic sensation for tlie last thirty years. As General Jackson said, in his letter to the Eev. Mr. Crawford, she first sought disunion under the pretext of the tariff; and as he pre- dicted, on the failure of that scheme, she has been ever since diligently seeking it under pretext of the slave question. "When she commenced this enterprise, thirty years ago, her aspect, as compared with that of many other States, was one of penury and decay. She seemed to be laboring under a lethargic paralysis. With no manufacturing or mechanical industry, and but little external trade beyond the mere sale of her exports, she had no means of resuscitation by natural means. With nothing to invite influx of population or capital, both population and trade seemed to have come to a stand-still with an ominous prospect of material diminution of both, whilst most of the other States were progressing with unpre- cedented rapidity. In this state of things it was easy for her politicians to delude her into the belief that her unprosperous condition could be remedied by the organization of a Southern Confederacy, of which she would be the commercial and poli- tical centre. Hence the great unanimity with which she at- tempted her mad experiments at nullification and secession. The deep mortification for the disgraceful defeat of that ex- periment extinguished every remaining spark of her patriotism. It has never been forgotten or forgiven, but has been brooded SOUTH CAROLINA, DISUNION, ETC. 117 over until rancorous liate toward the Union and tlie nation has been substituted for whatever of patriotism she once felt. Her guiding statesmen have held disunion as their ultimate aim in all political operations. It has been untiringly pursued with demoniac hate and perseverance, and with a statesman-like ability worthy of a better cause. Their policy has been, in aid of abolition disunionists, to agitate unceasingly the slave ques- tion, for the purpose of consolidating the South into a sectional party, well knowing the necessary consequence to be the con- solidation and sectionalizing of the I^orth, together with ulti- mate disunion. Abolition disunionists and tire-eating dis- unionists have, for more than twenty years, been aids to each other in the accompHshment of their mutual designs against the Union. So early as 1835 they commenced the formal agitation in Congress, under the miserable pretext of the presentation of abolition petitions, and it has been perseveringly kept up ever since, — the bulk of the nation, North and South, all the time, honestly endeavoring to keep down the agitation. The South was indulged, at the expense of an onerous foreign war, in the acquisition of Texas, for the purpose of extending the area of slavery over five new States. But this was not done fast enough for South Carolina and her co-conspirators. A convention of Southern States was called to meet at jSTashville, under the cry of "Texas or Disunion;" but it was indignantly repulsed by the citizens of I^ashville, and failed. But five years later a Southern convention was actually held in IS'ashville with the view of promoting disunion. The convention was largely at- tended by prominent men from Carolina, Georgia, Alabama and Mississippi ; but there were only a very few from Tennes- see, and not a man from Kentucky. This convention recom- mended a Congress of Southern States to redress Southern grievances, the chief of those supposed grievances being, at that time, the refusal of Congress to legislate slavery into the southern half of California against the wishes of its citizens. The Legislatures of South Carolina and Mississippi were all that acceded to this recommendation of a Southern Congress. During the discussion in the South Carolina Legislature lead- ing members undisguisedly avowed disunion as theu* object, 118 SOUTH CAROLINA, DISUNION, ETC. and even said that, so far from having any love for the Union, it was the object of their detestation and abhorrence. Mis- sissippi was guilty of the folly of actually calling a convention to decide upon secession on account of their grievances. The agitators were sorely disappointed, and severely rebuked. The convention decided that there was no need for its call, and expressly repudiated secession as nothing but revolution and rebellion. In 1850 the South was indulged with the passage of a more efficient fugitive slave law, and all sectional questions were settled by what, it was hoped, would prove a permanent com- promise pacification. The Democratic party justly claimed the credit in obtaining this compromise, and the nation was so well satisfied therewith that its candidate for the Presidency, in 1852, secured the vote of twenty-seven out of thirty-one States. But pacification did not suit the disunion agitators. Under their influence the Missouri Compromise was repealed, with full fore-knowledge that its repeal would cause a more intense excitement on the slavery question than was ever before witnessed ; that it would probably destroy the E'orthern wing of the Democratic party; and that it would do the South no good, as it was utterly impracticable to make a slave State out of Kansas. After the repeal had given the control of the House of Eepresentatives to the Free-soilers, and Mr. Buchanan had escaped defeat by frauds and accident, instead of doing any- thing to soothe the excitement, they purposely intensified it by attempting to force through the infamous Lecompton swin- dle against the known wishes of four-fifths of the voters of Kansas. Failing in that, they actually accomplished the pass- age of the equally infamous bribery bill, whereby they inso- lently proclaimed that Kansas had population enough to be admitted as a slave State, but not half enough to be admitted as a free State. This discrimination in favor of the slavery propaganda they well knew was a grosser sectional outrage and insult than any, or all the acts of the ISTorth combined. The fraud saturation of the Lecompton swindle was so noto- rious, that a distinguished South Carolina Senator was com- pelled to admit, in afterward addressing his constituents, "that Southern honor required that the South itself should have SOUTU CAROLINA, DISUNION, ETC. 119 kicked tlic infamy out of Congress." Having thus deprived the Democracy of all footliold in tlie N'ortli, they split it into two fragments, nominate a Southern candidate for the Presi- dency and proclaim that if he is defeated, or Avhich, under the circumstances, was the same, that if Lincoln was elected, the Union should he dissolved. His election should he cause for disunion, when they themselves did the very thing to insure his election, even if the hare utterance of such a threat was not itself sufficient for that purpose. "Wliat the l!Torth, in cooler moments, may do for the purpose of conciliation we have yet to see, hut that it should have ignominiously suc- cumbed under the threat, no intelligent honorable man could have expected; eighteen millions of Americans cannot he bul- lied. The threat was no doubt worth hundreds of thousands of votes to Lincoln, and that result was what was aimed at in its utterance. No intelligent man can doubt that his elec- tion was precisely what the disunion agitators aimed to ac- complish, and most ardently desired. The grounds of their split with the Northern Democracy, and abandonment of the Cincinnati platform, upon a practically unessential abstraction, cannot be elevated to the dignity of even a respectable pretext. Disunion was the motive, the real motive. This their conduct since the election places beyond all cavil or doubt. Since 1835 South Carolina has been industriously pursuing the policy more recently enunciated by her talented and influ- ential leader, Mr. Rhett, in the following words: '■'■All true statesmanship m the South consists in forming combinations and shaping events, so as to bring about, as speedily as possible, a dissolu- tion of the present Union, aiid a Southern Confederacy y Or as still more distinctly portrayed in the language of the distin- guished agitator, Mr. Yancey: "Organize committees all over the cotton States to fire the Southern heart, instruct the South- ern mind, give courage to each other, and at the proper mo- ment, by one organized, concerted action precipitate the cotton States into revolution.'' In pursuance of this policy South Carolina, through her leaders, became a full participant in the atrocious secret conspiracy of eminent politicians and high officials in most of the Southern States to precipitate the nation into civil war in the event of Fremont's election to the Presidency. The 120 SOUTH CAROLINA, DISUNION, ETC. avowed sclieme was, witliout waiting any sanction of tlie peo- ple of the Soutli or any part of them, to precipitate the civil war by a seizure of the Grovernment with armed force. The civil war with the North, Governor Wise confessed, would be accom- panied by a " neighborhood civil war^' with the Union-loving men of the South. To meet the exigencies of the occasion he said they would arm their slaves. Whilst Senator Clingman said the Union men would be hushed by the " swift attention of vigilance committees^ A national civil war and a neighborhood civil war combined, to be carried on with the aid of armed slaves and committees of assassins, was the merciful boon prepared for the nation by these cold-blooded, remorseless conspirators, and from which we were saved only by the accidental running of a third candidate. The worst wickedness imputed, as the supposed design of the worst abolitionists, does not transcend this in infamous atrocity. It is rivaled in cruel wickedness by nothing done or attempted by conspirators since the days of Catiline. Had we not their own avowals for the facts, it would be incredible that sane men, educated men, could have seriously conspired, in a Christian, civilized country, for the perpetration of such an enormous crime. How intense and unappeasable must be their hate of the Union and the nation ! That preci- pitation, without consultation with the people, is still the desire of leading disunionists, may be inferred from the indiscreet admission recently made before the members of the Georgia Legislature by Senator Toombs, that he had no confidence in the people, and feared to trust them with a decision of the question of secession. With this understanding of the long settled views and feel- ings of South Carolina, we shall be the better able to appre- ciate her candor in her statement of alleged grievances by way of justification for her attempted secession. In the next num- ber her Declaration of Independence will be considered. No. n. SOUTH Carolina's declaration of independence. The most notable thing about this attempt of Soutli Caro- lina to break up the Federal Government and dissolve the Union, is that she has not a single complaint, fictitious or real, SOUTH CAROLINA, DISUNION, ETC. 121 not one to allege against the structure of tlie Government, or the manner of its administration. She alleges neither want of power or inclination on the part of the Government to pro- tect and promote her rights and interests. So far as the Gov- ernment is concerned, the complaint is against not what has been done, but what she fears may hereafter be done, by the prohibition of slavery in the Territories, if the Republicans should hereafter obtain the control of the two houses of Con- gress. To say nothing of the great improbability of that con- tingency occurring, if it were actually to occur, such a prohi- bition would furnish only the flimsiest pretext for so mighty a revolution. Such a prohibition, if it had not to encounter the decision of the Supreme Court, denouncing it as void and unconstitutional, would, if legally valid, accomplish nothing which the laws of climate and trade have not already irrevoc- ably accomplished, there being no Territory into which slavery could be introduced, by any encouragement, for at least fifty years. Such a prohibition would be no novelty in our Govern- ment. It was established cotemporaneously with the Govern- ment as to all the country north of the Ohio ; it was the basis of the Missouri Compromise, made, principally, by Southern votes ; it was part of the Texas bill of 1845, passed with the aid of a large majority of Southern votes, and which applied it to the whole or nearly the whole of the Territory upon which it could now have any practical bearing ; and it was applied to the Oregon bill, which received the approval of the Southern President, Polk. Such examples would relieve the prohibition, if actually made, from the imputation of an unmistakable dis- position in the North wantonly to oppress the South. The sum of this complaint is, the alleged fear of an improbable occurrence, which, if it were actually to happen, would work no substantial prejudice to South Carolina, or any other South- ern State. The other alleged grievances are, first, the non-rendition of fugitive slaves ; and second, the election of Lincoln. The grievance from the loss of fugitives is very small, if any, to South Carolina. She probably has not lost ten, in as many years, by their escape into a free State. There is no kno-uTi instance of any citizen of hers ever having been obstructed in 16 122 SOU.TH CAKOLINA, DISUNION, ETC. the reclamation of a fugitive. In tlie total absence of any- plausible grievance of her own, or of any other cotton State, she has been compelled to try to avail herself of a grievance confined almost exclusively to the Border States. "We of those Border States have not the sensibility to feel an insult when offered, nor the sense to appreciate an injury from which we are daily suffering. She, therefore, kindly steps in to vindicate our honor, and resent our injuries. So intense is her disinter- ested chivalry that she will resent the insult, and right the wrong, even at the expense of all her patriotic feelings, and all her duty of allegiance to a Government under which she has lived in peaceful prosperity for eighty years. Such is her self- sufficiency in judging our suffered insults and injuries, that she deems it wholly superfluous to consult us as to the mode or measure of the redress. Had she condescended to do this, she would have been told that her remedy was worse than the disease ; that instead of promising alleviation, it would cer- tainly cause a tenfold aggravation of the complaint ; that for every fugitive we now lose we should certainly lose at least ten, after disunion, on the slave line. Nor is this all. She would have been further told that the effect of placing another Can- ada upon our immediate border, in facilitating the escape of irreclaimable fugitives, would be to create a restless anxiety and continued efforts at escape, such as to render our slaves nearly worthless, and compel their exportation. Thus to rem- edy the loss of a few, we should suffer the certain loss or deprivation of the whole. iN'or is this unknown to her ; she cannot affect to be so igno- rant. Hence she allows no consultation about the redress of our peculiar wrongs and insults. Her late Governor, Gist, had the impudent frankness, in his recent message to her Legislature, to divulge her very dis- interested policy upon this subject. Having made up her mind to disunion for the sake of re-opening the African slave trade, or for the sake of some other supposed local advantage of her own, or for the sake of vengeance in her gratification of her hate to the Union and the nation, her policy was to precipitate as many of the other cotton States as she could into disunion also. She was to trust to the assurances of her SOUTH CAROLINA, DISUNION, ETC. 123 co-conspirators for tlie immediate co-operation of some four of tliem, and to the example of the five for drawing the other cotton States after them. The co-operation of the Border States was neither expected or desirable. For a time, it would be better for the Southern Confederacy for those States to treacherously remain in the Union as a protection to them asrainst the North. But this was to be done under the full conviction that they would thus force upon the Border States the unavoidable alternative of " emancipating their slaves, or joining the Southern Confederacy y This sort of dictation toward such States as Maryland, Vir- ginia, North Carolina, Kentuclsy, Tennessee, and Missouri, is a modest specimen of the arrogant self-importance of a paltry State, with only some three hundred thousand effeminate whites, and four-sevenths of whose whole population are black. She and her colleagues are to form a Southern Confederacy, adopt a Constitution imperatively re-opening the African slave trade, or enforcing their cherished theory of free trade, direct taxation, and no tariif, with the full belief that they will coerce the Border States to join them, notwithstanding such a Con- stitution, under the pressure of necessary emancipation as the only alternative. A paltry State whose contributions to the Government, in the payment of duties and postages, does not near compensate the expense of furnishing her with mails, and a few custom-house and judicial officers, to reach at a single bound such a height of arrogant, dictatorial insolence, is beyond all example. Yet when thus recklessly pursuing her treasonable schemes for her own peculiar local benefit, regardless of the injury she may inflict on others, she modestly expects our sympathy and protection, whilst she is perpetrating her treason, and ac- complishing our destruction. In despite her grossly insulting, dictatorial arrogance, we are expected, submissively, to place ourselves under the self- assumed guidance of crack-brained fire-eaters, who have sig- nalized their statesmanship by rendering ours, according to the admission of one of themselves, " the most corrupt Govern- ment in the world ;" who have further signalized their capacity by breaking down the most powerful political party we have 124 SOUTH CAROLINA, DISUNION, ETC. ever had ; who are holding out as among the chief allurements to disunion, and benefits of their Southern Confederacy, the reopening of the piratical slave trade ; a traffic that is de- nounced as infamous by the Declaration of Independence, and the concurring voice of all Christendom ; a traffic so infamous that the nation, with almost perfect unanimity, by her laws, classed it among the most detestable crimes, and awarded it the punishment due to highway robbery and murder. We are expected blindly to confide to such men the making for us of a new Confederacy, and new Constitution. These fire-eating gentry must excuse us. Kentucky ac- knowledges to no admiration for them, nor to any admiration or special partiality towards South Carolina. She can have no particular sympathy for a State that requires a property quali- fication for her representatives, — a State that submits herself to the government of an aristocracy of nabobs, one of whom proclaimed in the United States Senate the doctrine that " laboring men are everywhere the mud-sills of society," that " every man is a slave who lives by the wages of his labor." Thanks to the patriotic "Working-men of Louisville," who recently poured forth such a heart-warm, indignant protest against disunion, this nabob may now learn that neither they nor their numerous brethren of the great West will ever be- come the mud-sills of his impotent fire-eater Confederacy. Thanks, ten thousand thanks are due to those working-men for the outpouring of their unadulterated, strong, patriotic feelings, which has given to sorrowing, almost des]3onding hearts, the only glad pulsation that they have known during weary months of gloom. They have shown how Kentuckians will always feel and speak when they assert their manhood, and cast off the fetters of party ties and political leaders. They have shown that there are still real, live Kentuckians among us, worthy of our proud State, and the stock from which they are descended. With aching hearts, listening ears had long been waiting, almost in despair, for the true ring of the right Kentucky metal. It has come, at last, and thanks to the working-men of Louisville that it has. It is true that some of the States, but not so many by nearly one-half as charged by South Carolina, have grossly violated SOUTH CAROLINA, DISUNION, ETC. 125 tlieir duty and the Constitution by abortive attempts of tlieir Legislatures to nullify the fugitive slave law. The law may need amendments in some of its details, to render it perfectly just, and especially better to guard against its being abused for the purposes of kidnapping. But that affords no justifica- tion for those attempts at nullification, which ought to be swept from the statute books of all the States. This the Border States have an interest in demanding, and in due time will demand under the penalty of retaliatory legislation. A slight application of the lex talionis by Kentucky would soon compel Ohio to repeal her obnoxious statute. She is the only one of our three near neighbors that has resorted to such statutes. Indiana and Illinois have habitually performed their duty towards us in this particular. A large majority of our recaptured fugitives have been taken by their owners, or by the citizens of those States, without the aid of any ofiicers of the law. Many years ago, when the fugitive slave law was much less efficient than now, Kentucky sent commissioneVs to the Ohio Legislature asking a statute to supply the de- ficiency, and the request was promptly granted. A similar application made now would, no doubt, result in the repeal of the obnoxious statute. It is true it has never had any effect in preventing the rendition of any fugitive upon which the Federal officers could lay their hands. The statute is treated by every one as a mere nullity, and there has never been a prosecution under it ; still it is offensive to Kentucky, tends to create bad feeling between the two States, and ought to be repealed. It was passed during a period of high excite- ment and resentful feeling, resulting from the repeal of the Missouri Compromise and the maltreatment of Northern men in the management of Kansas affairs. Ohio has had time to cool off, her resentment will be appeased by the admission of Kansas as a free State, and she is now in a mood to listen to our remonstrances, and see and do what is so essential to her own honor, to say nothing of justice to us. No doubt, on the application of Mar3'land and Virginia, for the sake of good neighborship, Pennsylvania will now do the same. The repeal of the nullifying statutes of Pennsylvania and Ohio would remove most of the Southern discontent against such legisla- 126 SOUTH CAROLINA, DISUNION, ETC. tion, so far as it is based upon tlie actual loss of fugitives. After they have passed through those two States the chance of recapture is so very slight that they are not worth pursuing. The retention of such statutes by the other States would be of no substantial injury to the South, and only serve as degrading mementos of abortive efforts of impotent malice or revenge. This is the right method for settling disputes between the States ; but if that fails, we still have adequate remedy in the retaliatory legislation, recommended by Mr. Calhoun, as the true mode of redress against offending States, without a resort to disunion, which should be discarded from every true Ameri- can's mind as a remedy for nothing. Such a remedy is so grievous and costly, that sound minds have long settled in the belief that it can never yield adequate compensating benefits. That has always been the doctrine of Kentucky statesmen. The memorable answer of Mr. Clay to the question when he would consent to disunion, was the reiterated " never, never^ NEVER." Disunion on the slave line carries such obvious and inevitable destructive results to Kentucky, Tennessee, and Missouri, that no Utopian projector of a Southern Confederacy has ever yet had the ingenuity to suggest even the plausible semblance of any compensating benefit to those three States. No. in. THE SOUTH CAROLINA DECLARATION OF INDEPENDENCE. "Why all this loud modern clamor against the attempts of certain States to nullify the fugitive slave law? Is an at- tempt at nullification such a novelty to South Carolina ? Some of her fire-eaters have recently declared, in her convention, that they had always considered the law unconstitutional, and if so, it cannot be very blameworthy to attempt its nullification. But if otherwise, why has South Carolina never formally pro- tested against those attempts ? Why has her delegation never asked Congress to unite with her in such protest ? And why has she never resorted to the remedy for such grievances, that retaliatory legislation advised by her great leader, Calhoun ? "With what decency can she claim such abortive attempts at nullification, as sufficient cause for disunion, when her own SOUTH CAROLINA, DISUNION, ETC. 127 people, and those of all the other extreme Southern States, have for years been successfullij nullifying our neutrality laws, and laws against the piratical slave trade, which she and they have practically re-opened ? With what greater propriety can she, or those other States, complain of obstructions to the re- covery of fugitives by mobs of free negroes, and the dregs of !N'orthern States, when she, and those her neighbors, allow mobs, under the countenance of the most respectable mem- bers of their society, to habitually insult and maltreat ISTorth- ern men and deprive them of their constitutional rights ? The instances are very numerous, where Northern men of respecta- bility have, without cause, other than that of their Northern residence, been compelled to leave unfinished business and depart from those States under the threat of lynch law. Some men who have been settled in those States with their families have been compelled so to leave for no cause but their North- ern birth, or, perhaps in addition, because when interrogated they would not admit that slavery was a divine institution. How many have been actually murdered for no other cause, is a dark secret which will never be fully disclosed. It is sus- pected that there has been nearly as many of such murders as there has been of owners obstructed in the recovery of fugi- tives. The instances of the latter are certainly not one in twenty, perhaps not one in fifty, when compared V7\i\\ the in- stances in which Northern men and women have been cause- lessly driven from the extreme Southern States, in contempt and despite of the express constitutional guarantee of their right to be there. Yet it is expected that we shall adopt the quarrel of men who thus perpetrate actual, effective nullification, and aid them in ruining this great nation and ourselves, because of attempted nullification by others. "We had thought, we of the Border States had thought, that we had something beside our large interest in slavery that was worthy our care and even our afifection. Among these are, our whole country, our whole nation, our several States, the great cause of civil liberty here and elsewhere, now and hereafter, the great cause of republican confederated Govern- ment, the love of peace and odium for civil war, the love for our children and their posterity, the strong desire for national, 128 SOUTH CAROLINA, DISUNION, ETC. State, and individual prosperity, all dependent, together with the safety and permanent success of the slave institution itself, upon the preservation of the Union. But even if the slave institution were not thus dependent, we have no reason to deem it so transcendently important as to require us to over- look, or disregard entirely, for its sake, all those other great interests and natural feelings. Still less should it require us to discard all sense of justice, approving indiscriminately everything done in the cause of the slavery propaganda, and censuring everything done by the partisans of free-soilism. "We have the right, as it is our duty, impartially to weigh the faults on both sides, and many of us certainly do believe that the present crisis is full as much the fault of the Fire-eater Disunionists as of the Republicans ; and on the score of nulli- fication, that the former are more culpable than the latter. The only other great cause of complaint made by South Carolina, is the election of Lincoln. This cause for disunion has been so often discussed, and its insuiliciency proved as a thing by itself, that it need not be dwelt upon. But it is alleged that the election of a man of his principles indicated such hostility against slavery as to prove a settled purpose to abolish it. He acknowledges to a strong prejudice against it, that he believes it to be morally, socially, and politically wrong, that it would be all the better for the country if it had never existed ; but as it has grown up under the sanction of law, that Congress ought not to interfere with it in the States, even if it had the power, which he distinctly says it has not. He further says that the South is entitled to an efficient fugitive slave law, which it is the duty of the Government to enforce, and if all power over the subject of slavery were given to him, he does not know what he could do with such power, for the permanent benefit of either the blacks or whites, and certainly should not exert it for the purposes of immediate emancipation. Now, however objectionable to the South some of these opin- ions may be, yet it is an undoubted fact that these very same opinions were held by every President we have ever had, unless Jackson, Tyler, Taylor, and Polk be exceptions. But then it is said, there is his "irrepressible conflict" doc- trine, which is a novelty unknown to any of our Presidents. SOUTH CAROLINA, DISUNION, ETC. 129 True it is a novelty, and wliat is mucli worse, as arrant non- sense as ever fell from the lips of man. It first came from a Virginian, now a member of Congress, of imputed disunion proclivities, and probably uttered in behalf of disunion. Mr. Lincoln adopted the significant phrase, together with the theory it implies, as an argument in favor of free-soil, and Mr. Seward took it from him and became its putative father. But with Mr. Lincoln it is a mere absurd theory of which he proposes no further practical application than as a justification for slavery prohibition in the Territories. The Fire-eater Disunionists raised such a clamor against the phrase as to make it a most potent bug-bear all through the South. Yet strange to say, no sooner did they cast ofi" their disguise, and avow themselves disunionists, than they adopted the whole theory in its fullest extent, and use it as a main argument in favor of disunion. They now say, sure enough there is an irrepressible conflict between free and slave labor, and there- fore the Union ought to be dissolved on the slave line. Thus they convert his absurd speculative theory into an indisputable fact, though it is clearly disproved by the nation's long ex- perience of more than a century, and make it the pretext for most tremendous practical action. Free and slave labor have been operating side by side for eighty long years, in adjoining States and in the same State, even closely intermixed in towns and on farms, with a prosperous success. But they further charge that Lincoln was ridiculous enough to say that a house divided against itself must fall — that the States must become all slave or all free — and as the IS'orthern States won't become slaveholding, and as the house won't fall, slavery is in the process of ultimate extinction. Seward was silly enough to adopt, also, this absurd, unstatesmanlike theory ; but neither of them proposed to aid the theory, or the verifi- cation of their fanciful opinions by any action on the institu- tion within the States, but spoke of it as what was to occur in the remote future, centuries hence, from natural causes alone, such as the irrepressible conflict. The disunionists have also adopted this shallow theory of the divided house. They insist upon it as a certainty that the house must fall — that there is 17 130 SOUTH CAROLINA, DISUNION, ETC. no use in waiting to see whether it is going to fell ; and, there- fore, they hasten out of it. They have fally adopted and put into practical use the "higher law" doctrine imputed to Seward in its worse sense. They have succeeded in fastening great odium upon him by inculcating the belief that he meant there was a higher law which would justify him in disregarding the Constitution. They are now doing themselves the very thing, for the sup- posed desire to do which they heaped such unstinted abuse upon him. They too now avow a higher law, which justifies them not merely in disregarding the Constitution, but in break- ing it down and trampling it under foot. The right of seces- sion, on which they are acting in their efforts to accomplish our destruction, is their higher law, and of a so much worse type than his, that whereas his only contemplated probable evasion, theirs is to be carried out by actual treason and civil war. By thus fully adopting the doctrines of the irrepressible con- flict, the divided house and the higher law, the disunionists are vindicating Lincoln's pretentions as a true prophet, and dignifying the jejune sciolist vagaries of him and Seward as the teachings of the true philosophy of government. There can be no truer utterance than that of a resolve of the Democratic Legislature of Tennessee, which says : "All the evils of the intense slavery agitation — all the discord, alienation, and bitter hatred between North and South — are the legitimate fruit, not of any necessary conflict between free and slave labor, but of a conflict between rival aspirants for official power and plunder." That great vice of a Republic, party feuds, together with the dextrous management of the disunionists, have brought about the present crisis. For party and disunion purposes the slavery question has been agitated until the whole nation has been sectionalized, byplaying.upon the opposite prejudices of North and South. The chagrin and hate caused by the defeat of the Democratic party, has been a great aid to the disunionists in precipitating the rebellion with such surprising rapidity. If disunion should come, it will be properly ascribable to the scramble of parties "for official power and plunder," rather than to the irrepressible conflict. SOUTH C A R L I X A , D I S U N I N , ETC. 131 Aversion to aud apprehension of the Democratic party is one of the main reasons why conciliatory concessions cannot now be obtained from the iN'orth. If the Democratic party coukl be disbanded, there is no doubt that the Republican party would be prostrated before the next Congressional election. The South Carolina manifesto says that when Lincoln be- comes President, " the slaveholdiug States will no longer have the power of self-government or self-protection." Her apolo- gists also say, more distinctly what she means, that if not now, the South soon will be unable to protect its slave property against Northern aggression. This, if it were really felt, would be a dastard fear. But they who pretend to feel it are no cowards, and are hypocritically simulating an apprehension not felt. There are no words to express the scorn due to the affectation of such fear as a paltry pretext for disunion. Ken- tucky lies right in the path of any such aggression, and must be the first to bear the brunt, yet she feels no fear for her pro- perty. In the calm self-reliance of proper manhood she scorns all such danger. Her property is amply secured by the Con- stitution against all approaches of the law, and she cannot conceive of any body of men having the temerity to cross her border without law, to rob her of her property. She has the most undoubting confidence in her ability to protect herself against such lawless violence. Even supposing that most im- probable event that the Federal Government should become active participants in such an aggression against the South, are not her eight millions of people competent to their self- protection within the Union against so inefiicient a Govern- ment ? If not, how can they protect themselves against the North when it becomes a hostile, separate nation ; how protect herself against any other powerful nation ? Within the Union we should always have a divided North to resist, whilst out of the Union the united strength of the whole North would be arrayed against us. No Kentuckian would abate a single dollar in the price of his slaves on account of any such danger. The fear ought to be still less, if possible, farther South than ■with us. There is really no such fear felt ; it is all pretence, gotten up as a pretext for disunion. What a slender induce- 132 SOUTH CAROLINA, DISUNION, ETC. ment do tliey afford us to join a Soutliern Confederacy, when thus avowing its incompetency to self-protection ! Though the eight millions are superabundantly able to pro- tect themselves within the Union, yet their ability to properly protect themselves out of it against the eighteen millions who will be made inveterate enemies by the very act of separation, may well be doubted. By a very probable union with the British possessions, the North would at once become the owner of the largest commercial marine in the world, and upon that basis could soon create a naval marine equal to that of Eng- land. With a hardy, enterprising population of more than twenty millions, and with such a navy, or even the tenth of it, how could our eight millions cope with them ; how, indeed, even without such a junction with the British colonies ? With our ports blockaded, our whole commerce stopped, our agri- cultural products left to rot on our hands, the sinews of war dried up among us, we could be coerced into an ignominious submission without even an invasion of our long line of unde- fendable inland border. If we wanted the consolation to be derived from the glory of well stricken fields of battle, we should have to incur all the disadvantage of being ourselves the invaders. The South would exhibit the impetuous valor of the French, but it would be met by the stubborn courage of the English. The ultimate victory would be on the side of the greater numbers and the largest purse, aided by the only naval force. Though only little more than double our num- bers, the North would have more than quadruple our military strength. Yet we are seriously asked to give up our present prosperous condition, our present position of perfect security in the very centre of a powerful nation, to join an imbecile Confederacy that must forever remain in a condition of de- grading, mortifying inferiority to its more powerful neighbor. And all for what ? For the shallowest, flimsiest pretexts that ever were urged for severing a great prosperous nation into two hostile parts. Aye, but the Republicans threaten that if they ever get the power slavery shall be excluded from the Territories, and though the laws of climate and trade have inexorably pro- claimed the exclusion without any aid from Republicans, still SOUTH CAROLINA, DISUNION, ETC. 133 tlie threat is an insult to the South, and Southern honor cannot brook an insult — we must dissolve the Union for revenge. K this be insult or injury, it is one which the South patiently and prosperously endured for sixty-four years, and in the instance of the Missouri Compromise it was inflicted by the procure- ment of nearly all the eminent men of the South. For this the Government of this great nation must be broken up, and the vast commercial and political interests of the South thrown into irretrievable ruin. This may be fire-eater chivalry, but with other people it will pass under a less polite designation. Kentucky will never put herself under the guidance of men who advise the cutting of her own throat to revenge an insult actually given ; still less will she follow the guidance of those who would advise a man to blow out his own brains to avoid an insult or an injury which is only threatened. This insult and Southern honor doctrine, if it is accompanied with a par- ticle of practical sense, must mean to dissolve the Union for the purpose of enabling the South to declare war against the ITorth ; for otherwise the honor will be lost, and the insult unavenged, just as much as if the South remains in the Union. Let the proposition, then, be stated in plain terms — the South secedes that she may go to war with the North. No. IV. A MISSISSIPPI VALLEY CONFEDERACY. "When a sensible people break up an old Government for the purpose of forming a new one, among the most important sub- jects for consideration Avill be the probable stability of the pro- posed new Government. To pull down an existing Govern- ment, even when bad, is an achievement of comparatively little merit ; but to erect upon its ruins a stable, good Govern- ment, is the very highest achievement of human wisdom. It is for such an achievement that our fathers have, heretofore, stood as the exemplars of the world, and received its admira- tion and applause. Let us then inquire into the probable sta- bility of a Confederacy of all the Southern States. As to the rickety concern, a cotton State Confederacy, its probable dura- tion is not worth talking about. Its durability and prosperity 134 SOUTH CAROLINA, DISUNION, ETC. would be just what ought to be expected from fire-eater wis- dom. A Southern Confederacy would commence its career with a dower of hate among its citizens towards each other, which has seldom prevailed in a nation without bringing civil war. This might not, and probably would not, be the result in this instance, because they could and would be avoided by the milder modern process of secession. The hate which the Union men would bear to those who had dragged them into the Con- federacy, would be just what the Fire-eater now bears the Ab- olitionist. Hate begets hate, and Fire-eaters would reciprocate the feeling most cordially. There would be no great interest of reciprocated benefits, such as that now subsisting between the ISTorth and the South, to silence and overcome such feel- ings. The Eastern and Western cotton States would be mere rivals and competitors in the same branch of business without any commercial intercommunication. The two cities of Charles- ton and New Orleans, who are the promised recipients of nearly all the anticipated benefits, would start as rivals, and make the effects of their rivalry- felt before the Confederacy was even clothed with its new harness. The small amount of trade that would ever reach Charleston from Kentucky, Tennessee, and Missouri, would be a constant bone of contention between them. Louisiana would soon agitate, and successfully agitate, for a Southwestern Confederacy. The thing certainly would not last through the first vigorously contested Presidential elec- tion between an Eastern and "Western candidate. There would be nothing to keep it together, no love of country, no mutual pride in a powerful, prosperous country, no bright memories to stimulate a national feeling; but in lieu thereof the enduring hate of those Union-loving men who had suffered under the violation of all the patriotic feelings they ever knew, or Avish to know, and the rending asunder the strongest ligaments of the human heart. Even the fact of slaveholding, though so violent an incentive to jealous sectional passion, and the main cause of the Confederacy, would do little to keep it together, because it would cease to be even a peculiarity where all would be slaveholders. Its disadvantageous comparison with its more prosperous neighbor, its proven incapacity to take rank among SOUTH CAROLINA, DISUNION, ETC. 135 tlie more respectable nations, together with, the disappointment of all those golden dreams with which we were seduced into disunion, would make its citizens contemplate the Confederacy with contempt and loathing. The smallest amount of sectional jealousy, of conflicting sectional interest, would at once rend it into two parts. How many other sub-divisions it would ulti- mately fall into it is needless to speculate. Gloomy as the prospect is, we must make up our minds to the stern fact, that in less than ninety days eight cotton States will have agreed to unite in another Confederacy, and the chances are, that during the present year, Virginia and Xorth Carolina may join them. The question then will be up for consideration by our three Border States, Kentucky, Tennes- see, and Missouri, what shall they do ? The question is already agitating all their citizens in every neighborhood. Neighbor and neighbor, friend and friend, brother and brother, and even father and son, are already quarreling over it. They are doing this upon a false issue. They are quarreling as if the only alternative for these three States was to remain in the Union, or join the South. This is a great error. Such is not our only alternative. "We have a choice vastly better for us than either of those in such a contingency. It is to aid in forming a 3Iis- sissippi Valley Confederacy. As a relief to the manual labor of composition to an old man, he will reproduce here what he wrote on this subject two years ago, and published in a series of letters addressed to Hon. J. J. Crittenden : " In answer to a claim made on you, Mr. Crittenden, as a Southern man, to aid the South in perpetrating the Lecompton iniquity, you properly said you could not be influenced by such consideration ; but, even if you could, that the South had no such claim on you : that Kentuckians were neither Northern or Southern, but were Western people. You reminded them that there was such a section of our country as the great valley of the ^Mississippi ; that Kentucky was in the centre of that val- ley ; and that, if she belonged to any section, the whole of that valley was her section. In so acting and in so urging, you have earned the thanks of every Kentuckian. It was time that the politicians should be informed of these facts ; and that, in their 136 SOUTH CAROLINA, DISUNION, ETC. treasonable macliiiiatioii for splitting up our country into sepa- rate confederacies, they must bear in mind that our great val- ley, our section, is one and indivisible. "An eminent Democratic Senator from Soutb Carolina, in projecting, in debate, a Southern Confederacy, seemed to have remembered our valley, and to have had some appreciation of its value. In setting forth the magnitude and importance of his proposed Southern Confederacy, he very complacently ap- propriated the whole valley as a mere appanage of the more Southern cotton-growing States. The extreme modesty and reasonableness of this appropriation will be apparent when we recollect that those States are only nine in number, with a white population of not more than three millions, — whilst the great valley, with its appendages, Michigan and Texas, already con- tains fourteen States, with a large portion of two others, and a white population of more than eleven millions. Leaving out its four cotton States, the valley contains a white popula- tion of more than ten millions. Counting only the settled por- tion of its territory, excluding all but a third of Texas, and going no further west than Kansas, the valley contains double as much territory as all the States east of it. When its popu- lation is only half as dense as that of Xentuck}^, or one-tenth that of Massachusetts, it will contain a population of one hun- dred millions. If the rate of increase indicated by the last two decades of the census is kept up, it will, in the short space of ten years, have fifteen millions of whites. K not so now, it is the predetermined seat of American empire. In less than ten years its absolute sway as mistress of American power will be uncontrollable and indestructible. " The diversity of climate in the valley, and of agricultural, commercial, and industrial pursuits among its people, serves to produce a homogenity of commercial interest ; whilst its geo- graphical position compels it into unity as the common home of one, and only one, people. A most prosperous home it has been. It has increased in population and wealth with a rapidity never paralleled in the history of the world. Unmixed pros- perity reigns throughout its wide bound. Its march is onward, rapidly onward, to still greater strength, wealth, and prosperity. It knows no stagnation anywhere. It is rearing a hardy, Indus- SOUTH CAKOLINA, DISUNION, ETC. 137 trious, vigorous race of freemen, such as the world never saw. It honors, encourages, and rewards all honest labor, whilst it scorns the sluggard. " This is the mighty home of ours which this modest Caro- linian would appropriate as a mere appendage to his nine cot- ton States, with their three millions of whites, in the formation of his proposed Southern Confederacy, — States, one-third of whom are laboring under a lethargic paralysis, like that of their worn-out, poor land ; who dishonor and decry manual labor among whites, and sent Senators to Congress to denounce all white men as slaves ' who live by the wages of their labor,' — States that have not sufficient mechanical skill and industry to manufacture their own plows and axes, nor their hats and shoes, — States who know no manual industry but that of the slave, and the bulk of whose population that have not made their escape to richer lands are sluggishly attenuating a languid, sluggard existence under the enervating influence of their cli- mate. The least arrogant shape in which the Senator's idea can be presented is, that our ten States, with their ten millions of whites, will permit their future destiny to be controlled and dictated to them by those nine States and their three millions of whites. The impudence of the assumption is on a par with the iniquity of the scheme. " Land-locked though we are, our prosperity, like that of every other portion of the Union, depends upon our access to foreign markets. Let us shape this proposed Southern Con- federacy, and then see what it promises us by way of outlet and protection to our commerce on the ocean. To avoid a mere geographical line of separation, and for other obvious reasons, Maryland and Delaware would be compelled to go with the North. The Carolina Senator does not seem to ex- pect, with any confidence, that the free States of our valley will join his Southern Confederacy. We know certainly that they would not. To say nothing of their prejudices, their commercial interests preponderate decidedly the other way. The Potomac and the Chesapeake would be the northeastern, whilst the Ohio, Iowa, and Kansas, would be the northwest- ern boundary of the Southern Confederacy. The wliole At- lantic and Gulf coast, from the Chesapeake to Mexico, has 18 138 SOUTH CAROLINA, D I S U N I N, E T C. Norfolk for its only commercial harbor that can float a frigate. The States bordering that long line of coast have compara- tively very little shipping, and no means of creating either a commercial or naval marine. The most paltry naval power, Spain, Portugal, or even Denmark, could blockade all our ports, and prevent our access to the ocean. The little ocean commerce of our own that we should have would be the prey of pirates. We should have to buy a transit for our commerce from the Northern Confederacy, or, as has been recently sug- gested by a South Carolina paper, ignominiously place our- selves under the protection of some foreign power, and hire its aid to relieve us from the blockade. "What a nation this would be ! What a proud, prosperous Confederacy the scheme pro- mises us ! " The scheme is that Kentucky and Missouri shall give up their enviable central position in the very heart of a great, prosperous nation, and become the mere frontier appendages of an impotent Confederacy, and prevent, if we can, the North- ern hordes from invading its Southern climes. Suppose the separation to have taken place, and the inevitable war with the Northern Confederacy to have ensued, what aid would Ken- tucky and Missouri receive from South Carolina, Georgia, and Alabama, in protecting our long line of indefensible frontier ? An old Kentuckian answered the question by saying, they would offer us any number of gentlemen with epaulets, but not a single man with knapsack and musket. "Why are Kentucky and Missouri to adopt such a position as that, in lieu of their present one of absolute security against foreign invasion, with free access to the ocean at the North and the South, and a powerful nation to protect their access to foreign markets ? What is the compensating benefit ? There is none, in fact, nor do the disunionists even pretend that there is. All that we are to achieve is to get rid of associating, under the same Government, with the Northern people, who do not admire negro slavery, and have the ill manners or the impu- dence to tell us so. This is the whole grievance from which we are sufl:ering, and which would be remedied by a separa- tion. Wrong to us, or aggression upon our rights as slave- SOUTH CAROLINA, DISUNION, ETC. 139 holders by fhe Federal Governmeut, there has been none, ab- solutely none. "Aye, there are those among us, the tools of party, who have had the impudence to upbraid us with imputed want of proper sectional sympathy, that we will not blindfolded aid these bad men in hastening our perdition. Let it be known by these revilers, and all others, from this time forth, that the people of Kentucky, Tennessee, and Missouri, owe no fealty to any section which is not in strict subordination to the higher, nobler, worthier fealty which they owe to their country, their whole country — that is, to the Union. But if there is any sec- tion, above all others, to which they are bound in close sym- pathy by the ties of affection and permanent interest, it is their own section — that of which they are the heart and centre, the great valley of the MississijJ'pi. When that section calls for dis- union, Kentucky, Tennessee, and Missouri, will respectfully give ear to the reasons for such a national calamity — for cala- mity it certainly will be, come when and how it may. Till then, till that sad day comes, Kentuckians, Tennesseeans, and Mis- sourians, will listen to no counsels, make no combinations touching the Union, except from and with their brethren of the valley, — and that, too, only for its presentation and its security. " What complaint have we of this valley to make of our country or our position ? When did such rapid growth in wealth and numbers, — such peace, plenty, happiness, and pros- perity, individual and collective, ever attend the career of any other people? All history affords no parallel. Of all the reg- ular pursuits of industry among us, which have most certainly and most rapidly yielded large fortunes, cotton-growing stands pre-eminent. Yet, strange to say, it is among the cotton- growers of three of the States of our valley that alone is to be found, anywhere throughout the valley, the least taint of dis- loyalty to the Union. They amongst us who have been most benefited by the Union, they who have most prospered under it, they who are most dependent upon its great, undivided strength for the safe, continuous export of their great staple, they are its only revilers. Nineteen-twentieths, aye, ninety- nine hundredths of their Northern brethren of this great val- 140 SOUTH CAROLINA, DISUNION, ETC. ley cry shame upon them, not merely for disloyalty to our section, but for tlie far worse disloyalty to our common mo- ther, to our great, prosperous, glorious, all-lovable country. " Can it be that any portion of these men are blinded with the foolish belief that the delta of the Mississippi, that great key to the commerce of our valley, belongs to the people of Mississippi and Louisiana, and that they can so use it as to coerce our submission to their suicidal projects? Surely they cannot be sane, if any there be who so think. They are the occupants, not the proprietors. The proprietorship is with the whole eleven millions of whites who occupy the great valley. To assert a separate, exclusive proprietorship in themselves would be as wise as to attempt to stop the flow of the great Father of Rivers. Any puny effort, with such an obj ect, would not be more futile than an attempt by them to resist that !N'orthern human torrent which will certainly pour upon them whenever it becomes necessary to prove the true ownership and masterdom of the delta. "All sectional conventions are more or less impolitic, what- ever maybe their object. They tend to engender sectionalism, the great bane of our country. The people of Kentucky, Ten- nessee, and Missouri, have sedulously abstained from them with the most laudable pertinacity. But when so many secret and indirect, overt and direct efforts are constantly being made to foment jealousies, ill-will, and disaffection among the people of our valley — in fact, to separate us upon the slave-line, which runs straight through the centre of the valley — shall nothing be done to counteract these machinations, nothing to evoke an expression of popular sentiment in their condemnation ? "Whilst such efforts are making to pull us to pieces, whilst to that end unscrupulous use is made of that vile but powerful lever, party feeling, and of that still viler and more powerful agent, sectional feeling, shall nothing be done to revive and keep alive and pure that old-fashioned national feeling and patriotism that have made us what we are ? Whilst insidious enemies are doing all they can to pull us asunder, shall we do nothing towards hugging closer and more firmly together? This thing has been too long neglected; it has been too long left to political parties to play upon our passions and preju- SOUTH CAROLINA, DISUNION, ETC. 141 dices for their selfish party ends. The occasion is worthy of a great stir and political revival among the whole people of the valley. Either through legislative resolves, or the action of primary assemhlies, something should be done to manifest the fijxed, almost unanimous resolve of the people of this great valley to continue together and remain forever one and indi- visible. Let that mighty word be once spoken ; let all the people of the valley, with comparative unanimity, confirm the fiat of nature, and pronounce our valley one and indivisible, and you strengthen, if you do not virtually re-establish, the foundation of our Government. Whilst the valley hangs to- gether, our commerce will forever bind to us, in willing bonds, all the people between the Hudson and the Potomac ; and our commerce, as one power, will equally bind to us, in willing or unwilling bonds, the States of the lower Mississippi. The narrow strip lying south of the Potomac and east of the valley, would be too insignificant, as to population and national re- sources, ever to desire to become a separate Confederacy, even if a rational motive could be conjectured for desiring separa- tion upon such a geographical basis as that. If our valley re- mains firmly united, no human ingenuity can devise a line of probable separation. It may even be affirmed that, so long as our valley continues united, the Union will he indestructible." It is time that the suo-o-estions of this letter should be seri- ously considered by the people of Kentucky, Tennessee, and Missouri, and that they were doing whatever may be necessary to prevent our great valley from being divided. An eminent French traveller of great ability, and of unrivaled reputation as judicious commentator upon our political institutions, has .said that our valley is " the most magnificent home that God has anywhere provided for man." The enlightened Senator Ham- mond, of South Carolina, in the speech before alluded to, said : " The great valley of the Mississippi, now the real and soon to be the acknowledged seat of the empire of the world." " There is the great Mississippi, a bond of union made by nature herself. She will maintain it forever." Let us follow the guid- ance of nature in framing a new Confederacy, and trust to her persuasive, flattering promise that she will maintain its Union forever. If we can preserve our magnificent home in its en- 142 SOUTH CAROLINA, DISUNION, ETC tirety at the present juncture, we may well liope that the strengthening influence of natural causes will preserve it un- broken forever. To this end the Legislatures of our three Border States should immediately recommend such a Confederacy, in case the eight cotton States shall actually resolve on secession, as a better alternative for them than either remaining in the Union or joining a Confederacy of the slave States. In that contin- gency, and with a view to a Valley Confederacy, recommend all the States of the valley to meet in convention and adopt a Constitution for the new Union. If started at once, this can be accomplished by the time that the other Border Slave States will be ready for final action. As to the success of such a plan there can be no reasonable doubt. The States north of the Ohio have the same repug- nance to disunion on the slave line that we have. In the necessary avoidance of such a disaster, they will cheerfully give all reasonable guarantees in the new Constitution on the slavery question. They will be apt to concede everything Kentucky, Tennessee, and Missouri will ask as reasonable and necessary to the harmony of the new Confederacy. The con- vention would be composed of an equal number of slave and free States, fourteen in all ; or if Michigan and Texas be left out as not properly belonging to the valley, then there would be twelve States. Or, what would be better, take Kansas into the convention, though not yet a State, thereby giving the free States the preponderance in number, which they must ulti- mately possess, and thereby affording better earnest that the guarantees will be faithfully adhered to. This plan obviates two main difficulties in obtaining I^orth- ern concession toward conciliation. The political power of the North, both in Congress and the Legislatures, is in the hands of the Republican party. That party was created for the purpose of overthrowing the Democratic party ; and party leaders will never concede, voluntarily, what tends to the de- feat of their own party, and the re-elevation of their hated and defeated adversaries. The other, and the main difficulty is, that concession made now would look as if the ISTorth was succumbing to Southern bravado and threats. This sort of SOUTH CAROLINA, DISUNION, ETC. 143 submission it has definitely made up its mind against, what- ever may be the penalty. It is, therefore, useless to look to Congressional compromises for getting us out of our danger. Without the most ample cooling time, which the cotton States have not the slightest intention of yielding, the present temper of feeling at the North will cause the rejection of any com- promise. In forming a Valley Union, on the basis of a proper compromise, neither of these difficulties would occur. Its formation would not necessarily involve the resuscitation of the Democratic party in the new Union ; and the needful con- cessions would not be made under the threats, but yielded to the friendly solicitation of the slave States of the valley. It is true that much the larger amount of the trade of the Northwest tends to the East, and not to the South, and if weighed in merely commercial scales, the question of connec- tion, as between the two, would preponderate in favor of the East. But that is not so. The question of peace or warfare in the valley, are involved in the decision. It has heretofore been the almost undivided opinion of our statesmen and con- siderate men of every grade, whose opinions are at all worth quoting, that disunion on the slave line carries with it, as a necessary incident, immediate, protracted warfare, all through the valley. On the contrary, division of the Northwest from the East involves no such horrible evil as a necessary conse- quence. The commercial instincts and good sense can well be relied on to preserve the most amicable relations with the valley. The sagacity of our neighbors across the Ohio will show them that the commercial interests of the East can be safely relied on for much more than that. The Valley Con- federacy once formed, there would be a competition of alacrity of all between the Hudson and the Potomac, in seeking ad- mission into our new Union. Western Virginia would be certain to join us, and the fear of severance on the Blue Ridge would compel all Virginia to do so. Should Louisiana and Mississippi obstinately refuse to take part in the proposed convention, though much to be regretted, yet their refusal would be no serious obstruction to a new Union embracing the entire valley. The Confederacy once formed, under the authority of the ten or eleven millions of 144 SOUTH CAROLINA, DISUNION, ETC. whites inhabiting the upper part of the valley, the six hundred thousand whites of Louisiana and Mississippi would never be insane enough to offer resistance ; but if they did, it would be quite easy to make them know to whom the valley and its great river belong. In the choice between the attitudes of associated States and subjugated Provinces they would never hesitate. After the iN'orth and East have joined us, the Atlantic Cot- ton States would not long delay to do the same. Then the necessary compromise amendments of the Constitution can be obtained, without either section seemingly yielding to the other, without even supposed loss of honor or pride to either. Thus, and thus only, can the good ship receive a needful, durable repair, and without the loss of a single plank, again move forward majestically on her hopeful voyage to a glori- ously immortal destiny. But should this brilliant result not be entirely attained, still our three Border Slave States will accomplish a new Confederacy, without bloodshed, far better for all their vital, permanent interests than any other that can be carved out of the dissevered Union. This is the last hope for Kentucky to avoid that utter ruin which her statesmen have uniformly prognosticated as the inevitable result of disunion upon the slave line ; a ruin that would equally fall upon Missouri, and in a great, though lesser degree, upon Tennessee also. DISUNION AND THE POLICY OF KENTUCKY. 145 CHAPTER XII. Apkil 10, 1861, DISUNION AND THE POLICY OF KENTUCKY. Brevity requires the proposed exposition of views on this great topic to be confined mainly to the statement of indis- putable facts and principles without their discussion. THE POSITION AND POLICY OF KENTUCKY. Until recently there was no difference of opinion among her sons, that the preservation of the Union was the great para- mount political interest of Kentucky. None of her sons were ever more deeply committed or pledged to that opinion than our present Governor, and the leaders of his party who aided him in our last Gubernatorial canvass. They fully corroborated the inculcations of all our other political teachers, that disunion on the slave line is irretrievable ruin to Kentucky. ITo man has ever been ingenious enough to point out a single benefit that Kentucky can derive from disunion. N'o man can honestly deny the abounding benefits that Ken- tucky has received, and must continue to receive, from the Union. No man can point out a single injury or wi'ong that Ken- tucky has ever received from the National Government. No man can honestly deny that the Union we now have is the very best Confederacy that can be devised for the vital per- manent interests of Kentucky. No man can honestly deny that the great body of the people of Kentucky, four-fifths of them at least, are loyally devoted to the Union, and that its destruction would call from them a prolonged wail of distress such as proceeds only from the vio- lation of the most cherished feelings of the human heart. The teaching of all our statesmen has heretofore been, that 19 146 DISUNION AND THE POLICY OF KENTUCKY. a severance of the Union will be inevitably accompanied, or soon followed, by a bitter continued warfare between the severed parts. As incident to the warfare, they taught us to expect the sacking and burning of all our river towns, and the interior of Kentucky being rendered the battle-field of contending armies. Mr. Clay said : " War and the dissolution of the Union are identical and inseparable. If we were to separate by agree- ment, war would soon break out between its several portions." This war would be waged with the chance of success for the South that there is in a fight of eight men against eighteen ; or rather, of eight men against forty, if we properly consider the military advantages of the I^orth in its greater condensa- tion of population, its greater railroad facilities, its larger purse, and its exclusive naval power. Every intelligent man knows, that after disunion on the slave line the loss of our fugitive slaves would be increased from ten to twenty-fold ; that this would cause such insubordinate rest- lessness among the slaves, with such disquiet among their own- ers, that most of them would be carried from Kentucky. Their forced sale in our overstocked market, with such sudden depre- ciation of their labor, before a substitute could be supplied, would cause immense injury to their owners and the great agricultural interest of the State. Considerate men look to civil war among ourselves in our own State, as the possible result of an efibrt to drag Kentucky out of the Union for existing causes. If attempted by illegal means, intimidation and precipitation, they deem that result inevitable. All this being so, there seems scarce room for difierence of opinion among her sons as to the true policy of Kentucky in this crisis of her fate. It cannot be better expressed than in the language of her patriot Crittenden : " Let Kentucky stand by the Union which has conferred upon her so much honor, so much glory, so much liberty, so much prosperity, so much happiness." .... "Take care of the Union, compromise for it ; do anything for it ; take care of it, and it will take care of you. Yes, sir, let us take care of the Union and it will take care of us." Such indeed seems to be her plain, and should be her un- DISUNION AND THE POLICY OF KENTUCKY. 147 doubting policy. Preserve the Union and it will 2^r€se7've Ken- tucTcy. But for those twin offspring of the great arch-enemy, party ties and party spirit, such wouki be the ahnost unani- mous voice of Kentuckians. What a melancholy illustration is now being given in this nation of the verity of my denun- ciation of party spirit written twenty years ago : " It is the evil genius of Republics. It is that evil genius which has met, and which sooner or later will meet, the last patriot of every free country at its fatal Phillippi." What but that fell-spirit has caused such precipitate success to secession, wreaking party vengeance through the ruin of our country ? What, but that spirit, its ties and its supposed party interests, prevent Ken- tuckians from rallying together, clinging together, counselling together, like a band of loving brothers, till they have rescued their good mother from the tremendous peril impending over her ? Knowing as we all do, that there is no cause for haste, — that Kentucky may wait a year or five years before making her final decision, and she will still be welcomed with open arms wherever she may determine to go, — let us use this abundant leisure for the cooling and expurgating of party feeling among us. Till that is done we shall not be fitted for sitting in judg- ment upon her final destiny. Preserve the Union, being the policy of Kentucky, it involves the inquiry as to the chance and the mode of its restoration from the effects of secession. KESTORATION. Restoration, or reconstruction, as generally termed, was the delusive promise with which, until recently, the secession sym- pathizers tried to lull the fears of the Border States. Mr. Davis, the acting President; and Mr. Stephens, the acting Vice-Presi- dent, of the so-called Southern Confederacy, in recent speeches, have expressly repudiated all idea of reconstruction. The seceding press habitually does the same. Private information as to the conversation and views of prominent citizens in the seceding States tells the same. With one accord, ofiicials, press, and citizens, all proclaim that they neither expect nor desire reconstruction. This we can the more readily believe because it is well known that the very men who have control of politi- 148 D I S U X 10 X AND THE POLICY OF KENTUCKY. cal power in tliose States are part of that numerous band of traitorous conspirators, who for many years past have been plotting the destruction of the Union. Furthermore, because those States have no sort of interest in either the Territorial or the fugitive slave questions which are embroiling the na- tion ; not in the first, because they have neither surplus white or slave population with which to colonize new territory, but anxiously desire an accession of both ; and not in the second, because they never lose fugitives by escape into free States. Having no interest in those questions, they constituted no part of the motive for secession, and of course their adjustment will afibrd no inducement for a return of the Union. The concilia- tion of the seceders may therefore be properly overlooked in any scheme of adjustment between the l^orth and the Border States. Their return, and the proper concessions from the Korth, must both be waited for, till the people of the two sec- tions have had cooling time and sufficient opportunity to change their political rulers. That such change of rulers will take place at the North, we have every reason to hope and believe. Such is the informa- tion and belief of a majority of our delegates to the Peace Conference, and of our Union members of Congress. The action of the Republicans during the last session, when prop- erly considered, encourages that belief. My belief is, that proper action on the part of the slave State delegates, would have promptly procured a satisfactory adjustment from the Conference, which would have been ratified by Congress, and all our national troubles in a train of settlement. This could have been done by even a majority of those delegates accept- ing the Adams proposition, as the basis of compromise on the territorial question. Upon mature reflection, it would have proved satisfactory to all the Border Slave States, and we have every reason to believe that it, or its equivalent, would still be yielded by the jSTorth. In my opinion, the Adams proposition on the territorial question, was as beneficial to the South as the Crittenden prop- osition on that point, and preferable, because it settled the question at once, without waiting for an amendment of the Constitution. In this opinion most of my intelligent acquaint- DISUNION AND THE POLICY OF KENTUCKY. 1-49 ances concur, as did also many of our eminent citizens from different parts of tlie State, met with at the January conven- tions in tliis place and at Frankfort, during tlie January ses- sion of the Legislature. It was said at Fraidvfort tliat some leading Democrats had expressed the same opinion. As there is no possible chance of ever introducing slavery north of ISTew Mexico, the destiny of that Territory involves the whole practical subject of dispute between the two sections. Most of its soil being sterile, and there being no easy access to market, it is very improbable that, within any short time, the Territory can possess any considerable number of African slaves. But fifty years hence, when the South will have six- teen millions of slaves, and their value greatly reduced, some thousands may be carried there. As to the matter of contro- versy between the Korth and South, the Territory is intrinsi- cally of very little importance to either section, though its ulti- mate destination is probably that of a slave State. Should the Adams proposition not be satisfactory to the Border States, there can be little doubt that the proposition of the Peace Conference would be so, and that it would be yielded by the North. Though it met determined opposition from the delegates of most of the Northern States, yet those delegates were ultra party men, who do not represent the pre- sent popular sentiment of the North. The Republican patty would not survive the odium of having so materially aided the fire-eater disunionists in the infiiction of our national calamity, as by the refusal of such a proposition. It has enough of that sort of odium to bear from the well-founded suspicion that many of its prominent leaders are themselves disunionists. The ultimate fate of all disunionists, North and South, together with their aiders and abettors, is political death, without resur- rection. That superlative folly, the repeal of the Missouri Compromise, and in connection with the alleged atrocities in Kansas, the attempt to force the Lecompton "swindle" upon Kansas, and the corruptions of the Government under Demo- cratic rule, are the causes of the Republican success at the late election. The admission of Kansas as a free State has avenged her alleged wrongs, as also the alleged breach of sectional and party faith in the repeal of the Compromise ; and the defeat of 150 DISUNION AND THE POLICY OF KENTUCKY. tlie Democratic party has adequately punished it for the cor- ruptions of its administration. The Kepublican party must hereafter stand exckisively on its own narrow basis, that single sectional idea which is sustained by neither justice nor policy, a mere abstraction of not the least practical importance to either i!^orth or South. The pretence of following in the footsteps of the fathers of the Hepublic is h^'pocritically untrue. Their action, based on both policy and justice, was to allow and protect, or to disal- low and prohibit slavery, according to climate. Whereas, the Republican is to prohibit it in all territories, without regard to climate or the wishes of the people — a plan which only serves to aid the disunionists in convincing the South of malignant hostility in the Korth. Furthermore, whatever of negro phi- lanthropy there may be in the composition of the Republican party, it is outraged by this policy of restricting the spread of slavery, as nothing is better known than that condensation en- hances, whilst expansion alleviates the evil to the slaves them- selves. It is contrary to all rational presumption that the intelligent, practical people of the l^orth will permit the ruin of the peace and commercial aiFairs of this great nation, for the sake of sustaining a political party in the senseless pursuit of so unjust, so impolitic an abstraction. They are not a people to indulge politicians, at such an expense, in keeping up a sys- tem of irritation for the mere purpose of expressing the ma- lignity of those politicians against the South, or for forwarding their sinister views against the Union. It is equally incredible that sober people, I^orth or South, will permit the Union to be broken up on the trivial question whether, fifty years hence, a few thousand out of sixteen millions of slaves shall be lo- cated in sterile, unimportant I^ew Mexico. The seceding States havino; no interest in either the terri- torial or fugitive slave question, and they being a mere hollow pretence for a causeless treason, whatever satisfies the Border States ought to satisfy them. A majority of the slave States — including all those interested in those subjects — avast ma- jority of the people of the slave States having decided that there is no existing cause for secession, it would be the duty of the seceding States at once to return, if the vindication of DISUNION AND THE POLICY OF KENTUCKY. 151 Southern riglits were the real motive for their secession. But such not being the motive, nor any part of the real motive of the leaders, those States will never return until their people can wrest the power from the hands of those pernicious traitors. Till then we must have patience ; but in the meantime, instead of wasting our sympathies upon those who have no sympathy for us, but are seeking our ruin, we must by a rational, rea- sonable adjustment, seek to consolidate the Union feeling in the Border Slave States, without regard to the acceptability of such adjustment to the seceding States. That once done, we can advisedly determine what is due to ourselves in any final adjustment. If Virginia and iN^orth Carolina can, without too much detriment to themselves, permit the Atlantic States and Alabama to secede, why let them go ; we of the West shall not object. "With most of us the final exit of South Carolina would be deemed a happy riddance. For a parity of reason, Delaware, Maryland, Virginia, and North Carolina will permit Kentucky, Tennessee, ISIissouri, and Arkansas to contest the same question as to Louisiana and Mississippi. As to that hard bargain, the ungrateful, perfidious Texas, nothing need be said. But as to Louisiana and Mississippi, much may well be said, as perchance much may have to be done. Thus far the secessionists have had everything their own way. With the exception of Major Anderson, everything and everybody has seemed to quail before them. Whether it was the enormity of the crime or the enormity of the peril, the Government and the nation have seemed alike appalled. Every solicitude seems to have been directed to keeping the career of the seceder unobstructed, and to prevent their being irritated. A natural and proper aversion to civil war, carried somewhat too far, has caused ever}i:hing to be done, or left undone, in avoidance of a collision. !N'ot appreciating or caring for the motive of this leniency, they have availed them- selves of it with the most unscrupulous audacity. This thing has gone too far. It ought to stop. With arms in their hands, they defiantly renounce us as their countrymen. For reasons of their own, they have j)ermancntly left us to seek a sepa- rate destiny. Reconstruction is what they never meant, and frankly tell us they will never permit. Away then with that 152 DISUNION AND THE POLICY OF KENTUCKY. mawkish, unmanly sensibility wliich has caused the wasting upon them of so much misapplied sympathy. They are not mere erring brothers, whom time may soothe and restore to their senses. They are bold, inexorable men who are seeking our ruin, though they may be accomplishing their own at the same time. They are those worst enemies that any country can possibly have, resolute — armed traitors. As such we should view them, and propose to deal with them. Taking it for granted that Kentucky, Tennessee, and Mis- souri do not mean to suffer themselves to be dragged out of the Union by the machinations of a band of infamous conspi- rators, the question comes, will they pei-mit Louisiana and Mississippi to go out of the Union ? "Will they permit those States to assume the control of the lower Mississippi, to block our highway to the ocean ? ^ There are about eleven millions of whites in the great val- ley, all interested in the free navigation of the river. Of these, Louisiana and Mississippi contain only some seven hundred thousand. "Will the ten millions permit the seven hundred thousand to give the law to them on this gi'eat subject ? Our statesmen have always taught us that they will not. Reason tells us the same. Mr. Clay, speaking on the subject in 1850, said : " My life upon it, Sir, that vast population which has al- ready concentrated, and will continue to concentrate, upon the head-waters and the tributaries of the Mississippi, will never consent that the mouth of that river shall be held subject to the power of any foreign State whatever." Suppose Louisiana to fall into the possession of England or France, would not the people of the West compel the National Government to prosecute a ten year's war for its reconquest ; or without, and in despite the Government, would they not reconquer it themselves ? This Southern Confederacy, having signalized its advent by robbing and stealing, why should it be trusted with the mouth of the river sooner than any other foreign power? A Government, headed by a repudiator, i which, besides appropriating robbed property and stolen mo- ney, is guilty of the infamy of what, so far as regards the creditors, is equivalent to a confiscation of private debts, is DISUNION AND THE POLICY OF KENTUCKY. 153 capable of selling Louisiana to France as the price of protection. The Confederacy is too feeble to prevent Louisiana from being forcibly seized by either France or England. As a commercial and military position, Louisiana has been always esteemed an indispensable national possession, inestimably valuable to the people of the great valley. In twenty years, those people will number near thirty millions, and their trade will be quadrupled. How preposterous the idea that they wdll ever permit the navigation of the river to be controlled by any Government but that under which they themselves live ? Hence Mr, Clay was perfectly correct when he said, that if the Union is ever broken up into different Confederacies, one of those Confederacies is bound to be, " The Mississij^pi Valley Confederacy." The seven millions of people in the free States of the valley are abundantly able, with their own unaided strength, to vindicate, with the sword, their right to the free navigation of the river. "Would Kentucky, Tennessee, or Missouri attempt to hinder them? On the contrary, our sympathies would all be with them, and we should be much more apt to aid them in so just an enterprise. It would be the excess of absurd folly for us to do anything, or countenance the doing of anything, which will allow the permanent secession of Louisiana. Having her now in lawful possession, and having, upon every principle of justice and national necessity, the indisputable right to hold on to our possession, it would be the extreme of stupidity to yield it up whilst knowing that we must regain it by military conquest, which every dictate of self-interest would compel us to do. The obvious policy of Kentucky, Tennessee, and Missouri toward Louisiana, is so to act, and advise the action of the Government, that she will be induced at an earl}- day to aban- don her attempt at permanent secession. To that end, no facilities should be afforded for her prospering under secession. Her people must feel its evils in full measure before they can be relied on to take power from the hands of those traitor leaders, who have led her into secession. "With these preliminary remarks wc can proceed to consider the doctrine of 20 154 DISUNION AND THE POLICY OF KENTUCKY. COERCION. Coercion by an invading army is what no intelligent person does or ever did contemplate. The evils would be infinite, with no compensating benefits from such a course. But there is a gentler coercion which it would be expedient to apply, and which, in a short time — less than a year — would prove adequate for restoring a majority of the people of the seceding States to their senses. That mode of coercion will soon be found to be a thing of necessity. If not adopted, the seced- ing States will coerce the nation. They will soon see that their true financial policy is to have a rate of duties very much lower than ours ; that they can collect more revenue with a duty of ten, than with one of twenty per cent. "With a duty of only ten per cent, they will do the importing of many articles for the whole nation. The facilities of smuggling upon such an extended frontier, would render the cost of prevention too great to be even seriously attempted. Thus the national treasury will be nearly dried up, the national credit destroyed, no power to borrow money left, and no adequate means for carrying on the Government. To prevent this, there will probably be an early call of Con- gress to obtain power to collect the duties on board ship, as was given in the days of President Jackson. The talk about acknowledging the independence of the seceding States, or making a treaty with them, is an idle talk. The Government has no power to do either. Such power can only come from an amendment of the Constitution, which there is no prob- ability of being made. But it will be said such a course will greatly incense the seceders, and so it will ; that they will attempt to drive off our blockading frigates, and so they would if they could; that they will declare war and invade our territory ; but this last they will have neither the folly nor temerity to attempt, or if they do, the only result will be a most disgraceful and salutary defeat. A single frigate off each of their principal ports will suf- ficiently accomplish the object. The cost of overland trans- portation from minor points on the coast will prevent any DISUNION AND THE POLICY OF KENTUCKY. 155 system of extensive smuggling. That mode of smuggling ■would also deprive them of nearly all revenue from duties. They have no power to relieve themselves from such a block- ade, nor can they create it. A frigate cannot be built in less than a year, and the Government could add to the blockading force much faster than they could build or buy. They would be fast bound by, to them, an unapproachable power. There would be no spilling of blood. They would have to vent their malice in impotent rage. The inability to relieve the blockade of a single frigate would fully expose the despicable impotency of their vaunted Confederacy. It would be brought into con- tempt even with their owii people, who, with that and other causes of dissatisfaction, together with the pressure of taxation, would soon clamor for restoration to the Union. They would refuse to pay double duties, and all the foreign goods received would be by smuggling, either on the seaboard, or overland from the Xorth. This source of revenue gone, the direct taxes must become enormous and cause revolt. The Border States remaining firm, the application of this gentle coercion would aiford the best, if not the only, chance for speedy restoration. Our business men must have patience until there is time for the remedy to operate. ISTeither the Federal or State Government has any power to alleviate the injury and distress which disunion traitors have recklessly brought upon us. Should this remedy prove too tardy for the Border Slave States, whenever they shall, with unanimity, de- mand a speedier and more efiicacious one, no doubt it may be found. If the attempted obstruction of the free navigation of the Mississippi is persisted in, no doubt the people of the great valley will find one for themselves. When Governor Magoffin said, " the mouth and the sources of the ^lississijipi River cannot he separated ivithout the horrors of civil tvar,'' he did but utter what has heretofore been the un- divided opinion of intelligent Kentuckians. K then, we are necessarily bound to have civil war on the right to navigate the Mississippi, — if we are driven to a mere choice between war with the seven hundred thousand people of Louisiana and Mississippi, or with the seven millions of people north of us, — Kentucky', Tennessee, and Missouri cannot hesitate in their 156 DISUNION AND THE POLICY OF KENTUCKY. selection. Every dictate of prudence and justice will prompt us to side with the party battling against unjust usurpation, and who, whilst defending their rights, will be contending also for our own. Missouri and Kentucky will have every motive for desiring that the site of the civil war shall be removed as far as possible from their own borders. But there need be and will be no civil war, if Kentucky, Tennessee, and Missouri continue to manifest their firm adhesion to the Union, and show unanimity in their determi- nation not to submit to this insolent usurpation over their rights in the river. Whatever they shall say in denunciation of that usurpation, the people of Louisiana will at once recog- nize as the voice of the whole ten millions of whites inhabiting the upper parts of the great valley. They will also perceive that it would be sheer madness for them to attempt to main- tain their usurpation by force; that their only course is to retract and abandon all effort to control the river. This done, they will next inquire what secession is worth to them, how they can get along as a separate Government w^ithout the power to control the navigation of the river, and to tax its trade. These inquiries, aided by loss of trade, heavy taxation, and want of settled peace, will soon satisfy them of the folly of secession, and lead them to seek restoration. When Louis- iana returns, the so-called Confederacy must necessarily fall to pieces. Without her, there can be no permanent Southern Confederacy. Mississippi and Alabama would soon leave the rickety concern. This view presents the most probable, if not the only solution of our national difficulties. It is the only rational scheme of restoration, because it disregards the will of the political leaders in the seceding States, and can be accomplished in despite of all that they can do. It is also the speediest, because it requires only the joint action of Tennes- see, Missouri, and Kentucky, which can be obtained at the next meetings of their Legislatures. Public sentiment will pro- cure those meetings at an early day after the next legislative elections. Let us cease to waste our sympathies and forbearance upon that gathering of adventurers from all quarters who have not, and never had, any of the elements of national patriots ; but DISUNION AND THE POLICY OF KENTUCKY. 157 wlio liaving obtained control of Louisiana, renounce us as fel- low-citizens, and repudiate all sympathy with us or our inte- rests. The few Kentuckians settled there, if they aid seces- sion, are doing what they know tends to the ruin of their native State. Let us rather devote our sympathies to our home-stay- ing brethren. Or, if our sympathies must follow those who have left us, let it be those who, true to their Kentucky in- stincts, are still loyal to the Union, and settled in Union-loving States. Let us direct our sympathies to glorious Tennessee, who led off in such noble style by such a triumphant majority of her people against disunion, and contains four times more Kentuckians than Louisiana ; or to Missouri, who made an equally triumphant protest against disunion, and contains twenty times as many Kentuckians as Louisiana. Why should our sympathies overlook our immediate neighbors across the Ohio, who have such an identity of interest with ourselves in the preservation of the Union, and whose prosperity is so in- dissolubly connected with our own. The census of 1850 shows that there were then nearly as many Kentuckians in Ohio as in all the seceding States ; in Illinois, more than three times as many ; and in Indiana, more than four times as many. Be- sides, if the Union should be irretrievably broken up, it is to those three States that Kentucky, Tennessee, and Missouri must look for their principal aid in constructing that new con- federacy, proclaimed and defined by nature herself, which will then be so indispensable to our permanent peace and prosperity. THE MISSISSIPPI VALLEY CONFEDERACY. In a speech delivered by the writer more than twenty years ago, he said : " Our great orator has misplaced the keystone of the Federal arch. Kentucky and Tennessee together con- stitute that keystone. Nature has bound them together in the bonds of an indissoluble union. Their destinies are one, and must forever remain so. The States south and west of them can fonn no alliance without them." Since then the giant growth of their daughter, Missouri, entitles her to a full share of the compliment, and it may be now more properly said that the three together constitute the true keystone. If they re- main firmly together, looking to their own great joint interests, 158 DISUNION AND THE POLICY OF KENTUCKY. there can be no permanent severance of the Union ; certainly not upon a line running across the great valley. They have the most ample power to prevent such a measure. To Ten- nessee and Missouri, then, who have spoken so emphatically their adhesion to the Union, let us address all our surplus sym- pathy and solicitude. The interest of these three States require the closest atten- tion to this matter of the free navigation of the Mississippi. Its importance cannot be stated too highly. To any attempted encroachment upon their rights they should not give back an inch. Till very lately, it is believed, there was no difference of opinion on this subject among us. The writer was brought into consultation .upon it last fall with an eminent leader of the Democracy, in an abortive effort then made to induce party leaders to co-operate in obtaining a unanimous expression from Kentucky in favor of the Union, and against secession by Louisiana. After an interval of some two weeks between our interviews, he told the writer that he had conversed with a great many persons on the subject of the free navigation of the river ; that they were unanimous and earnest in the ex- pression of the opinion that for no consideration would Ken- tucky permit its control to be transferred or entrusted to any foreign State, or submit to any infringement of her rights. From this test of popular sentiment and intrinsic probabilities, he inferred that Kentucky would be found more perfectly unanimous on that subject than perhaps any other. It was a "fundamental condition" of the act of Congress admitting Louisiana into the Union, that she should never assume power over the navigation of the river ; yet the Con- gress of the so-called Confederacy has assumed, and is pre- tending to exercise the power by various vexatious regulations as to the navigation of the river, and by actually levying and exacting taxes or duties on our trade. They are using this usurped power for the double purpose of revenue, and as a means of coercion upon Kentucky, Tennessee, and Missouri, to compel them into secession. Their conduct is a throwing down of the gauntlet in armed defiance of the rights of the people of the upper valley, and of their power to maintain those rights. "What is the right of carrying slaves to New DISUNION AND THE POLICY OF KENTUCKY. 159 Mexico worth in comparison to those rights? "U"^c are ex- pected to aid in breaking np the Union, to our own ruin, for the mere threat to deprive us of so trivial a right in New Mexico ; whilst we are tamely to submit to such insolent usur- pation over our so much more important rights on the river, and their actual deprivation. "We cannot be too submissive to the arrogant injustice of this nest of traitor States. Could it have been believed, even six months ago, that when such a usui-pation and outrage should be pressed upon the attention of the Legislature of Kentucky-', it would fail to as- sert our rights, and protest against their violation ? Would it have then been credible that thirty-seven of the Representa- tives of the people of Kentucky could be found so pliant to the dictation of a party leader, as not to permit a vote on such an assertion of our rights after it had passed the Senate? These secession sympathizers must be playing a desperate game when their purposes require a dodge from the perform- ance of such an imperative duty. Responsibility to the public sentiment of Kentuck}'- cannot be so dodged. The dodgers and their instigator must bear the penalty. This right to the free navigation of the river is too import- ant for the people of the "West to suffer it to be tampered with. They cannot and will not submit to a destruction of that right as a means of coercion against themselves. Accjuiescence in the wrong, is a sort of concession of the rightful power to commit the wrong. 160 MARTIAL LA-W. CHAPTER XIII. MARTIAL LAW. Part of a pamphlet Jirst published in 1842, over the signature of a Kentuchlan. No. I. KoT tliat martial law ordained by Congress for the govern- ment of the army and navy, but that usurped power over pri- vate citizens, assumed by military men in derogation of civil authority. It is to this mode of martial law, and the extra- ordinar}' doctrines concerning it, recently avowed by eminent men, that I propose to invite the public attention. Those doc- trines as avowed by Mr. Adams, General Jackson, Mr. Bu- chanan, Mr. Berrien, and other Senators ; also, by a minority of the committee of the House of Representatives, and practi- cally acted on by the Rhode Island Legislature, it is my pur- pose to arraign at the great bar of public opinion, for national censure and condemnation. It must be matter of surprise to all whose regard for civil liberty is not merged in the ephemeral and comparatively un- important party strife of the day, that it should be left to an anonymous writer in a newspaper to make the effort to awaken public attention to the importance of those doctrines, and to fasten public censure upon them. If pei-petual vigilance be indeed the price of freedom, the modern appreciation of its value must be slight, when its sentinels are all asleep, none found to give the alarm when such doctrines are preached in the capitol and attempted to be enforced by a State Legisla- ture. The debate in the Senate, which elicited the avowal of some of the most obnoxious of them, called forth the expres- sion of abundant sympathy on the one side for the reputation of General Jackson, and on the other for the reputation of Judge Hall ; whilst but little interest was manifested from any quarter about a vital principle of Government involved in the MARTIAL LAW. 161 discussion, of immeasurably more importance than the repu- tations, or even the lives, of a thousand General Jacksons and Judge Halls — that is, as to the right to proclaim martial law in this country. There has been no instance of martial law in England for the last hundred and fifty years, and none in this country since the Declaration of Independence, but that given by General Jackson at J^ew Orleans. "Washington carried the country successfully through the seven years' war of the Revolution, amidst spies and traitors, without finding a necessity, or feel- ing himself authorized, to resort to such means. Baltimore, an open, unfortified city, and every way very similarly circum- stanced to Kew Orleans, was successfully defended during the last war by the spontaneous eflorts of its citizens, who volun- tarily rendered more service in the way of personal exertion, than could have been extorted by any amount of coercion. This, too, amidst daily denunciations from the Federal press against the President for corruption, in getting the country into the war, and for imbecility in carrying it on ; denunciations that never ceased until the press itself stopped — that is, when the editors and their workmen, with the alacrity of all other citizens, shouldered their muskets to meet the enemy in the field. Indeed, the whole idea of extracting, by coercion from freemen, the most eflective resistance against foreign invasion is based upon a wrong conception of the genius of a republic. All history proves that the patriotism and public spirit of a republic are more eflective in calling forth, in the hour of need, the utmost energies of a State, than all the coercive powers of the most absolute despotism. 5|: :)c * :(c :(! * * The first in order of time, as also in magnitude of error, in promulgating the new doctrine concerning martial law, was Mr. Adams. In a speech, delivered at the late session of Con- gress, he said : " When your country is actually in war, whether it be war of invasion or war of insurrection, Congress has power to carry on the war, and must earrj it on according to the laws of war; and, by the laws of war, an invaded country has all its laws 21 162 MARTIAL LAW. and municipal regulations swept by the board, and martial law takes tbe place of them. "This power in Congress has, perhaps, never been called into exercise under the present Constitution. But when the laws of war are in force, what, I ask, is one of those laws ? It is this : that when a country is invaded, and two hostile armies are met in martial array, the commanders of both armies have power to emancipate all the slaves in the invaded territory. "And here, I recur again to the example of General Jack- son. "What are you now about in Congress ? You are about passing a law to refund to General Jackson the amount of a certain fine imposed upon him by a judge under the laws of Louisiana. You are going to refund him the money with interest, and this you are going to do because the imposition of the fine was unjust. And why was it unjust? Because General Jackson was acting under the laws of war; and because the moment you place a military commander in a district that is the theatre of war, the laws of war apply to that district. " I might furnish a thousand proofs to show that the pre- tentions of gentlemen to the sanctity of their municipal insti- tutions, under a state of actual invasion and actual war, whether servile, civil, or foreign, is wholly unfounded, and that the laws of war do in all such cases take precedence. I lay this down as the law of nations. I say the military authority takes for the time the place of all municipal institutions and of slavery among the rest ; and that under that state of things, so far from its being true that the States where slavery exists have the exclusive management of the subject, not only the President of the United States, but the commander of the army, has power to order the universal emancipation of the slaves. I have given here more in detail a principle which I have asserted on this floor before now, and of which I have no more doubt than that you, sir, occupy that chair." N'ext in order of time in the preaching of this modern heresy, were opinions expressed in the Senate by various Senators, pending the question of the restitution of General Jackson's fine. My limits will not permit special notice of any but those of Mr. Buchanan and Mr. Berrien. They are selected as having participated most largely in the discussion ; as having taken M A R T I A L L AW. 163 opposite sides on the question pending; as being of opposite party politics ; as being those who, from their intelligence, we had most right to expect better things, and as those who are probably best able to vindicate their errors. Mr. Buchanan said: " In my opinion, the General was comi^letely justified in re- taining Louallier, and in sending Judge Hall out of the city, to prevent him from issuing other writs of habeas corpus. " The Senator says Judge Hall was bound to administer the law, and on an appeal to him he was bound to issue his writ of habeas corpus. Kow, here the Senator and himself were at issue ; for he denied the premises even on the Senator's own showing. If General Jackson did no more than his duty in declaring martial law, the moment the declaration Avas made, the official functions of Judge Hall ceased, with regard to his power of issuing writs of habeas corpus, which might interfere with the defence of the city. As soon as martial laio ivas in force, every citizen of New Orleans, tvhether sustaining an official charac- ter or not, ivas bound to submit to it; and during its continuance Judge Hall was no more than any other citizen, and could have no more right to violate it than any other citizen. For it was quite a plain case, that if martial law did not supersede and put in abeyance the civil power, it would be wholly inefficient in attaining the only objects for which alone it could be toler- ated or justified." He also contended that it was exclusively in the discretion of General Jackson, and not with the civil authorities, to say when martial law should cease. Mr. Berrien said : " General Jackson was perfectly excusable, under all the circumstances of the case, in declaring martial law, and that he was equally excusable in disobeying the writ of habeas corpus. Under similar circumstances, he himself would have done exactly what General Jackson did, with respect to declaring martial law and refusing to obey the wi'it of habeas corpus ; but to avoid collision with the civil power, he would have sent the prisoner out of reach of civil authority, and he certainly never would have arrested Judge Hall for what he did." Shortly after the utterance of these and similar opinions, and no doubt influenced by them, the Legislature of Rhode 164 MARTIAL LAW. Island was guilty of tlie egregious folly of passing an act attempting to authorize tlie Grovernor to proclaim martial law over that State, who also was silly enough to proclaim it, for the purpose of suppressing a contemptihle rebellion. I have not language to express the surprise, not to say hor- ror, with which I have witnessed the promulgation of these opinions. Theretofore, I had supposed that, in the estimation of all intelligent men in this country, martial law stood upon the precise same footing and none other, as lynch law, regu- lators' law, or mob law. For, in a legal or moral sense, they all have the precise same basis. They are equally the same arbitrary usurpation of power, without a particle of law or right to sustain either. ISTeither can, or at least ought, ever to receive the direct or indirect sanction of the law or any depart- ment of the Government, though considerations of policy may cause them occasionally to be overlooked. The doctrine is now, for the first time in this country, pro- mulgated by eminent men in civil stations, that martial law is some other and different as to right from the mob law ; that it is not a mere unlawful violence which it is the right and duty of every citizen to resist ; but is a law paramount to the Con- stitution itself, which, when proclaimed, every citizen and every civil functionary is bound to submit to and obey — a law which " sweeps the Constitution and all other civil law by the board," and leaves the property, liberty, and life of every citizen, at the will of a military despot. Extraordinary as this doctrine is, fit as it only is to be met and forever buried under a universal national execration, Mr. Adams warns us against meeting it with mere denunciation. He boastfully challenges its refutation by sober argument, and says he is ready to support it by a thousand instances from the laws of nations. Hard as the task may be, it shall be my endeavor so far to cool the blood, as to give him and Mr. Buchanan an answer in the way of sober argument first ; but with no promise to abstain from fitting denunciation aftei'ward. Let no man turn from my effort in this behalf, because this doctrine is sheer madness, and needs no answer. The public ravings of such men as these should never be slighted ; they should always be met and answered. 'We even now find Mr. MARTIAL LAW. 165 Adams quoting tlie conduct and opinions of General Jackson as authority on constitutional law, wlien tliey happen to suit him, though he was wont to say, they were only fit to he quoted on military subjects, or on the qualities of a race-horse. In after times, other Generals and Senators will quote these opinions of Messrs. Adams, Buchanan, Berrien, and the conduct of the Rhode Island Legislature. As to Mr. Adams's other authorit}-, the laws of nations, it is difficult to understand what bearing they can have upon a ques- tion of lawful power within this Union. They may define the rights of the conqueror and the duties of the conquered ; but that is not what Mr. Adams means. He contemplates an un- successful or undetermined invasion merely, and says that " an invaded country has all its laws and municipal institutions swept by the board, and martial law takes the place of them," with an incidental power to both our own and the foreign com- mander to emancipate the slaves. Eminent as Mr. Adams is as an authority on the law of nations, yet his opinion must surely yield to that of the whole American people as expressed in their Declaration of Independence. This very mode of an- noyance towards an enemy, by inciting a servile insurrection, is there denounced as contrary to the law of nations and the usages of civilized warfare. It is ranked in atrocity with that other infamous practice of the English Government, the ally- ing itself with the scalping-knife and tomahawk. According to the better opinion, then, any invading foreign commander, who should issue such a proclamation as the one indicated by Mr. Adams, would thereb}^ cast himself and those under his command out of the pale of the protection of the usages of civilized warfare. Much rather, therefore, would any com- mander of ours be considered as absolving hmiself from the protection of all law, by such a course, and subjecting himself to be rightfully shot by any one who chose so to rid the coun- try of so infamous an incendiary. The American people have heretofore lived under the fond delusion that they had the exclusive privilege of making con- stitutions and laws for themselves, and that the combined will of all the nations of the earth could not rightfully add to or alter those laws in the smallest particular, so tar as they operate 166 MARTIAL LAW. mthin our own territoiy. N"or do the laws of nations tliem- selves make any pretension to tlie power asserted by Mr. Adams in their behalf. There is no principle of international law better settled, probably none other about which there is less difference of opinion, than that the laws of one nation cannot operate within the territory of another ; and, by consequence, neither can the combined laws of two, three, or twenty na- tions, so operate within the territory of another nation. There is a class of politicians in this country who have long been suspected of having no great love or admiration of our republican institutions, viewing them as a useless experiment which must ultimately give away to monarchical government, and therefore as rather impatient for the advent of some bold, great man sufficiently powerful to do away with the idle trum- peiy of a constitution, and relieve us from the trouble of gov- erning ourselves. I must confess it has been heretofore sup- posed that Mr. Adams did not belong to this school of politi- cians. But it seems he goes a great way beyond them. They were merely suspected of sighing for a domestic usurper. He is for subjecting our Constitution and laws to the mercy of a foreign invader also. He not merel}'' concurs with Messrs. Buchanan, Berrien, and Jackson, in the right of a militaiy man to usurp authority over the Constitution, when he thinks it necessary, and to keep it up as long as he thinks it neces- sary, but for fear an American commander would never have the temerity or iniquity to attempt what he has in view, he claims that the power rightfully belongs to a foreign invader also, having in his eye, no doubt, an invader in particular that never scrupled about means however infamous, in the attain- ment of ends however iniquitous. If a foreio-n invader can strike dead in the hands of its owners four hundred millions' worth of property by his mere proclamation, though he be defeated and driven from our ter- ritory the next day, it is by a most precarious tenure indeed that we hold all which government was instituted to protect and guard. For Mr. Adams does by no means limit this power to a mere emancipation of slaves, but says it sweeps the whole Constitution by the board, and substitutes the invader's will in its place. He no doubt looks to that admired British Gov- MARTIAL LAW. 167 ernment for tlie invading commander wlio is by proclamation to emancipate tlie three millions of his black fellow-citizens. But he should remember that, though it be now the pleasure of that immaculate Government to preach a crusade against negro slavery, she was formerly the patron and even attempted to be the monopolizer of the slave trade ; that she even forced the slaves upon this country in despite the remonstrance of our fathers, as she is now attempting to force her opium upon the Chinese ; that she may again change her views, drop her crusade against negro slavery, and preach a new crusade, as formerly, against the Protestant religion, or any other cherished right of ^ew England. Does that also lie at the mercy of her proclamations ? Can she thus put down that religion, and put up the Catholic, or any other, in its place ? But, says Mr. Adams, this is not a mere theory ; " his doc- trine has been carried into practical execution." He cites us to the example of those eminent man-slayers and expositors of the law of nations, and of the usages of civilized warfare, Generals Morillo and Bolivar. He says they both did the thing in Columbia, though he does not explain how ; after one had emancipated all the slaves, it was still left for the other to do. iTeither has he done his argument all the justice he might, in favor of the might of military power, from the ex- ample of the best of those two eminent expositors. He forgot to tell us that Bolivar, after having emancipated the blacks, by virtue of the same martial law, enslaved the whites, and placed a crown on his own head. "We of the South even, who are so much interested in the subject of slave property, would deem this a much more striking and convincing example of the extent of military power than that of the mere emancipa- tion of slaves. How differently from his forefathers of Massachussets does Mr. Adams consider the influence of foreign laws, and the overshadowing supremacy of military power. They say in their Constitution : " The people of this Commonwealth are not controllable by any other laws than those to which theu* constitutional representative body have given their consent." He says they are controllable by the arbitrary will of a mili- tary chief, foreign or domestic ; and that even their Constitu- 168 MARTIAL LAW. tion is in subordination to the law of war and the law of na- tions. This Provincial Congress, writing to the Continental Congress, in May, 1775, on the necessity of their " taking up civil government," said : "As the sword in all free States should be subservient to the civil powers, and as it is the duty of the magistrate to support it for the people's necessary de- fence, we tremble at having an army^ although consisting of our own countrymen^ established here, without a civil power to provide for and control them." This being in time of actual war, a war of revolution too, what a silly set of old-fashioned fellows that Provincial Congress must have been to be thus sighing for a civil government to control the army, they not knowing in their simplicity that it was the undoubted prerogative, by the law of nations, for the military to control the civil power in time of war. Fighting as they were for their lives and liber- ties, in the midst of an actual war of revolution, they trembled at the idea of an army of even their own countrymen, because there was no adequate civil power to control it. So little of this fear of military sway is there in Mr. Adams, that he con- tends the military rightfully does and should overmaster and control the civil authority, in time of war, from invasion or insurrection. In case of a slave insurrection, if the United States are called upon to fulfil the constitutional guarantee against domestic violence, Mr. Adams says the President, or one of his sub- alterns, may, at his discretion, in order to put an end to the insurrection, emancipate all the slaves. That is, when the slaves are committing violence to obtain their freedom, the President, in discharge of his duty, to aid in putting down that violence, may, by proclamation, emancipate the slaves. The slaveholders call in the Government to aid in keeping the slaves in bondage, and he may perform this duty by setting them free. Mr. Adams does not at all confine this sovereign power in the President, or his subalterns, to the mere particular of emancipating the three millions of his black fellow-citizens, but allows the full force of the analogy, that necessarily ex- tends it to all other subjects of property, right, or constitu- tional guarantee. For instance, when Government interposed with its military power to suppress Shay's rebellion in Massa- MARTIAL LAW. 169 cliusetts, or the whisky insuiTection in Penns^^lvania, or the recent suffrage insurrection in Rhode Ishmcl, the officer com- manding the military power woukl have had the right to sup- press the two first, by annulling the taxes which produced them, and the last, hy granting free suffrage to everyhod}-. Unable to find anything in the Constitution to authorize the Federal Government to interfere with the question of negro slavery, he is driven to a power de Jiors the Constitution, and conjures up this undefined and undefinable power of mar- tial law. He at once sees that it will not do to treat the war power as subordinate to and flowing from the civil function- aries of the Government, for it must necessarily be only com- mensurate with the powers of those functionaries. He therefore resorts to the desperate shift of claiming it to be a power para- mount to the whole Constitution. He boldly denies to the nation the right to declare, as it has done, that the Constitu- tion shall be the supreme law of the land; and asserts that martial law is paramount to all other law, not controllable by the will of the nation, or any form of constitution. A grosser absurdity surely never entered the mind of an intelligent man, educated under a government having a written constitution. Though I cannot admit that Mr. Adams is borne out, in these novel doctrines, by the law of nations, yet I must in can- dor concede that he is fully sustained by his other authority, General Jackson. Mr. Adams's theoretical doctrine requires no enlargement of the principles and powers under which the General acted and brought into practical use, in carrying out his martial law at JS'ew Orleans. K the fitness and necessity of the occasion for declaring martial law, and keeping it up, rest in the mere discretion of one of the President's subalterns, as according to Messrs. Buchanan and Berrien it does, if he can enforce it over the greater part of an entire State, why may not the President proclaim and enforce it over all the slave- holding States ? K, hy color of it, the subaltern can, as Gen- eral Jackson did drive, at the point of the bayonet, the repre- sentatives of the people of a sovereign State from their legis- lative halls, close the courts of justice, banish hundreds of meritorious and unoflending citizens, violate every constitu- tional guarantee in behalf of the freedom of the citizen, abol- 22 170 MARTIAL LAW. isli the freedom of the press, prosecute one for his life on a charge of treason for a mere exercise of its immunities, and seek to punish with death a private citizen, by a prosecution for libel before a court-martial, why may not the President, when called upon to suppress a servile war, vest himself with dictatorial authority over all the slaveholding States, by de- claring martial law, and then, by his mere proclamation, lib- erate all the slaves ? If the power rightfully exists in a military commander to do the one, surely much rather can he do the other also. We of the South do most cheerfully concede that if he can take from us our civil liberties he can take from us also our slaves. Mr. Adams, on the contrary, is so engrossed with his animosity to negro slavery, as to forget himself, and advocate slavish principles of government. He suffers him- self to be carried so far by zeal for his black fellow-citizens, as to advocate principles that would inevitably lead to the en- slaving of his white fellow-citizens. There is an American authority in favor of Mr. Adams, which he will do well to quote when he comes to furnish us with his thousand instances from the law of nations, for it is one he seems to hold in high respect on this subject. It is the declaration of General Jackson, in his letter to Mr. Monroe, that if he had been the commander of the military district in which the Hartford Convention sat, he would have hung its leaders under the second section of the rules and articles of war. Mr. Adams can add, in corroboration of this authority, that, while the nation was making mirth out of this declara- tion, as a something only fit to be laughed at, in which the General had said a great deal more than he seriously intended, the General liimself was wont to asseverate that he was in sober earnest, and that there was a great deal more in that second section than people thought. It will not be amiss, as his opin- ions are becoming such high authority, to recite that section, so that people may know all that is in it : "In time of war, all persons not citizens of, or owing allegiance to, the United States, who shall be found lurking as spies in and about the fortifications and encampments of the armies of the United States, or any of them, shall sufier death according to the laws and usages of nations, by sentence of general court-martial." M A II T I A L L A AV. 171 This was no new idea witli the General, for it had full posses- sion of him when he was trying to have Mr. Louallier hung as a spy, for publicly calling in question the General's power to estab- lish martial law. As the General's construction of this famous section is not allowable by any of the canons of construction known to common sense or ordinary law, it of course must rest upon those that are recognized by Mr. Adams's laws of war, and he is, therefore, entitled to all the corroboration that the weight of the General's opinion can add to his own. What an admirable substitute is this newly-discovered power, for all those powers our fathers were silly enough to attempt to deny to the Federal Government, by express constitutional prohibition ; such, for instance, as the power to pass bills of attainder and ez post facto laws ; to abridge the freedom of speech or the press ; to hold men answerable for cajiital or in- famous crimes, without an indictment ; to deprive men of life, liberty, or property, without due process of law ; and in crim- inal prosecutions to deprive them of the benefit of an impartial jury of the vicinage. It is an old and familiar tyrant's trick, to pinch the subject till he squeak, and then punish him for squalling. No government ever lacked the wit to create a rebellion when one was wanted. "When once produced, where the need for bills of attainder or ex post facto laws, when the laws of war at once cast the lives and fortunes of the whole community into the hollow of the President's hand, or into that of any military minion he may send forth to deal out his own or party vengeance ? K nullification had not stopped short of actual rebellion, with Messrs. Adams and Buchanan to ex- pound the law, and General Jackson to execute it, how sum- mary might have been the expurgation process to the hot spirits of that day ! With or without the intervention of a drum-head court-martial, how eflfectual and satisfactory might have been the punishment of all those suspected of nullifica- tion, whether found in arms or not ! Forty years ago the political fortunes of the house of Brain- tree were wrecked in an effort to introduce necessity as a sub- stantive power of Congress, within the Constitution. May equal success attend the present eflTort of a younger scion of that house, to plant necessity in this country as a controlling 172 MARTIAL LAW. power in the Presideut and his military subalterns above the Constitution. Oh, necessity, State necessity, that instrument of evil, would that its parent had, or that some kindlier in- fluence could, forever " damn it black," so that all the world might know it, for what it is, when used as a pretext for the usurpation or abuse of power. Know you not what it is, this thing called State necessity ? To go no farther back in his- tory, you may learn what it is in the proscriptions of the French revolution, in the conscriptions of the French empire and its wars for universal conquest ; in England's attack on Copenha- gen, in her piratical seizure of the Spanish galleons, and in her impressment of thousands of native Americans into her floating hells ; in our own alien and sedition laws, in all other usurpations and abuses of power by political parties, and finally you may learn what it is in the trial for his life of a respecta- ble private citizen, before a court-martial, on the charges of being a spy, and the publishing a libel. No.n. "What is it, this martial law ? It is simply the mere will and pleasure of the military man by whom it is proclaimed and enforced. The other rightful martial law is well defined by the Legislature in the rules and articles of war. This is de- fined nowhere, nor sanctioned anywhere, or in any way ; but, being the mere creature of him who proclaims it, is, of course, just what he chooses to make it. It is the mere unbridled will of a military despot. Hale and Blackstone tell us, "that it is built on no settled principles, but is entirely arbitrary in its decisions, and is, in truth, no law, but something indulged rather than allowed as law, a temporary excrescence bred out of the distemper of the State." Notwithstanding a clause in magna cJiarta, prohibiting the use of this law in time of peace, the kings of England habitu- ally employed it for various purposes of tyranny, until it was finally abolished, in time of peace, by the act termed the peti- tion of right, in the early part of the reign of Charles the First. But Hale and Blackstone seem to think it might still be employed in time of war. When, however, this intimation MARTIAL LAW. 173 of theirs was cited, in 1792, before Lord Longliborough, he said that " martial law, such as described by Hale and Black- stone, does not exist in England at all, but, for a century, has been totally exploded, as contrary to the Constitution." "It is totally inaccurate to state martial law as having any place whatever within the realm of Britain." Shall it be with a blush of shame, or a feeling of indignation, that we find an English court and English lord better understanding and bet- ter appreciating the principles of civil liberty, than do some of our American Senators ? Some of the uses to which martial law was formerly applied in England, as detailed by the historian Hume, will serve not merely as authority to General Jackson for his mode of apply- ing it here, but may strengthen predilections for the lodgment of arbitrary power in single hands from the trustworthiness they evidence of all such depositories. So late as the reign of Philip and Mary, a proclamation declared that whoever was possessed of heretical books (that is, Protestant books,) and did not presently burn them, without reading them, or show- ing them to others, should be deemed a rebel, and executed immediately by martial law. This authority scarcely bears Gen- eral Jackson out ; for he never issued any proclamation, noti- fying his subjects at N'ew Orleans, that whoever questioned his authority should be deemed a sp}-, and immediately executed. But the uses to which it was applied in the reign of Elizabeth do fully bear him out ; " for, in cases of insurrection, it was not only exercised on military men, but on the people in gen- eral, and was extended to those who brought papal bulls, etc., from Rome : any person might be punished as a rebel or as an aider and abettor of rebellion, whom the provost marshal or lieutenant of a county pleased to suspect." This is a full au- thority for hanging, not merely Mr. Louallier, but the leaders in the Hartford Convention also. In the same reign there issued a commission to the provost marshal " to take all idle vagabonds, and riotous persons, and speedily execute them according to the justice of martial law." The historian also tells us how Sir Francis Bacon succeeded, by his wit, in rescuing from the fangs of that bloody vixen, Elizabeth, a literary man whom she wanted to proceed against capitally by martial law, 17-4 MARTIAL LAW. because he had dedicated a book to the Earl of Essex, AAhilst the Earl labored under her displeasure. The mode of martial law, enforced at ^New Orleans by Gen- eral Jackson, and which is vindicated by Mr. Adams and Mr. Buchanan as rightful, and by Mr. Berrien as excusable, requires the exercise of two of the highest attributes of sovereign power, far above the power of ordinary legislation : the power to revoke or suspend existing constitutional law, and the power to substitute other law in its stead. Can such power be rightfully exercised in this country ? In other words, can there rightfully be in this countiy a usurpa- tion, and consequent tyranny, for any purpose or under any pretext ? Every usurpation is also a tyranny. The Greeks, who first taught the world a proper detestation of usurpation and tyranny, had but one word in their language to signify both. So, also, tyi*ant and usurper must forever remain as synonymous in the estimation, if not in the language, of every republican. An utter detestation of both is the great moral basis of every government, aspiring to the dignity and charac- ter of a government of law. Our institutions are framed upon the broad principle, that no rightful authority can exist in any department or function- ary of government, but by the assent of the governed. Other governments derive their powers from usage and implied assent. Not so with us. Ours are all derived from written constitutions and express assent. The necessary inference being, that any power not granted does not belong to, but is withheld from. Government. The master workmen, who framed the Constitution of the United States, relying upon the efficacy of this inference, adopted no bill of rights, because they thought it useless, and perhaps pernicious, as a mere omission might be construed into a permission, and because it would mar the compact and perfect symmetry of their work. The nation, however, not having quite so much concern for mere symmetry, and not quite so much faith in mere rules of construction, amended the Constitution after adoption, so as to give it a bill of rights ; but, to close the door against omis- sion being construed into permission, took care expressly to declare, that all powers, not delegated, were reserved to the MARTIAL LA W. 175 States, or to the people. The intention was to grant all powers, deemed necessary for good government in any emergency, but, if inadequate, still none other was to be exercised ; for, upon a full survey of the whole subject, the nation greatly preferred all the evils that might ensue from the want of power, to in- curring the hazard of the abuse of such powers as were with- held. The great care, the great solicitude, was the preserva- tion of civil liberty, and the perpetuation of a republican form of government. To those, all other considerations were made subsidiary and subordinate. There were not wanting then, as now, croakers and false prophets, who told them that the Gov- ernment was too weak, that they were unnecessarily jealous and cautious in withholding essential powers. The answer was, it is strong enough for liberty, and that we mean to have for ourselves, and to secure for our posterity, at every hazard. The powers of a general are derived from his commission, which emanates from, and which he holds at, the will of his commander-in-chief, the President. All that he rightfully does, proceeds in fact, or it is supposed to proceed, from the order of that chief. If the subordinate can declare martial law, so much rather can the chief. If the one can rightfully close the halls of an independent State Legislature, so can the other the halls of Congress. If the one can refuse to obey the writ of habeas corpus of a district court, so can the other refuse to obey the mandate of the Supreme Court. If the one can substitute his will for law over the greater part of an en- tire State, so can the other over a whole Union. If the Presi- dent has any such power, it is to be found in the Constitution. The powers confided to him are all expressly stated and enu- merated. The auxiliary or necessarily implied powers, those necessary to carry into efifect the express powers, are all con- fi.ded to the discretion of Congress alone. He has no power, express or implied, to suspend law or make law. But why debate the existence of such power in any mere subordinate functionary, when it is so obvious that the unanimous vote of both houses of Congress can, in no emergency, rightfully es- tablish martial law over anj- State in this Union ? It is a gross mistake, as will be more precisely shown hereafter, to suppose that a mere suspension of the writ of habeas eo7'pus necessarily 176 MARTIAL LAW. superinduces or permits tlie establishment of martial law. Congress liad as well attempt, by law, to condemn a citizen to be shot without trial, as to take the ^^eople of any one of the States from the protection of their own laws, and subject them to the arbitrary will of a military despot. The chief of the President's powers, under the Constitution, is to have the laws executed. He has no power to set aside or annul any law of Congress, much less a fundamental law of the Constitution, or to set aside the whole civil polity of a State and substitute a new code of his own. If the Constitution were now to be made anew, no man, except a monarchist, would vote to con- cede him such a discretionary power in any state of emergency whatever ; still less would it be conceded to any chance mili- tary officer, who might be placed in circumstances supposed to require the exercise of such a discretion. The power to suspend laws, and the execution of laws, was formerly one of the prerogatives of the crown in England, or at least it was habitually exercised as such, down to the revo- lution of 1688, when it was deemed so repugnant to every idea of liberty, that the nation determined it should forever cease. In the preamble to the celebrated declaration of rights, justly denominated the greater charter of English liberty, the exercise of this power is assigned as the first cause for de- throning James 11. ; and by the first article of the great cove- nant between King and people, then adopted, it is declared that no such power shall belong to the crown. Our State Constitutions, not being like that of the Union, a special delegation of a few enumerated j)owers, but general delegations, with special reservations and exceptions, neces- sarily required ver}^ guarded bills of rights. But this power is so obviously a legislative one, that any person might well have thought that there was no necessity for so declaring ; yet such was the jealousy and odium against the exercise of the power by any other than the legislative department, that we find it most sedulously guarded against in those Constitutions. So, also, as to that other still greater and more obnoxious power of substituting martial in the place of civil law, we not onlyfijid the Declaration of Independence setting forth as one of the causes for renouncing allegiance to the King of Eng- M A R T I A L L A W. ill land, " that lie lias affected to render tlie military independent of and superior to the civil power," but this very mode of sub- stituting another in the place of established law, is expressly and unqualifiedly prohibited by the State Constitutions. It is needless to cite the authority of individual names, against the allowance of martial law in any case, when we have the au- thority of our fathers,, speaking collectively and unanimously, by whole States, in its utter condemnation. It cannot be un- profitable or inappropriate in these degenerate days, whilst the first men in the nation are boldly advocating the doctrine of martial law, and nearly half the Senate shamelessly approving an outrageous instance of its exercise, to recur more minutely to what those men of the Revolution have thought and said on the subject. Listen, then, ye degenerate sons, to the warning voices and commands of your fathers, whilst I evoke the ver}'' embodiment of all their patriotic virtue and intelligence, and they speak to you by States, through their written Constitutions : 3Iassachusetts. — The military power shall always be held in exact subordination to the civil authority, and be governed by it. New Hampshire. — In all cases, and at all times, the military ought to be under strict subordination to, and governed by the civil power. Neto York. — jSTo authority shall, on any pretence whatever, be exercised over the people of this State but such as shall be derived from and granted by them. Delaware. — The military shall, in all cases, and at all times, be in strict subordination to the civil power. Pennsylvania. — The military shall, in all cases, and at all times, be in strict subordination to the civil power. Maryland. — In all cases, and at all times, the military ought to be under strict subordination to, and control of the civil power. ]Sro person, except regular soldiers, mariners, and marines in the service of the State, or militia when in actual service, ought, in any case, to be subject to, or punishable by martial Uiw. Virginia. — In all cases, the military should be under strict subordination to, and governed by, the civil power. 23 178 MARTIAL LAW. North Carolina. — The military should be kept under strict subordination to, and governed by, the civil power. South Carolina. — The military shall be subordinate to the civil power. Vermont. — The military should be kept under strict subordi- nation to, and governed by, the civil power. ]^o person can, in any case, be subject to martial law, or to any pain or penal- ties by virtue of that law, except those employed in the army, and the militia in actual service. Kentucky. — The military shall, in all cases, and at all times, be in strict subordination to the civil power. Tennessee. — In all cases, the military shall be in strict subor- dination to the civil authority. No citizen, except such as are employed in the army, or militia in actual service, shall be subject to corporal punishment under martial law. OMo. — The military shall be kept under strict subordination to the civil power. The unambiguous import of the general tenor of the Fede- ral Constitution is to the same eifect. Such is the warning voice and command of our fathers. Let us beware how we fail to heed and obey. Kot content with saying that no man or body of men, other than the regu- larly constituted Legislature, shall have power to suspend law, they furthermore especially declare, that military men shall have no such power, that the law, martial in particular, shall never be substituted for civil law. These inhibitions against military usurpation, are all absolute and perfectly unqualified. ISTo exceptions are made for time of war, or supposable cases of great State necessity, such as might grow out of rebellion or invasion. Some of them, not content with positive prohi- bition without exception, have, with superabundant caution, gone so far as to say that, at all tiines and in all cases, the mili- tary shall be in strict subordination to the civil authority, or otherwise to speak, that, at no time and in no case, shall the military assume superiority. Fully cognizant of the tyrannous uses that had been made of that immemorial tyrants' plea, necessity, they intended to extirpate it utterly from our system, by declaring that, at no time, and in no case, should it be allowed as an excuse for military usurpation. They intended MARTIAL LAW. 179 carefully to preclude all idea that, in any possible case of pre- sumable necessity, it would be allowable for the military to subvert tlie civil authority. They intended to repudiate and utterly reject that servile maxim of arbitrary Governments, salus popuU suprema lex, also that other inter arma silent leges ; and substitute in their stead that republican maxim alone, suited to constitutional freedom, Jiat justitia, mat coelum. The concurring import of all this language, of all these men of the Revolution is, that, at no time, for no purpose, under no pre- text, shall military supremacy ever have foothold in this land. Those stern republicans, who loved freedom with a holy devotion for its own sake ; who cherished it as the choicest good of human existence, as that inappreciable something without which life was not worth the having ; who were fully imbued with that Cassius-like spirit, which would as lieve tolerate the eternal devil as a usurper in Rome ; they who had won their own freedom with their blood, and whose greatest care was to transmit it unpolluted to their remotest posterity ; they, th e mighty founders of this great Republic, with full knowledge of all the temporary ills and inconveni- ences that might ensue, determined, whatever might be the result, to leave military men not an hour, not an occasion, for the lodgment of that usurping, overmastering power which has been the destruction of all other republics. They knew that to give it ever so slight a pretest for acting by its own authority, and upon its own mere discretion, in subversion of civil authority, would be, from the mere encroaching principle of all power crescit eundo, to allow it means by which, sooner or later, it would prostrate all those safe-guards which they were so sedulously rearing to secure to their posterity the en- joyment of that greatest earthly boon — a well-ordered civil liberty. As to the Constitution, the goodly fruit of all their toils and dangers, the matchless work of their unequaled wisdom, in which are garnered up the world's last hopes for civil liberty, in which freedom must forever live or know no life, as to its sanctity — its inviolability — its supremacy — they adopted as a maxim for uniform observance and unvary- ing application, fiat justitia, ruat coelum. Thus far, in our history, I am proud to say, the maxim has 180 MARTIAL LAW. been inflexibly carried out by at least one department of the Government. Our courts, in numerous and unwavering de- cisions, have uniformly returned the same stern answer, to the officers of the army and navy, that no State necessity can, in the eye of the law, authorize or excuse a violation of individual private right, but that all reasons of excuse and all claims of indemnity must be addressed to the discretion of the other departments of the Government. Certain ancient dicta that countenanced the taking or destruction of private property, in cases of great State necessity, were rejected as unsuited to, and inadmissible in our system of Government. The same answer has uniformly been returned to the Legislature, that no necessity will authorize a violation of the Constitution, by the unanimous vote of even that highest department of the Government. For the sake of the military discipline of the soldiers of his country, a Eoman consul caused his own victorious son to be beheaded for fighting against orders. The three hundred Spartans threw away their lives at Thermopylae, upon the same principle. These, and such like examples rendered the discipline of their soldiers perfect, and their armies invincible. "War was the great business of those Republics, and the mili- tary discipline of their armies the most important interest of the State. Ours, on the contrary, is a pacific Republic, need- ing and seeking no aggr^indizement by foreign conquest, and shielded, by happy geographical position, from all danger of permanent foreign invasion. Our distinctive, most character- istic national feature is, that of ha\'lng emphatically a Govern- ment of law. For that alone can we excite either the envy or admiration of other nations ; for that alone can we justify the exulting pride or heart-devoted love with which we afi'ect to regard our country. The great national interest with us, the great point of discipline is, and must ever be, implicit and de- voted obedience to the law. Preserve the sanctity and invio- lability of the Constitution, and the great vessel of State will, without guidance, escape the " Scylla and Charybdis of anar- chy and despotism." Destroy that sanctity, suffer it by re- peated precedents to be set aside at the mere discretion of party majorities, military chiefs, lynch judges, or mobs, under MARTIAL LAW. 181 tlie pretext of necessity, and no guidance can save us from one or the other of those perils. Let those who are sighing for the superior blessings of a stronger Government, who are dreading the supposed too strong democratic tendency of our institutions, and who would cling even to martial law, as a conservative principle against that tendency, take a more con- sidered view of the real character of this nation, and they will be satisfied the chance is at least equal, that monarchical insti- tutions will never be reared in this country but upon the wreck and ruins that a previous anarchy shall have left behind. Are they willing to pay that price? Why not rather, all beautiful and lovable as it is, endeavor to secure for the Con- stitution, by precept and example, that affection and obedience which are alone necessary to its perpetuity and the successful proof of its being the wisest and the best, as it is the freest Government ever known to the world. Anarchy is not to be avoided by the destruction of the principal of constitutional sanctity. There can be no means more certain to destroy that sanctity, than the allowing a discretion, in any single man, to trample the Constitution under foot. That ingrained feeling of equality, which will remain as long as there is the semb- lance of freedom left in the land, teaches each of us to believe that he has as much right to violate the Constitution as any other man. How much rather will a hundred or a thousand assume the right to a similar discretion, even though you call them a mob ; and with still greater propriety and aptitude will party majorities, in the State Legislature and in Congress, in- fer a discretionary right to violate the Constitution, for the sake of that greatest State necessity — party supremacy. We are told of two cases of the violation of law and private right by Washington, at the siege of Yorktown, as the two great- est, if not the only instances of usurpation of power by him dur- ing the whole of the Revolutionary war. They will serve as examples to elucidate the subject, verging as they do to the very utmost limit of what an officer may do, and stand morally excused, without being excused by the law. One was the dem- olition of a house that stood in the way of his approaches to the works of the enemy ; and the other, authorizing the seizure of some cattle, indispensable to the sustenance of his 182 MAKTIAL LAW. army. Botli were, even strictly speaking, necessary violations of law and private right ; but no otherwise so, except in a moral sense, than if the same things had been done by a pri- vate individual. Legally speaking, the acts derived no validity from the facts of their having been done by a military com- mander under circumstances of the most urgent State neces- sity. He no doubt would voluntarily have made good the damage out of his own pocket, if redress could have been had in no other way ; but he could have been compelled to do so in a court of law. The circumstances attending the acts would have aided his defence no otherwise than to prevent the jury from giving what is termed smart money. If he had sold the cattle, or bartered them for other provisions, he would not have transferred the title, but the owner could still have recovered them from whomsoever he might have found in possession. If the owner had resisted and killed the officer making the seizure, it would have been justifiable homicide ; if the officer had killed him, it would have been murder. So, also, if Mr. Louallier had killed General Jackson, in defending himself against the illegal proceedings of the Greneral, it would have been justifiable homicide ; whereas, if he had been hung by sentence of the court-martial, as they had no lawful jurisdic- tion over him, it would, in a legal as well as moral sense, have been murder, and a foul one too, not only in the General, but in every member of the court-martial, for which nothing but their blood could have attoned. This law is well settled. In- deed, the court-martial so considered, in effect so decided, and refused to soil their hands with the work. They sustained a plea to their jurisdiction upon all the charges, except that of being a spy, and promptly acquitted him of that, both the charge and proof being alike ridiculous. There is, therefore no truth in the notion that the proclamation of a military commander can divest the owner of title to his slave ; or in the idea of Messrs. Adams and Buchanan, that the proclama- tion of martial law actually supersedes the civil law, and di- vests civil functionaries of their powers. On the contrary, in no shape, in no way, for no purpose, does or can the law sanc- tion these usurpations as legitimate ; and most certainly not, MAKTIAL LAW. 183 when the usurpation is treasonable and the purpose a foul and wanton murder. Little did I ever expect to live to hear the doctrine of pas- sive obedience and non-resistance to a usurper preached in the halls of the American Congress ; that the usurped authority of a military commander could rightfully take from me all my civil rights as a freeman, and deny me even the right of remonstrance, that poor prerogative of the wretched under the penalty of death ; that it could revoke the power of my constitutional guardian, the judge, compel him, as a matter of duty, to become the aider and abettor of usurpation, and to perform the office of my hangman, if the usurper so wills. According to my remembrance, the only attempt at martial law, during the Revolution, was in the State of Virginia. At a gloomy period of the war, when the British army was de- vastating that State, certain members of its Legislature, con- sulting their fears more than their allegiance to the principles of liberty, had the folly to introduce and seriously urge a proposition to make Patrick Henry temporary dictator. We all recollect how that proposition was met. The proposal and the proposers were instantly silenced by a single sentence, calmly uttered by a true-hearted republican of the old stamp. That noble-minded Virginian, though a personal friend of Henry, as the only suitable answer to the proposal, contented himself with telling them : " The day you place your dicta- torial crown upon the brow of Patrick Henry, or any other man, that same day I'll plant my dagger in his heart." This brought them to a sober thinking, which soon satisfied all that no temporary advantage, to be gained by the accumula- tion of power in a single hand, however trustworthy, could compensate the evils of such an example in a republic. What would the men of that day have said to a dictatorship), not created by the Legislature, but by one man's own usur- pation. Twelve months ago, I should have been ashamed to think so meanly of any portion of my countrymen as to be- lieve that General Jackson could have enacted the things he did at New Orleans, in any one of the older States, where there was an unmixed native population, and have escaped with his life. But, since then, the conduct of the Rhode Island Legis- 184 MARTIAL LAW. lature, with tlie tame acquiescence of tlie people of that State, and the damnable heresies preached in the halls of Congress, with the attendant public apathy, have raised a horrible doubt whether a large portion of the nation is not already in training for the yoke of a master. What would the men of the Revolution have said to these modern doctrines? What would they have thought of the vindication of everything General Jackson did, as justifiable by some, and as excusable by others ? ISTot merely a single violation, a single act of disobedience to the Constitution, under circumstances of imperative and controlling necessity, but a deliberate abolition of all Constitution and law, by for- mal proclamation with a substitution in their stead of the ar- bitrary will of a self-appointed dictator — a dictatorship estab- lished over some forty thousand people — a dictatorship en- forced by an actual putting down of the legislative and judicial authorities at the point of the bayonet — a dictatorship accom- panied with many of the types of all tyranny, and, among others, that ancient one, a prescribed curfew hour — a dictator- ship enforced for three long, weary months, and for most of that time in pretended apprehension of a defeated, disheart- ened, and disabled enemy — a dictatorship that was closed in an attempt to inflict an ignominious death upon a worthy and respectable citizen, chargeable with no fault or crime, none, literally none other than having the manhood publicly to call in question the legality of the dictatorship : and this, too, when the dictator had information, which he believed, that the treaty of peace had been actually ratified. What would the men of the Revolution have said to the vindication of such a dictatorship as this, as rightful in itself, and as one to which ever}'- good citizen was bound to submit and aid in enforcing ? The most temperate among them would have said that he should prefer to be the tenant of the forgotten grave of the humblest man, who by hand or voice ever aided the holy cause of freedom, rather than live to enjoy the proudest seat of the most talented Senator, and advocate such slavish principles. But those men of the Revolution, they are gone, all gone, leaving nothing of their spirit behind — none worthy to be called their posterity. MARTIAL LAW. 185 If the moral sense of General Jackson, upon the pretext of mere military discipline, pointed out death as the just and appropriate punishment of Air. Louallier, for merely calling in question the legality of his assumed authority, did it never strike his defenders, as a strange casus-oyyiissus in our code, that it should be no crime, with no similarly appropriate pen- alty, to dispute the rightful commands of ten millions of free- men and subvert their Constitution with an armed force? Have he and they lived thus long under the delusion, that in the enforcement of his martial law, he was committing no crime known to and punishable by the laws of his country? Do they think that the framers of our Constitution, who ap- pear to have held this mode of usurpation by martial law, in such special abhorrence, have been so negligent as to make no provision for its punishment ? That would be a sad delusion, indeed, and a most severe imputation against the founders of our Government. There has been no such negligence — there is no such casus- omissus. The case is amply, is well provided for. It is treason. It comes completely and entirely within both the spirit and let- ter of the definition of treason, as given in the Constitution. If a military commander shall suppress the civil authority and enforce martial law by the power of the bayonet, he will owe it to the clemency of his country, and not to the want of law, if he does not meet a traitor's doom and felon's death. It is both literally and in effect levying war against the United States. He who levies war against the legally constituted authorities of this country is none the less a traitor because he may hap- pen to have a military commission from the Government, or because he is backed by an army of devoted American soldiers. Those facts do but serve to deepen the tincture of the guilt, because, like Macbeth, he is in " double trust." Let it not be said there is the absence of the criminal motive necessary to constitute treason. The motive being what it may, the act of putting down the lawful and rearing up an unlawful Govern- ment, is treason all the world over. The good of the country is the alleged and frequently the true motive for all such acts. No man can be allowed the discretion to pursue what he may suppose the public good, by a resort to such means. The use 24 186 MAKTIAL L AW. of tliose means, whatever the motive, must always be adjudged to constitute the crime. Try it as you will, sift the subject as you may, you can make nothing less of it. 'T is plain unmixed treason. Yet, General Jackson has the modesty to appear before the Government, not humbly seeking its mercy or forgiveness, but proudly demanding what he terms justice — that is, commenda- tion and full approval of all he did. lie says he does not want the money, and will not receive it back, but upon the condi- tion of exculpation to him and inculpation of the judge who inflicted the fine. The money should not be refunded upon any terms, but certainly never upon those he demands. That fine, in connection with his own most noble conduct pending its infliction, constitutes the only atonement for martial law. There may be room for honest difference of opinion, whether, in consideration of his great military services, the Government was right in receiving that atonement as adequate. But there is no room for difference of opinion as to the propriety of Con- gress, directly or indirectly, giving its sanction to the enforce- ment of martial law, loaded down as that mode of treason is, with all the odium the founders of the Government could heap upon it, and intrinsically dangerous as it is to liberty. The Government may rightfully remunerate an officer for a viola- tion of law in the destruction of private property under circum- stances of great State necessity, such as the instances furnished by Washington at the siege of Yorktown, but never when the violation is accompanied with the highest crime known to the law. The only crime which, under the pretext of State necessity, should ever receive even the moral sanction of a Republic, is that of assassination, when it is also tyrannicide. The ancient Republics commemorated the virtue and patriot- ism of the tyrannicide by statues erected in the temples of their gods. But with us, even that most plausible and allowable of all the pleas of necessity should not be countenanced by the law, or receive the direct sanction of the Government. Its absolution must be found in the affectionate gratitude of the nation, and its commemoration left to the immortalizing powers of the orator and the poet. The modern abuses of what may be termed the sacred prerogative of tyrannicide furnish ample MARTIAL L AW. 187 warning as to the impolicy of encouraging the exercise of mere individual discretion, in the perpetration of crime and violation of law. The extravagant lengths to which such a man as Mr. Adams is already, by analogy, endeavoring to push a single un- sanctioned precedent of martial law, should afford abundant warning against that particular crime ever receiving the direct sanction of the Government. General Jackson tells us that his fine ought to be refunded, because if that precedent is not overruled, military command- ers will be deterred from declaring martial law, for fear of the punishment they may receive at the hands of a " vindictive judge." Does he not know that the pardoning power of the President, and the supervisory authority of superior courts, takes from a judge this power to be vindictive ? Does not his historical reading teach him, that the liberties of no country ever fell beneath the ermine of a vindictive judge ; but those of every people have been crushed beneath the batons of usurp- ing military commanders ? In a community of laws, we want no precedents to encourage the natural proneness of any class of men, and especially military men, to usurp more power than properly belongs to them. They need no spur to prick them on, save only the natural thirst for power, and their own " vaulting ambitions." "Wliat we want are precedents of their adequate punishment for delinquencies in this line. When a military man shall debate the question of martial law in his own mind, it shall not be in the fear of what he may suffer "at the hands of a vindictive judge;" but, of what he may suffer under the righteous verdict of a jury of his country at the hands of the hangman. We want it to be known and dis- tinctly understood by our military men, that when they under- take to enforce martial law, they undertake to commit high treason, and that they do it with the halter round their nocks. One word as to the report of the minority of the Committee of the House of Representatives, though, as to matter or man- ner, it is not worthy that word. It places the claim to restitu- tion on the importance of the General's services; and to en- hance the value of the victory at New Orleans, it insists that, if the city had been taken bythe enemy, England, acting upon her usual policy of might and not right, would have refused 188 MARTIAL LAW. to surrender it, notwitlistanding tlie treaty of peace, and inti- mates tlie dastardly opinion, tliat this nation would liave been base enough to permit England to retain it. Has this nation ever sliOAvn itself unmindful or ungrateful for the military ser- vices of General Jackson? Were such services ever repaid with more heaping measure ? Did any man ever owe more to his countrymen ? But say that those services still remained to be requited, would that be sufficient reason for such an inno- vation on the principles of the Government, as directly to sanction the right of a military man, to enforce martial law in this country. "Wo worth the day," when the bold hunters of Kentucky and Tennessee gained for their commander that most brilliant chaplet of renown, ever won by the undisciplined valor of a free yeomanry ; " wo Avorth the day," that could be the occasion of engrafting such a principle upon our institu- tions. Better that those gallant hunters should have sustained a disastrous defeat ; better, far better, that the city should have been sacked and burnt. Once concede a discretion in any man or body of men to set aside the Constitution, though the forms of a republic may still for awhile remain, yet the all-essential, the life-giving principle of civil liberty, is gone forever. No. in. It has already been remarked that the suspension of the writ of habeas corpus by no means superinduces the establishment of martial law. The effect of a bare suspension of the privi- lege of that writ would not be to confer upon the Executive even the power of mere arrest; but when accompanied by the other appropriate legislation, it enables the Executive to take, and keep in custody, such as are suspected of inimical designs against the Government, but who have been guilty of no overt act rendering them directly liable to criminal prosecution. The measure is merely precautionary, and the means allowed are for prevention only, and not for punition. It enables the Exe- cutive, under the authorization of the Legislature, temporarily to restrain the freedom of a suspected citizen, so as to prevent him from aiding the rebellion or invasion, and to have him MARTIAL LAW. 189 ready, at a proper occasion, to be surrendered to, and be dealt witli, by the judicial authorities, by due course of law, for any offence with Avhich he may be chargeable. The Constitution is express, and without qualification or other exception than that of " cases arising in the land or naval forces, or in the militia when in actual serAdce in time of war or public dan- ger" — that "no person shall be held to answer for a capital or otherwise infamous crime, unless, on a presentment or indict- ment of a grand jury, nor be deprived of life, liberty, or pro- perty, without due process of law." Lideed, the power of a commander to enforce the ordinary martial law over those actually engaged in military duty in the army or navy does not result from his commission, but comes, in England, from the annual mutiny bill, and in this country, from the rules and ar- ticles of war ordained by Congress, or similar enactments of the State Legislatures. Conceding the power to arrest and detain to be a mere min- isterial function, Congress may confer that power on the Ex- ecutive. But the power to try and punish a private citizen could not be conferred on the President, or any member of the Executive department; for that is a judicial function which, by the Constitution, can be conferred on the judiciary alone. The want of power in the Legislature of any one of the States having a formal, written Constitution to establish mar- tial law, is equally obvious. The Constitutions of Massachu- setts and New Hampshire alone seem to contemplate a dis- cretion in the Legislature to enforce military service other than that of bearing arms, by pecuniary mulcts, or such like penal- ties, through the instrumentality of a military court. An act declaring martial law, without defining what offences were to be embraced or what penalties attached, would be of no more validity than an act proclaiming the laws of nature. Both would, if for no other cause, be void for uncertainty. But such an act would be also void for direct repugnance to the Constitution of every State in the Union. As the charter of Rhode Island, heretofore used in lieu of a Constitution, has no bill of rights, it may be inferred by some that its Legislature has an arbi- trary discretion on this subject, and that its powers extend even to the appointment of a dictator, which, in substance, 190 MARTIAL LAW. seems to have been the object of the late act, judging from the account given of it in the public papers. This, however, would be a great error. The powers of government granted by that charter are expressly declared to be in subordination to the laws of England, and, of course, to what is there deemed the fundamental or constitutional law of magna charta and the de- claration of rights, though the latter was adopted after the granting of the charter. The long unquestioned usage since the Declaration of Independence may imply an assent, on the part of the people of Rhode Island, to a legislative power within those limits which do not permit the creation of martial law. The omnipotent power of Parliament to annul or disregard any portion of the English bill of rights did not, at the Revo- lution, revert to the Legislature, but to the people of Rhode Island ; for, as the implied assent of the people to government is contrary to the first principles of liberty, as understood in this country, the powers of the Legislature, none other having been expressly granted by the people, must remain restricted, as they were anterior to the Revolution, except so far as the change of circumstances necessarily and unavoidably required an implied assent to the extension of those powers, or the re- moval of the restrictions upon them. This, it is presumable, is the mode in which the matter has been heretofore viewed and adjudged in that State. It is not fair to presume the peo- ple of that State would have so long endured an unrestrained power in the Legislature. A power must therefore be found in the charter itself for the Legislature to alienate all the powers of government to a single man, or, in other words, to create a dictatorship under the name of martial law, or none such can exist. K this view of the subject should, by any one, be deemed not correct or conclusive, there is another that is undoubtedly so. The Federal Constitution says the United States shall guarantee to each State a republican form of government. When the people of Rhode Island acceded to that Constitution, they made express declaration that their State Government then was, or gave express assent that it should forever thereafter be, a repub- lic within the meaning and contemplation of the Constitution. It is unnecessary to attempt the delicate and perhaps difficult MAKTIAL LAW. 191 task of defining what is a republican form of Government •s^-itliin the meaning of the Constitution ; for there is no diffi- culty in the conclusion that the consolidation of all the powers of government into the hands of one man, however appointed, is not a republican form of government within that meaning. 'Nor could the people of any State, by any mode, adopt or cre- ate a government which vested absolute arbitrary power in a single man. Much less, therefore, can it be contended that the Legislature has the power to create such a form of govern- ment without the express sanction of the people. Or, in other words, if it can be shown, by any process of reasoning, that the Legislature of Rhode Island does possess the discretion and power, to create a military dictatorship over that State, then the casus foederis has arisen, which requires the interposition of the United States, under the constitutional guarantee of a republican form of government, to the people of every State. Whatever diflerence of opinion may have existed as to the propriety of the Government interposing, pending the recent rebellion, there would or should be no such difference of opinion, as to the propriety of interposition, for the purpose of relieving the people of that State from a dic- tatorship. The enforcing, or the attempt to enforce, such a form of government upon the people of that State, by an armed force, would most undoubtedly be treason in the actors, and all aiders and abettors of such a project. APPENDIX TO CHAPTER XIII. (Published June, 1861.) Silent leges inter arma — is not — never was a legal maxim. Such a maxim would be incongruous in any civil code. It is not — never was — never can be a recognized principle in the code of any government pretending to have civil liberty for its basis. Under every such government, the law necessarily claims for itself absolute supremacy at all times, and under all circumstances. Otherwise it could not be a government of law. Whenever public safety may require the temporary deprivation of freemen's right to exemption from arbi- trary arrest, it confides the discretion to judge the necessity, and the power to 192 MARTIAL LAW. make the suspension, alone to its highest department — its legislative depart- ment. The act of suspension, and the power exercised during the suspension, are all parts of the law itself. Our written constitutions have even taken the superabundant caution to pro- claim that they are "the supreme law of the land."* They recognize no equal — still less a superseding superior. They spurn all pretended laws of necessity as their equals or superseders. They expressly condemn and de- nounce all laws of war or arms, except such as are created by the Legislature, under constitutional restraint. Without this perpetual supremacy of law a7id constitution, there can he no civil liberty. It is, perhaps, not possible to trace the origin of the phrase, silent leges inter arma. The eloquent Mr. Storrs, of New York, said in Congress some forty years ago, that it " first fell from the dastard lips of the coward Cicero whilst playing sycophant to the dictator Caesar." Enlightened jurists and statesmen have always classed it with the Jesuit maxim : " the end justifies the means ; " the one being not less repugnant to freedom than the other to sound morals. They have classed it with solus populi suprema lex, that immemorial pretext for military usurpation and tyranny. They have also classed it with the slavish precept of "passive obedience and non-resistance to the divine right of kings," — the phrase inculcating, as it does, passive obedience and non-re- sistance to the devil-derived right of usurpation. The founders of our Gov- ernment taught that public safety can always be preserved, though government officials be restrained within the limits of the Constitution ; or if not so to be preserved, it will be because of the corruption of the people, who will have ceased to be worthy of the name of freemen. It will be full soon enough to disregard this teaching when its perfect wisdom shall be disproved by repeated experiments. Thus far our national experience, as also that of England, has been all in its favor. They taught that the utmost possible temporary mis- chief which might ensue from the want of power to proclaim martial law, could not equal the permanent mischief that would ensue from recognizing a discretion in military commanders or Presidents, to usurp power in disregard of the Constitution, under any pretext whatever. * By the common law a descent cast, in time of war, was not allowed to bar a right of entry. The following quotation from Lord Coke, commenting on that rule, will show how far the phrase silent leges inter arma has been adopted into our law, and explains the mean- ing of "time of war," in our books. " When the Courts of Justice be open and the judges and ministers of the same may, by law, protect men from wrong and violence and distribute justice to all, it is said to be ttvie of pence. So, when by invasion, insurrection, rebellion, or such like, the peaceable course of justice is disturbed and stopped, so as the courts of justice be, as it were, shut up, et silent leges inter arma, then it is said to be time of war. The trial hereof is by the records and the judges, for by them it will appear whether justice had her equal course of proceeding at that time or no, and this shall not be tried by jury." It merely afforded an excuse to a party for apparent negligence, which otherwise would have barred his right. Time of rear gave no recognized pretence for the enlargement of the powers of officers of Government, except such as that day resulted from the then sup- posed prerogative of the crown, to which we have no counterpart in this country. MARTIAL LA AV. 193 It would be incredible, if we had not the proof before our eyes in the public press, of the amount of j^ross ignorance prevalent in the nation upon this im- portant subject, causing the utterance of the wildest vagaries as to the powers of the President and his military subordinates, calculated to lead even well- intentioned, loyal officers into serious difficulties, perhaps into great criminal offences. Unable to meet the recent very lucid and convincing argument of Judge Taney, a respectable editor attempts to get rid of it by saying it has no application to the present state of things, because it is based upon the Con- stitution, which he insists is a mere fair weather Constitution, not intended to operate in the the stormy times of war or rebellion. This, too, in the face of the very words of the Constitution, which expressly provides the necessary power for carrying on war and suppressing rebellion. The very reverse of this idea is the truth. With much more propriety should it be said that constitu- tional restraints upon power and the bill of rights were not made for the calm sunshine of peace and public quiet, when there is little temptation to encroach upon private right of freedom, but for those tempestuous periods of war and rebellion, when the vindictive passions of men lead them to persecution. AVe are told that a respectable law lecturer at the North instructs his class, that martial law is aa indispensably necessary power to every Government, as much as the power of carrying on war in self-defence. There never was an assumption less sustained by fact or reason. As the long war for our inde- pendence was successfully carried through in the midst of numerous traitors and tories without a resort to martial law, and as Jackson was the only com- mander who fancied a necessity for it during the three years' war of 1812, nothing can be more absurd than the assumption of any such necessity. An- other all-sufficient disproof of the fact is, that during the various conspiracies and rebellions in England during the last century and a half, though the habeas corpus was frequently suspended, yet martial law has never been resorted to as a means or an aid towards their suppression. Indeed, as decided by Lord Loughborough, it has been uniformly held to be totally incompatible with the genius of the English Constitution. If, with such a crowded popu- lation as they have in England, often starving and rebellious, there is no necessity for martial law, how perfectly preposterous to contend for it as a thing of absolute necessity in this country. The lecturer says martial law is " wholly arbitrary," and adopts the defini- tion of it given by the Duke of Wellington, "the will of the commander-in- chief." Yet it is contended that such an infamously slavish principle as this, suited only to a nation of slaves, is lurking unexpressed in our free institutions as an indispensable incidental power of all governments. Can it be that the superintending authorities knowingly permit the inculcation of such abomin- able doctrine in our principal law school, and that the lecturer himself does not perceive that he is training its pupils to become the willing slaves of a military usurper. The suspension of the writ of habeas corpus in England gives the power of temporary arbitrary arrest, because the crown has at all times the power of arrest. Not so as to the President or a Governor in this country, who have, 25 194 MARTIAL LAW, cx-qfficio, no such power, and Judge Taney even doubts whether such power could be conferred upon them by the Legislature. Without expressing any opinion upon this doubt, it is perfectly clear to my mind, as it must be to every lawyer, that as he decides no power can be conferred by a Congress or a Legislature upon the President or a Governor, or a court-martial to try and punish even a prescribed defined ofi'ence on the part of a free citizen not engaged in military service. The Constitution is perfectly impregnable upon this subject, and being so, can there be grosser folly than to suppose that a President may rightfully usurp power to arrest, try, and punish by his arbi- trary will ? It is high time our officers should be informed, that so far from a President having power to make or authorize the arbitrary arrest of a free citizen, if he were to attempt to make or aid in making such an arrest, the citizen would have a right to kill the President in self-defence, and would be acquitted as for justifiable homicide by any intelligent court and jury. Whereas, if the citizen were killed in making resistance, the President and his aiders would, in the eye of the law, be guilty of wilful murder, and condemned to the gal- lows if the law was faithfully administered. The profession and the country owe Chief Justice Taney so much for his recent orthodox, lucid, and most convincing opinion in the habeas corpus case, that it is painful to hold him up for censure as a promoter of the loose opinions now afloat in this country. He delivered the opinion of the Supreme Court in Luther vs. Bordlen, 7 HoAvard, which sanctioned the power of the Legisla- ture to establish martial law over Rhode Island, It is true the Court distin- guish the case from that of an act of Congress, or the statutes of any other State, by reason of the fact that the people of Rhode Island were living with- out the protection of a written Constitution or Bill of Rights. Still the Court seems to recognize martial law as a sort of necessary governmental instru- mentality, to which an untrammeled Legislature might resort even in this Union, though the Constitution guarantees to each State a republican form of government. It is not the purpose to go into a seriatim argument to prove how repugnant is the possession and exercise of such power to all our Ameri- can ideas of a republican government. The foregoing pamphlet was written shortly after the passage of the act in question. The author's opinion as to its validity, and the reasons for that opinion, will there be found. Such as they are, he can well afibrd to submit them to the profession for a candid com- parison with those of the Court. He will here merely subjoin a few remarks to fortify one of the main points relied on by him, and upon a decision of •which the Court might have escaped its pernicious blunder as to martial law, if, unfortunately, the point had not escaped the attention of the whole Court, the dissenting Judge included. The statute is a very brief one, in these words : " The State of Rhode Island and Providence Plantations is hereby placed under martial law, and the same is declared to be in full force, until otherwise ordered by the General Assem- bly, or suspended by proclamation of his Excellency, the Governor of the State." June 25, 1842, The statute does not say what shall be an offence MARTIAL L A AV. 195 under it, wlio shall arrest the oiFeuder, who shall try or who shall punish him, nor what shall be his punishment. The point overlooked by the Court is, that the statute was void for iincertainiij. The only clue given to the legislative intent is to bo found in the true sig- nification of the phrase martial laic, whatever that may be. The law authori- ties all tell us that it is not merely undefined, but it is undefinable. No man knows what it means. The Legislature had as well have expressed itself in an unknown language, or some unintelligible jargon. Even the adventurous lecturer who so gallantly advocates it, substantially admits that, after all his research, he has been unable to find out what it is. The nearest approxima- tion to a definition that he has been able to find, or invent, is this: "The will of the Cominander-ia-chief." But far be it from me to make the degrading imputation against the Court, that such was its sense of the meaning. No man filling such an exalted station could be so reckless of civil liberty as to concede a power to place the lives, the fortunes, and the liberty of the people of an entire State of this Union, at the capricious will of a military chief. The venerable judges must have trusted to the fact of the statute having been adjudged valid by the State Courts, that the phrase must have a known, set- tled signification in Rhode Island, though they themselves could not find it out, and acquiesced from that comity and deference which they habitually extend to State construction of State statutes. Could they have forgotten the indignant rebuke given by Burke on the trial of Warren Hastings, to the sug- gestion oi arbitrary power, even in a Governor-general of India? — " He have arbitrary power ! ! my lords, the India Company have not arbitrary power to give him ; the king has no arbitrary power to give him ; your lord- ships have not ; nor the Commons ; nor the whole Legislature. We have no arbitrary power to give, because arbitrary power is a thing which no man' can hold, nor any man can give. If, then, all dominion of man over man is the result of Divine disposition, it is bound by the eternal laws of Him who gave it, with which no human authority can dispense ; neither he who exer- cises it, nor even those who are subject to it; and if they were mad enough to make an express compact that should release their magistrate from his duty, and should declare their lives, their liberties, and their property dependent upon, not rules and laws, but his mere capricious will, that covenant would be void." According to Burke, all the people of the State, in convention, could not have granted an arbitrary power, such as the Court concedes a right in the Legislature to create, without any specific authority, express or implied, from the people. It is rather a melancholy and mortifying reflection, that an English statesman should, even at that early day, have had a so much higher appreciation of human freedom, than do now some of our most enlightened American jurists. It is a familiar legal principle, "that if a statute is so ambiguous, or con- fused, that the courts cannot with certainty discover the meaning," they will pronounce it void, because of the uncertainty. With all deference, such should have been the decision of the Court upon this statute. The Legislature 19G MARTIAL LAW. must speak in intelligible language, or it ought not to expect obedience to its command. We were fully forewarned by our older statesmen, that disunion or secession would necessarily be attended by a prolonged civil war. Their sagacity hav- ing been so far verified, we should carefully heed the balance of their warning. They warned us that the result of such a war would be the establishment of one or more military despotisms over the nation. Everything now going on is facilitating and hastening that result. Habitual disregard of law and Con- stitution brings them into contempt, destroys all reverence and affection for the Government, and thoroughly demoralizes the whole moral tone of the na- tional mind. The outrages of one party become the ample justification of the other. Every citizen knows he has as much right to violate the Constitu- tion as a President, and thousands of citizens, acting together as a civil or military mob, will think they have a far better right to trample on the Con- stitution. When a President willfully disobeys the sanctified writ of liaheas corp2is, issued by the Chief Justice, he, by his example, encourages all man- ner of disregard to law and Constitution. He inaugurates anarchy. He uses the influence of his high position to inaugurate, throughout the nation, mob-law, lynch-law, and vigilance-committee-law. These have proved every- where, the precursors of military despotism. No one would seriously impute to the present jocose, amiable incumbent of the Presidential chair, the deliberate purpose of establishing a military des- potism, on the ruins of our free institutions, either for his own benefit or that of his party. But if such be, as they clearly are, the probable effects of his acts, he should be checked and controlled without regard to his motives or intentions. He should be impeached for his disobedience to the writ of habeas corpus. He should be impeached for wilful disobedience to the command of this great nation of freemen, legally issued through its authorized functionary, the Chief Justice. His impeachment and amotion from office would be worth more to the sacred cause of liberty, would be worth more to the permanency of free institutions in this nation, than even the speedy suppression of the present great rebellion. The reiterated outrages of the seceded traitor States, upon all obligations of patriotism, duty and honesty, together with their encouragement of the most infamous treachery in traitor officials, affords already, with the incon- siderate millions, ample justification for Presidential usurpation of any de- gree of power he may choose to think necessary toward suppressing the re- bellion. The unparalleled infamy of the members of the Virginia Convention and the Tennessee Legislature, in their base betrayal of popular trust, aggra- vated this sentiment. , The considerate few, they especially who, as members of Congress, the people have appointed the sworn guardians of the Constitu- tion, should think and act quite differently. They should teach the nation that the preservation of the Union is principally desirable for the sake of the Constitution, which is itself to be valued and cherished principally because it is the consecrated guardian of the inestimable principles of civil liberty. They should teach that treason to those principles is more than treason to MARTIAL LA AT. 197 country ; that the destruction of the Constitution is too costly a price to pay even for the preservation of the Union ; that when the nation becomes so de- moralized as not to properly appreciate the sanctity of the Constitution, the Union will no longer be worth preserving, for the nation will already be pre- pared for the rule of a master. But nothing of the sort will be done. The halls of Congress, filled as they are with intense partisans, are the last place where we should look for independent patriotism, especially at a time when all society seems guided by the principle, that " thrift follows fawning." Still we should not be without hope, that some dozen or twenty manly, inde- pendent, members of the House of Representatives may be found who will, by a vote of impeachment, make a solemn protest against Presidential usur- pation, so that it shall not wear the aspect, and be quoted hereafter, as an unchallenged precedent. Public sentiment, however unwisely, will no doubt sanction the ratification by Congress of most of the many recent Presidential usurpations under the plea of necessity ; but the arbitray arrest and deportation of private citizens, with contemptuous disobedience to the writ of habeas corpus, should not be of the number. It has been well said of the President's conduct in this par- ticular, that it was folly, which Talleyrand would have pronounced " worse than a crime." The wanton murder of the Duke D'Enghien only served to fix an indelible stain on the character of the tyrant Bonaparte ; and this con- duct, without the apology, as it is, of even supposable national necessity or national benefit, can only serve to bring odium and disgrace on the Govern- ment. If properly considered, there has been, most probably, no actual necessity for any part of the usurpations of President Lincoln. Congress could have been assembled more than a month ago — by the first of June, at least — and all the requisite power for suppressing the rebellion have been legally ob- tained. In the meantime the law furnished him ample power and means to protect the Capital and the few remaining forts. That, no doubt, was his principle, if not sole object, at the time he issued his first proclamation ; and if he had, with manly frankness, so stated, we should not have lost a single Union vote. Volunteers from Maryland, Kentucky, Tennessee, and Missouri would have rapidly flocked to him in such numbers as to protect the Capital, without aid from the free States. The enthusiasm and unanimity with which the proclamation was greeted from the North, caused the after-thought of pre- cipitately crushing out the rebellion. Whether that after-thought was a wise one, there is a great room for difierence of opinion. Some of our wisest think, that so far from being the speediest mode of putting down the rebellion and restoring the Union, it will prove about the tardiest that could have been devised. But, wise or unwise, it was a policy of such transcendent impor- tance, that Congress ought to have had an opportunity to decide upon it, there being neither want of time nor any actual necessity for precluding its decision by rash anticipatory Executive action. There is nothing apparently left for Congress, and Union-loving men throughout the nation, who will not abandon their Government and be thrust into the arms of a causeless, traitor rebellion 198 MARTIAL LAW. for the blunder of an Administration, but to acquiesce, trusting to Provi- dential deliverance from blundering on the one hand, and treason on the other. Should national ruin be the result, let us all protest in advance against State necessity being made the scape-goat for the blunder. It ■will be soon found in the progress of the long war before us, that the gain of only a few weeks in commencing the attempt at suppression by invading coercion, is so trivial a something as not really to excuse, much less justify, enormous infractions of the Constitution. If there be an exception, it is the blockade of the Southern ports, which was so far a matter of actual, immediate necessity, as to induce every patriot to view the act with the utmost leniency. Every good citizen should aid in the expurgation of the dogma, State ne- cessity, from our system of Government, as a justification for usurpation or abuse of power. The dogma is, as it always has been, always will be, an aid to military despotism. It can have no safe lodgment — it can never do good in a republic. Perpetual vigilance being the price of liberty, we should heed the precept at the present, above all other times. There never can be an occasion which can more require the marking and protesting against usurpation. To suppose a want of sound, gainful policy in so doing, is to cast a calumnious imputa- tion upon the loyalty and intelligence of the Union men of the nation. It is imputing that, for mere temporary, well-intentioned acts of the President, they might be induced to countenance treason, and aid in destroying their country. True Union patriots will adopt the policy with a just, a manly confidence in their fellow-freemen. With all deference it is suggested, that there can be no more damaging policy to the Union cause, than for its leaders voluntarily to incur the imputation of recklessly justifying everything the President has done, or may choose to do. Such servility can never win the confidence of this nation. It is due to the memory of Senator Berrien to state, that in a speech de- livered in 1843, he said that his speech of the previous year, from which the foregoing pamphlet quoted, was grossly misreported. THE LAW OF "WAR. 199 CHAPTER XIV. In^o. I. THE LAW OF WAR. February, 1852. "When your country is actually in war, whether it be a war of invasion or a war of insurrection. Congress has power to carry on the war, and must carry it on according to the laws of war ; and by the laws of war an invaded country has all its laws and municipal regulations swept by the board, and martial law takes the place of them. * * * When a country is invaded, and two hostile armies are met in martial array, the commanders of both armies have power to emancipate all the slaves in the invaded territory." — Speech of J. Q. Adams in 1842. Shortly after the delivery of tliis speech the present writer publicly denounced its " extraordinary doctrine as fit only to be met and buried under an universal national execration. * * * A grosser absurdit)^ surely never entered the mind of an intel- ligent man, educated under a Government having a written Constitution." This denunciation, and the argument made in its vindica- tion, Mr. Adams, from his seat in Congress, promised to an- swer ; but from some unexplained cause he never made the attempt. It was predicted at the time that " these ravings of Mr. Adams" would hereafter be " quoted as authority on con- stitutional law," and so it has turned out. Among the mai-.y so using those ravings my attention has been very recently called to a pamphlet written by a law professor in a Massachu- setts college, who has the bold frankness to tell his employers and the public that he so uses them before his class. He also quotes the clause of the Massachusetts Constitution, saying that, except "by authority of the Legislature," no person can in any case be subjected to the law martial " but those engaged 200 THE LAW OF WAR. in the military service ; and intimates the opinion that, notwith- standing this clear provision, martial law would prevail in time of w^ar, and the commander of the State militia would have the rightful power to disregard the State Constitution. In other words, or rather the effect of this is, that the people of this country have not the right of self-government, not having the privilege of making a Constitution to suit themselves. This is not merely folly ; it is wickedness. It is treason against civil liberty and the Constitution ; it is moral treason against the Government. A college is somewhat of a nuisance which permits the inculcation upon our young men of such debasing, anti-republican principles so destructive of every enlightened sentiment of civil liberty. We may cease to wonder at the decay of that devotional fealty to the Constitution which was formerly common to nearly all educated Americans. He seems to think that whatever " might be subversive of the efficiency of military operations" cannot be secured against military power by the people in their Constitutions ; he deeming the efficiency of militar}^ operations the summum bonum of national existence. How differently do these degenerate sons of Mas- sachusetts think of the necessity and safety of military supre- macy from their revolutionary fathers. Those men of the Re- volution held military sway in utter abhorrence, whilst their degenerate sons deem military supremacy so indispensable to the State that the people themselves are not competent, by any- thing they may say or do, to take that supremacy from the military. The Federal and State Constitutions are all made in the spirit of utter repugnance to military rule, and have done everything that written words can do to keep down mili- tary supremacy at all times, under all circumstances. For in- stance, they all say in effect what that of New Hampshire ex- presses in the following w^ords : " In all cases, and at all times, the military ought to be under strict subordination to, and governed by, the civil power." There is no single purpose more distinctly legible throughout those Constitutions than that of keeping the military in subordination, and never allow-' ing them an occasion or pretext for asserting in their own be- half a power above the law. Unlike this professor, the framers of those Constitutions deemed that subordination an infinitely THE LAW OF WAR. 201 greater State necessity than any otlicr tliat could occur, far greater than the mere " efficiency of military operations." The Constitution of Massachusetts is the only one that seemingly permits the introduction of martial law even by legislative authority. The learned professor is graciously pleased to admit that if "martial law is the will of the commander-in-chief," "it can- not exist in this country consistently with the Constitution, for it would be utterly subversive of the Constitution for the time being. ISTeither the President or Congress can constitutionally proclaim or authorize such a power." But he seems to think that if he had the defining of martial law, he could devise something efficient, without trenching on the Constitution. Unfortunately, however, he ha\4ng no such privilege, and the will of the commander being verily the only martial law of which we have any knowledge, or of which the law books giTe any information, the nation must be deprived of his proffered services as a lawgiver. Still the professor claims for military commanders power not only to do nearly everything that may appear to them to be required by military necessity, but to do so free from per- sonal responsibility to the law, with a total exemption from personal arrest, civil or criminal, during military operations. To prove the necessity for this exemption from arrest, he sup- poses a sheriff with his posse, for the purpose of arrest, assault- ing the commander's army in the rear, whilst the enemy are fighting him in front. This supposed case could never occur, for there is not a sheriff in the whole Union fool enough to attempt an arrest under such circumstances ; and if such a one there is he could not find five men in any State fools enough to join him in the attempt. Tliat and such like supposed cases, invented for furnishing a plausible reason for subverting a fundamental principle of the Constitution, only serve to bring in doubt the sanity of the supposer. Why not, with equal pro- priety, suppose hundreds, nay thousands, of unoffending citir zens, men, women, children, wantonly murdered under the rule of martial law, or with their houses burnt and their prop- erty destroyed, turned out in the mid-winter of a severe climate to perish with cold and hunger. If the public press 26 202 THE LAW OF WAR. speaks truth, tlie possibility, if not the actuality, of the latter supposition is being proved under the oj)erations of martial law in Western Missouri. In full corroboration there might be cited the three w^anton massacres committed without pun- ishment or rebuke in the streets of St. Louis by German sol- diers upon unoffending men, women, and children. The correspondent of one of the ISTorthern papers says that the President never reads newspapers. The probability that he has not time to do so gives this assertion some plausibility. Is there no humane citizen, having access to the President, who will call his attention to these manifold atrocities ? Gen- tlemen of first respectability, who have known him long and well, still insist that his heart is in the right place and of the right make ; that it is most kindly and humane. If such things can be done under such a President, we have little temptation for violating the Constitution to let in the rule of martial law. By way of legal authority or precedent in his support, this professor cites the obiter dicta of Judge Taney in the Rhode Island case, and in that of Mitchell vs. Harmony, 13 Howard, 115. The first of those cases has already been commented on in a previous pamphlet. The other case was a suit brought to recover the value of goods seized or lost by the alleged illegal conduct of an oflacer during the invasion of Mexico by one of our armies. The court decided that there was no actual ne- cessity for the seizure, and, after so deciding, it was coram non judice to say wdiat would have been the liability if there had been such necessity. The opinion extra judicially says : " There are, without doubt, occasions in which private property may lawfully be taken by a military ofiicer for public use. In such cases Government is bound to make full compensation to the owner, but the ofiicer is no trespasser." This is in seeming contradiction to what the opinion afterward says: "It can never be maintained that a military officer can justify himself for doing an unlawful act by producing the order of his supe- rior. The order may palliate, but it cannot justify." How much more in harmony with this principle would it have been if the opinion had said, that when an officer chooses to recog- nize supposed necessity as superior authority, and* obey its command, such command may palliate, but not justify — ne- THE LAW OF WAR. 203 cessitj not being recognized as a lawful authority in a Re- public. No precedent or authority is cited to sustain this dictum, and it is confidently believed that none could have been cited. The •whole opinion reads much more like the rescript of a Roman emperor than the decision of a court. There is no argument used to sustain the position, and it is contrarj^ to all proper usage of courts to dispose of so important a principle without either argument or citation of authority. In both these cases Judge Taney has betrayed, in the free use of his dicta, rather too much alacrity of leaning in favor of strong government. Since so high an example has been set for tracing legal opin- ions to imputed political bias, it may not be invidious to sug- gest that Judge Taney is also an Old School Federalist, and to intimate that these leaning dicta may perhaps be ascribable to his bias in favor of strong government. There is a principle or maxim of the common law that pri- vate right of property must yield to public necessity. The principle has been adopted or ratified by our Constitutions, but it has been suh modo only. They all recognize the universal principle of eternal justice involved in the sanctity of private property, and expressly prohibit its being taken for public use without compensation. The adoption of the principle at all results entirely by implication from this prohibition. Judge Taney admits that " the Government is bound to make full compensation. ' ' But how is it bound ? The Constitution gives no remedy against the Government. Congress, though it ought to have done so, has given no such remedy. The Gov- ernment, therefore, is under only an honorary obligation, which in practice most generally proves near of kin to no obligation at all. Indeed, the delays and difliculties in obtaining an act of Congress are such as to preclude the prosecution of a small claim altogether. This could not have been the kind of com- pensation, or the remedy for compensation, contemplated by the Constitution in giving its implied sanction to the arbitrary taking of private property for public use — that forcing individ- uals to contribute an undue share towards the w^ants of the Government. The Constitution must have meant to give the owner a much more substantial protection and remedy. Till 204 THE LAW OF WAR. Congress shall give a direct, available remedy against the Gov- ernment, justice forbids, the true intent of the Constitution forbids, exempting from personal responsibility the officer who makes the forcible seizure. His responsibility is the only available avenue to redress for humble citizens residing remote from the Capital. The superior influence and information of the officer affiord him a far better chance of obtaining indem- nity through the slow and uncertain process of an act of Con- gress. Besides, his personal responsibility will make him observe a proper caution in the exorcise of his arbitrary dis- cretion in making seizures. Such caution is of great value to the Government, and sound policy, for its protection, requires the question to be settled in the way best calculated to ensure the exercise of such caution — the perpetual apprehension of being imposed upon by claims for collusive seizures and ex- cessive seizures is a main reason why Congress manifests such reluctance and dilatoriness in the adjustment of such claims. The interests of both the Government and the owner concur in requiring the Constitution to be so construed as not to allow a taking of private property for public use, without compen- sation actually made, which renders the officer personally liable in the first instance, compelling him, instead of the owner, to look to the Government for indemnity. Such, it is hoped and believed, will be the ultimate decision of the Supreme Court upon full and fair reconsideration. Adherence to this dictum requires a false construction, in violation of the words and whole spirit of the Constitution. If Congress wishes consti- tutionally to exercise the permitted right of eminent domain or sovereign power over private property, it must pay in ad- vance, or give the owner a direct, available remedy against the Government; otherwise, its officers must remain personally liable till compensation is actually made. It is only by a most liberal stretch of the powers of con- struction that even proper adequate remedy can be allowed to stand, in lieu of actual compensation b}'^ pre-payment. The bill recently passed the Senate attempting to authorize the seizure, for national use, of railroads and telegraph lines, gives no such proper adequate remedy, and is therefore unconstitu- tional under any allowable construction. Instead of assessment THE LAW OF WAR. 205 of compensation, to be made under judicial supervision, witli direct recourse upon the treasury for the amount, it directs that three commissioners, of the President's appointing, shall make the assessment for the information of Congress, with whom it will still he discretionary whether to pay or not. It is absurd to suppose that the court will consider this as ade- quate remedy in lieu of just compensation pre-paid. Another section of this bill authorizes the impressment into the nation's military service of all the employees of the roads and lines so seized, subjecting them also to the pains and pen- alties of the rules and articles of war. Congress probably has the power to compel the militia to stand a draft for a term of military duty, but it is doubtful whether it can recruit the regular army in that way. But even if it coukl, there would still be reason for more than doubts whether that would au- thorize this summary impressment of a particular class of citizens, w^hilst all other citizens remain exempt from such op- pression. There may be no specific clause expressly prohibit- ing the exercising of such tyrannical power ; but what is equally efficacious, such power is repugnant to republican gov- ernment, and the whole spirit of the Constitution, which re- quires the burthens of government to be distributed with something like fairness and equality among our citizens. This is in strict analogy with those adjudications and repeated de- clarations of our most eminent jurists, that, even if the Con- stitution had not prohibited the taking of private property without compensation, it could not be done, because such op- pression is so repugnant to the eternal principles of justice, that it could not be allowed in a land of liberty, boasting a republican government. But if specific prohibition must be found against this mode of legislation for taking whole classes of citizens from under the protecting guarantees of the Con- stitution, it is believed that the prohibition against bills of attainder may well be applied for that pui-pose. It is no light penalty to make a soldier of a citizen without any fault in him and against his consent, whilst his neighbors are exempt from such arbitrary usage. If this view be correct, if this indeed be punishment, however light, the bill is to every intent a bill of attainder. The Government can with no more propriety 206 THE LAW OF WAR. use punishment of the innocent as a means of promoting the public interest, than it can take private property for public use without compensation. The discussion of this bill in the Senate is a marked feature of the times, showing by what an attenuated thread the liber- ties of the nation are now suspended. Senators of first respect- ability and intelligence, whilst proclaiming their unalterable determination not to go beyond the Constitution for power to carry on the war, expressed their undoubted belief that the President already has all the power attempted to be conferred by this bill. All this, however, is wandering somewhat from the main purpose of this chapter, which was to make a comment upon, the text extracted from the speech of J. Q. Adams. The pretence that the Constitution was made for peace and not for war, is a new invention of the enemy. It was formerly thought that if the bill of rights was made more particularly for either, it was for time of war or rebellion, because those would be times when men's passions would be aroused and majorities would persecute minorities. The old Federalists, who disbelieve in popular self-government, who derided our Government for its alleged feebleness, who said it might do for the halcyon days of peace, but it would not answer for the stormy times of war, did not pretend that it was intended to operate only during peace, but complained that, being for war as well as peace, it was too feeble for the former. Their com- plaint was that an undue trust in the people, and an undue jealous distrust of Government, had emasculated it in all its departments, especially in its executive department ; that war could not be properly carried on, or rebellion suppressed, with such inefficient powers. Their complaint was, that there could be no enlargement of those powers during war or other emer- gency of great State necessity; that an over jealous solicitude for the preservation of liberty had deprived the Government of necessary efficiency. They never consoled themselves with the belief, nor dared make the assertion, that there was an in- herent principle, or one lurking in the Constitution, which, whenever an emergency arose, would, by the law of necessity, " sweep the Constitution by the board," and substitute the law THE LAW or WAR. 207 of war in its place. Sucli an assertion would have sounded badly in the ears of the men of the Revolution, who, in their Declaration of Independence, had made it one of the principal grounds of complaint against the King, that " he has aftected to render the military independent of, and superior to the civil power." Against that military superiority, they had success- fully fought out the Revolution ; and in making their Consti- tutions, they were specially careful to give it no countenance or foot-hold. There is not, there never can be, in this country, a law of war, different from the constitutional law of the land. There is, there never can be here, any law of war other than that which Congress has created, or may create, within the limits of its constitutional power. The usages of civilized warfare, derived from the law of nations, come to us entirely by Congressional adoption, express or implied, and are neces- sarily limited within the range of Congressional power. They are adopted in mitigation, not as an enlargement of military power. "Whilst conducting war in a foreign country, our ivhole Gov- ernment is under no check or responsibility but that of the enlightened censure of Christendom, though tlie Executive is under the control of Congress. It is otherwise when the war is conducted on our own soil, whether in defence against in- vasion, or defensively or aggressively against rebellion. Here the Constitution has full and direct sway, acts as it proclaims itself to be the supreme law of the land, and is to every intent, the law of the war. It permits the law of nations, or its rules of civilized warfare, to be the laiv of such a war so far as it applies to foreign enemies or to avowed rebels, but never to our own non-combatant citizens ; for that would, j)ro tanfo, be an abdication of our national supremacy within our own do- main — the intervention of foreign law for the government of our own people. It would, pro tanto, be an abrogation of the solemn national declaration, that the Constitution " shall be the supreme law of the land." In express negation of any other hypothesis, we find the Constitution, in full view of all the exigencies of military power in time of war, carefully saying : " No person shall be 208 THE LAW OF WAR. lielcl to answer for a capital or otherwise infamous crime, un- less on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia when in actual service in time of war or public danger ; * * * ^or be deprived of life, libertj^, or property, without due process of law ; nor shall private property be taken for public use, with- out just compensation." If it had been desired or contemplated that the " life liberty, or property" of a citizen not engaged in "the land or naval forces," or in actual rebellion, should be brought under arbi- trary, military power "in time of war or public danger," the Constitution would have said so, and placed us all on the same footing with the militiaman " w^hen in actual service in time of war or public danger." Such militiamen, together wdth that of " cases arising in the land or naval forces," and armed rebels, are the only exception to the comprehensive protection with which we are all panoplied, against the deprivation of " life, liberty, or property, without due process of law," at all times and under all circumstances. The assumption by our military commanders of power, under the pretended law of war, as something different from the constitutional law" of the land, to deprive a non-combatant citizen of "life, liberty, or property, without due process of law," is pure usurpation. The only law of war for their guid- ance and government, is that from which they derive their commissions, together with their whole power — that is, the Constitution and the constitutional acts of Congress. Influenced by the pernicious example of General Jackson, and the still more pernicious precepts of Mr. Adams, some of our modern commanders have fallen into the great mistake of supposing that upon the breaking out of the war of this ac- curs!r.^ed, most detestable rebellion, that the law of war, as ap- plicah;^le to an invasion by us of a foreign country, is trans- planteovi ^nd applicable here wdthin our own territory. Under this idea* Qj^e of them has collated from some military treatise a long strfy^g ^f r^^ies, deduced from that law, and attempts, by his mere lAiilitary order, to apply them to all the citizens of Missouri; ^iVd among the rest he proclaims them to be under the comprehe\,-^gjyQ ^^\q ^f martial law, be that what it may. THE LAW OF WAR. 209 What it is, under his own Latitudinous interpretation, he has given repeated illustrations. He arrests, incarcerates, or ban- ishes from the State whoever he pleases. He suppresses news- papers at pleasure, and has placed all published in the State, under military surveillance, directing a copy of each emission to be sent to head-quarters, under the penalty of suppression. He makes out a proscription list of three hundred of the men and women of St. Louis, who he suspects of disloyalty ; appoints three or five persons as a board, to select sixty fi-om that list upon w^hom an assessment of ten thousand dollars is to be levied, in proportion to their respective degrees of suspicious- ness and ability to bear the burthen. If any of the sixty claim to be loyal, and fail to prove their loyalty to the satisfaction of the board, he or she is to be assessed ten per cent additional. If any fail for a week to pay the assessment, they incur an additional penalty of twenty-five per cent. If any resist the lev}', they are to be dealt with by a military commission. The money thus raised to be applied to the relief of such Union people as had been driven from their homes by the rebels. 'No case of actual resistance occurring, we are left to conjecture how an offender would be dealt with by his military commis- sion. But one of the proscribed sought protection from the law, by suing out a writ of replevin for his goods. He was immediately seized and banished from the State, with a very significant intimation that if he dared return, he would be shot. The president and professors of a college, the directors of a commercial library and of a chamber of commerce, are to be removed and others appointed. This amiable General, at the inauguration of his own dicta- torship over the people of Missouri, was a stranger in St. Louis, who could have known but little of its inhabitants, he having been but recently picked up somewhere in California and put in charge of that military department ; and consequently, in making out his proscription list, must have been wholly in- debted to that exemplary class so loved and admired every- where, the class of spies and informers. Those of them to be found in St. Louis were peculiarly trustworthy, from the no- torious fact, that none of our other cities have ever been near 2T 210 THE LAW OF WAR. SO much afflicted witli those virulent party strifes which en- gender such long enduring, bitter personal animosities. Whence the power for these acts ? How degrading the sur- mise, that national necessity compels resort to such petty, des- picable tyranny ! Is this, too, part of the law of war, of a great, imperative, overruling State necessity which throws aside the Constitution and lets in the arbitrary will of a military com- mander as the supreme law of the land. His intelligent coun- trymen will laugh at his ridiculous folly, but thc}'- cannot fail to pay the extorted tribute of admiration for his super-super- lative impudence. Can it be that he is so ignorant as not to know that his sales of property will be treated by the courts mth nothing but contempt, except so far as to lix personal responsibility upon himself and his subordinates ? If not, then how does he escape the imputation of an attempted swindle upon the confiding ignorant who may make purchases at his sales. He may disregard such imputation, and trust to the present Congress for indemnity against his personal liability. But some one should tell him that the personal responsibility wdll come hereafter, when the present ruling party may not have the majority in Congress ; that party majorities are pre- carious things, and that any new party coming in upon the overthrow of that now dominant would let him rot in jail, rather than appropriate a dollar toward relieving him from the effects of his atrocious impudence and folly. The beneficent influence of military rule, and the necessity for its interposition as a power above law and Constitution, may be further illustrated by the opposite fates of Missouri and Kentucky under the national troubles. Both were impelled by every motive of interest, patriotism, and love for both sec- tions, to keep out of the war as long as possible, in order that they might perform the office of mediators in bringing about peace and restoration of the Union. Missouri, with a larger population, had only half as many slaves as Kentucky, and being clasped on three of her sides by free States she had a decidedly stronger interest in preserving the Union than Ken- tucky. The votes of their people proved that they thought so. Only two-thirds of the voters of Kentucky voted a decided pre- dilection in favor of maintaining the Union, whilst three-fourths T n E LAW OF AV A R . 211 of those of ^Missouri voted in tliat Avay. Kentuek}' has been treated with kindness and conciliation ; no martial law, no militaiy oppression, but slight abuse even of military power. So soon as she was compelled to take sides in the "war, she frankly, cordially, ranged herself on the side of the Govern- ment ; and though a fourth of her territory was under the domi- nation of invading rebels, has sent more volunteers into the field than any other State in proportion to her whole popula- tion. Under some malign, misguiding influence operating upon the Administration, Missouri was treated very differently. With- out going into particulars, sufiice it to say that she was treated with rigor. "Whatever benefit is derivable from the application of the law of war, or martial law, was fully tested. The result w^e all know. Thousands of atrocious murders perpetrated on both sides, and at least one-third of the State desolated of both population and property ; whilst in Kentucky there has been but few murders, and comparatively veiy little destruction of private property. Wliat amount of volunteers Missouri has sent to aid the Government the writer's information does not enable him to state ; but it is notorious that, first and last, at least fifty thousand of her sons have turned out in aid of the rebellion, or in home resistance to what was deemed unconsti- tutional oppression. Whilst, for the rest of this war, it will require full twenty thousand men in Missouri to keep her in subjection, the Government need not have a man in Kentucky to keep her in loyalty. The opposite results from these two opposite courses of policy must, to say the least, forever leave it in grave doubt whether in this country it w^ill aid, or rather, whether it will not preju- dice the Government's efiiciency by resorting to unconstitu- tional measures of coercion. An illustration can be given which will serve to make New Englanders at least appreciate the beauties of martial law\ General Jackson said in a letter, and frequently asseverated in conversation, that he would have hung the leaders of the Hart- ford Convention if he had been commander of the military district in which it sat. It was notorious, or at least it w^as generally believed, that the purpose of that convention was to bring about the secession of New England from the Union. •212 THE LAW OF WAR. So prevalent was this belief, tliat if GeneralJacksoii had actually hung those leaders, under his idea of his military power, or under martial law, a large majority of the inconsiderate part of the nation would have applauded the act. "What would have heen the consequence ? "Would that have silenced the opposition in New England ? So far from that, it would have been the sig- nal for a unanimous revolt that would have permanently carried New England out of the Union. It would have furnished a justification or apology for a revolt and secession which other- wise would have been without just cause or plausible excuse. Arbitrary, despotic measures can never be politic measures to use against Americans for bringing them under obedience to the law, especially if those measures are tainted with ille- gality or usurpation. The exercise of usurped despotic power over an enlightened American agonizes every fibre of his moral sensorium. There is nothing he holds in greater abhorrence. The celebrated Edmund Burke, in his memorable denunciation of arbitrary power, declared that the people themselves could not, even by their own voluntary compact, be rightfully sub- jected to arbitrary power — that such a compact would be void. The people of Kentucky fully adopted this sentiment, and gave it a sort of consecration by the following clause of their Con- stitution: '■'■That absolute, arbitrary poioer over the lives, liberty, and property of freemen exists nowhere in a republic — not even in the largest majority.'^ Note. — Since the foregoing was written there has been published, in the Boston Law Reporter, extracts from the diplomatic correspondence of Mr. Adams, whilst Minister at London and Secretary of State, which entirely re- fute the inconsiderate dogma of his speech. In his letter of August 22d, 1815, he says he told Lord Castelreagh, in a con- versation concerning the restitution clause in the treaty of Ghent: " Our ob- ject was the restoration of all property which, by the usages of war among civilized nations, ought not to have been taken. All private property on shore was of that description ; it was entitled, by the laws of war, to exemption from capture — slaves were private property." * * * " It was true, proclamations inviting slaves to desert from their masters had been issued by British officers ; we believed them deviations from the usages of war ; we believed that the British Government itself would, when the hostile passions arising from the state of war should subside, consider them in the same light. He manifested no dis- satisfaction at these remarks, nor did he attempt to justify the proclamation." In his letter of July 5th, 1820, to our Minister at St. Petersburg, he says: ABOLITION PROCLAMATION. 213 "Admiral Cochrane had no lawful authority to give freedom to the slaves belonging to the citizens of the United States. The recognition of them by Great Britain in the treaty as property, is a complete disclaimer of the right to destroy that property by making them free. Any engagement with them contracted to that effect was, in relation to the owners of the property, unlaw- ful, and could not divest the owners of their property." In his letter of July 7th, 1820, to our Minister at London, he says: "The principle is, that the emancipation of enemy's slaves is not among the acts of legitimate war, — as relates to the owners, it is a destruction of private property, nowhere warranted by the usages of war." In his letter of October 18th, 1820, to our Minister at St. Petersburg, speaking of the claim to emancipate slaves as a legitimate right of war, he says: " No such right is acknowledged as a law of war by writers who admit any limita- tion. The right of putting to death all prisoners in cold blood, and without special cause, might as well be pretended to be a law of war, or the right to use poisoned weapons, or to assassinate." Respect for the memory of so eminent a citizen precludes all harsh comment upon this gross inconsistency. It will suffice to quote the following recent appropriate comment by a talented citizen of his own State: "If at a later period of his life, amid the excitements of a heated personal debate, he ex- pressed opinions somewhat at variance with those of his diplomatic argument of this question, it should not be forgotten that in this instance he was speak- ing with all the responsibility of a minister of State, while in that he was defending himself against a parliamentary attack of unexampled bitterness." :n'o. n. ABOLITION PROCLAMATION. Wliy the President urill iwt enforce it. October 25, 1862. 1. It is an attempted usurpation of a power having no semblance of justification under the Constitution. 2. It is a practical application of that pernicious higher law heresy which, in effect, denies the nation the right or com- petency to self-government, by denying its right to restrain the power of its official servants. 3. It would be succumbing to the dictation of that fiinatic faction, who have been so largely instrumental in producing the calamity under which the nation now suffers, and of whose leaders it is the public boast that they abhor the Constitution, and that, for more than twenty years, they have tried to destroy 214 ABOLITION PKOCLAMATION. tlie Union — a faction who, if not the irresponsible victims of monomania, are the victims of a ruthless, vindictive hate toward the people of the South, which, if glutted through this policy, will render our country the abhorrence of all Christendom, as they themselves are the opprobrium of hu- man nature. 4. It is a direct incentive, a certain promoter of slave in- surrection — servile war, resulting in the devastation of the population and property of eleven States — whilst accompanied by all the horrors of indiscriminate massacre of the helpless whites, with the probable destruction of the larger part of the innocent, heretofore unoffending, blacks. 5. It would be a gross violation of one of the plainest of the President's sworn duties under the Constitution, which so far from permitting him to promote, makes it his imperative duty to suppress, such insurrections. 6. It is of the nature of such insurrections rapidly to prop- agate from county to county, from State to State, and neces- sarily to involve the Border Slave States in the mischief, in the horrors of that terrible calamity so strongly depicted within the last few years by that distinguished ISTorthern statesman, Edward Everett. 7. It would violate that principle of the law of nations, of the law of civilized warfare, inculcated by our Declaration of Independence, to which our nation was fully committed during the administrations of Madison and Monroe, by the diplomatic correspondence of that eminent legist John Quincy Adams, w^ho pronounced the inciting such insurrections as indefensi- ble " as the use of poisoned weapons, or the cold-blood killing of prisoners." 8. It would inflict an indelible stain on our national cha- racter. 9. It would intensify that sectional hate, introduced and promoted by abolitionists and fire-eaters, the bitter effects of which our Government will suffer in the long future, like what the British Government has felt for centuries from the hate of the Irish people. 10. It would destroy that bountiful market, more than two hundred millions annually, which has so richly rewarded the ABOLITION PROCLAMATION. 215 agricultural, manufacturing, and commercial industry of the Korth, and deprive tlie South of the ability to sustain a full share of the enormous burden of our national debt. 11. It would embitter and prolong the war, preclude all chance of voluntary restoration, and so far justify the South in the resistance of despair, as to excite in its behalf the sym- pathies of all Christendom. 12. It would be a betrayal of those reiterated pledges of the Republican party, in and out of Congress, under which the war was commenced. 13. It would be an especial violation of good faith toward the Border States, who went into the war confiding in those pledges. 14. Its policy cannot be carried out whilst the good people of the I^orth retain any sense of that mutual affection which it is fondly hoped they reciprocate with their brethren of the Border States. 15. It will, when received in connection with the declara- tion of martial law throughout the Union, encourage by ex- ample the erection of that military dictatorship which consid- erate men are everywhere foreboding as the dreadful outcome of the war, and which a distinguished Republican leader has claimed for himself and his fanatic colleao;ues in Cons-ress the rightful power to establish, and thereby supersede the Presi- dent. 16. It would be in disregard, in flagrant contempt, of that national will so distinctly manifested in the result of the recent elections ; those elections, manifesting as they do, a popular determination that the South shall not be ruthlessly destroyed under the pretext of restoring it to the Union, nor the Consti- tution destroyed under the pretext of its preservation ; and that the war, whilst prosecuted with all proper vigor for suppress- ing the rebellion, yet it must be under and not over the Con- stitution — leaving inviolate free speech, free press, free ballot, freedom from arbitrary imprisonment, and all other muniments of civil liberty'. The war against the rebels is sufficiently arduous without the President suffering himself to be dictated to by a contemptible minority into superadding a war against the public sentiment of the ITorth. 216 A EEVIEW OF THE ARGUMENT, ETC. CHAPTER XV. August, 1861. A REVIEW OF THE ARGUMENT OF PRESIDENT LINCOLN AND ATTORNEY-GENERAL BATES, IN FAVOR OF PRES- IDENTIAL POWER TO SUSPEND THE PRIVILEGE OP THE WRIT OF HABEAS CORPUS. " We are in the midst of strong agitations, and are surrounded by dangers to our institutions and Government. The imprisoned vrinds are let loose. The East, the West, the North, and the stormy South, all combine to throw the whole ocean into commotion, to toss its billows to the skies, and disclose its profoundest depths. I speak for the preservation of the Union. I speak out of a solicitous and anxious heart, for the restoration to the country of that quiet and harmony which make the blessings of this Union so rich and so dear to us all. If I can do anything, however little, for the promotion of this end, I shall have accomplished aU that I expect." — Webster. It may be necessary, with those to whom the writer is not personally known, to premise, that he claims to be a thorough and devoted Unionist. He has manifested his right to make that claim by having, during the last five years, written and published more, probably, than any other man, to arouse the nation to a perception of the proximate danger to the Union from the treasonable machinations of secessionists and aboli- tionists. For all that time he has been constantly predicting the present state of national affairs. He has assiduously assaulted the secession heresy with argument and denunciation. He has done what he could to portray the inestimable value of the Union, and the endless, numberless evils of its dissolution. Could there be such a thing as a dictatorship, he should deem its power rightly employed in decimating leading secessionists and abolitionists, in decimating the members of secession con- ventions, and especially in decimating the secession members of the Virginia Convention, the Tennessee and Missouri Le- gislatures, who so signally betrayed popular trust. A REVIEW OF THE ARGUMENT, ETC. 21.7 He believes the present civil war will be long protracted ; that we are marcliing witli rapid strides to that military des- potism predicted for us by the fathers of the Republic ; that the preservation of the Constitution, with those principles of civil liberty which it consecrates and secures, is the very highest obligation of patriotism, far above the mere preservation of the Union ; that the entire destruction of the Constitution and civil liberty is a price the nation cannot afford to pay for preserving the Union, even if it were not absurd to suppose that the pre- servation of the one requires the destruction of the other ; that it is a gross calumny on the structure of our Government, to charge that it is too weak to put down the present rebellion ; and that if it cannot be put down with an army of five hundred thousand men, and a large nav^y, without trampling on the Constitution, it will be because of the incompetency of the President and his Cabinet, and not from any fault in the struc- ture of the Government. With these views, the writer means perseveringly to use his very humble efforts to stay the march to despotism, and earnestly entreats the co-operation of the thousands of far abler and younger men scattered through the country. The opinions, as to principles now to be vindicated, were all matured and published near twenty years ago. President Lincoln, in his message, avows that he has " au- thorized the commanding General, in proper cases, according to his discretion, to suspend the writ of habeas corpus; or, in other words, to arrest and detain, without resort to the ordi- nary process and forms of law, such individuals as he might deem dangerous to the public safety." After a very brief discussion, of his power to do this, he excuses the not giving a more extended argument, because one from the Attorney-general will be presented to Congress. He thus adopts the latter, and makes it his own. It is, no doubt, the result of full consultation between them, and also with the Cabinet. The President is, to all intents, as fully re- sponsible for the argument as the Attorney-general himself. The matter will be so treated. The argument endeavors to prove the President's power so to suspend the privilege of the writ, so to order sucli arrests, and that in so doing he is not controllable by the judiciary; 28 218 A REVIEAV OF THE ARGUMENT, ETC. and perhaps, also, its true meaning is, that he is not controlla- ble by Congress either. In other words, it seems to be con- tended, that in the exercise of his executive functions, for the suppression of rebellion, at least, if not for all other pui-poses, he acts by his own arbitrary discretion, free from the control of Congress and the judiciary — either, or both. The preten- sion to this power is not confined, either by argument or the President's acts, to such States or districts as may have been proclaimed to be in insurrection ; but the power operates all over the Union, and may be applied equally to a citizen of and in Maine, as to an inhabitant of a proclaimed State. This is a high pretension, now for the first time asserted in behalf of a President. In the existing state of things, and in view of what has already been done, it is a pretension of the most momentous importance. It places the personal liberty of every man in this nation within his arbitrary discretion. He may arrest any one, without justifiable cause, transport him where he pleases, incarcerate him during the continuance of this war of probably many years' duration, subjecting him during the while to such deprivation, hardship, and humilia- tion, as the President may think proper to inflict. For all this the citizen is to have no redress. Against such atrocious, tyrannical outrage the law of his country can aiford him no redress. Such startling innovation upon what has heretofore been considered the well-settled prmciples of our Government, such thorough destruction of the most cherished right of freemen, the nation will naturally expect the President and Attorney-gen- eral to sustain by some show of precedent, some judicial deci- sion, or at least the opinion of some lawyer or statesman. But, reasonable as such expectation is, it has not been complied with. They adduce no authority — none whatever in their behalf — not a single precedent, decision, or opinion. The few cases they do cite, having not the slightest bearing in their favor, their citation only serves to prove, that, after careful search, no semblance of an authority can be found. (For a synopsis of the cited cases, see Appendix D.) A reference to the synopsis will show that they stand ex- posed, for impudently attempting the most daring usurpation A REVIEW OF THE ARGUMENT, ETC. 219 of tyrannical power, and a most pernicious innovation on the structure of the Government, without a precedent or an au- thority to sustain them. Their claim rests exclusively upon their reasoning, which will he found as little reliable as their pretended authorities. These tremendous powders are vindicated by various propo- sitions — some merely assumed, wdiile others are attempted to be proved. They wall be considered in the following order : 1. The ex-officio fower to arrest. 2. The exemption from control. 3. The constitutional prohibitions. The argument, by way of introduction, gives the following fair view of the fundamental structure of the Government, which is most cheerfully adopted as a starting point for this review. Every lawyer wnll concur, and would use similar lan- guage, in any argument for keeping the President within con- stitutional limits. How it subserves an argument, whose main purpose is to free him from all restraint, is not so obvious. " In England it has grown into an axiom, that the Parlia- ment is omnipotent. For all the ends of government the Par- liament is the nation. But, in this country, it has been care- fully provided otherwise. * * * In breaking the ties w^ith the British empire, complaints w^ere levelled chiefly at the King^ not the Parliament^ nor the people. In the formation of our national Government, our fathers seem to have been actuated by special dread of the unity of power, and, in framing the Constitution, they preferred taking the risk of leaving some good undone for lack of power in the agent, rather than arm any gov- ernmental ofiicer with such powers for evil as are implied in the dictatorial charge, to ' see that no damage comes to the Com- monwealth.' "Hence they adopted the plan of checks and balances, form- ing separate departments of government, giving each depart- ment separate and limited powers. " Our Government, indeed, as a whole, is not vested with sovereignty, and does not possess all the powers of the nation. It has no poivers hut such as are granted hy the Constitution, and many powers are expressly withheld. The nation is equal with all other nations, having equal powers, but it has not chosen 220 A KEVIEW OF THE ARGUMENT, ETC. to delegate all its powers to this Government, in any or all its departments." That is, it has not delegated all its legislative or judicial power ; and, having " a special dread of the unity of power," it has been very careful not to delegate all its executive power to any single functionary. 1. The Ex-officio Power of Arrest. Each department being confined to " granted and limited " powers, according to his full concession, the obvious first duty of Messrs. Lincoln and Bates was to show a grant of the power of arrest to the President, and how it is limited. An unlimited grant would not fulfil the terms of the concession. But this they do not do, nor pretend to do. They show neither a lim- ited, or unlimited grant of such power: neither can it be done. There is not a word in the Constitution to that efi'ect. In England the power is a prerogative of the Crown. But we have no prerogative powers in this country. In England even, it is an exceptional power of infrequent use, the power in practice being almost always confined to the judiciary. Our ideas of government, being so essentially derived from the principles and practice of that of England, the framers of the Constitution must have viewed the power of arrest as properly a judicial and not an executive function, and that consequently the whole power would go to the judiciary, in the absence of any express declaration to the contrary. Kot being properly an executive power, they knew that it would not pass under any general grant of executive power ; and if it had been de- sired or intended that the President should participate in its exercise, they would have been very careful to say so, and point out distinctly how far he should participate. This not being done, there is not even the semblance of a fair pretext for his participation to any extent whatever. The uniform usage of our Governments, both Federal and State, has been in strict conformity with this view. TVe know that Mr. Lincoln is the first President who ever attempted the exercise of such a power. It is confidently believed that no instance can be adduced of any such attempt by the Governor of any State, unless specially and explicitly so authorized by A KEVIEW OF THE ARGUMENT, ETC. 221 lavT. It is also believed that there lias not been an instance of Bucli attempt, with or without law, for it is so contraiy to all our American ideas of proper government, that it is not credi- ble any State Convention or Legislature should have been fool- ish enough to confer such a power on a Governor. This is a high pretension, now for the first time asserted in behalf of the President. The attempted innovation should be well fortified with precedent or analogy. E'either is adduced. We are not even furnished with an attempted argument in its behalf. It rests entirely upon bold, impudent assumption. It is true, that, after General "Wilkinson, under circumstances of supposed State necessity of great urgency, had made arbi- trary arrests of suspected accomplices of Burr, President Jef- ferson approved his act, not by reason of its legality, but in despite its admitted illegality. The Supreme Court condemned the arrests as illegal, notwithstanding the Presidential ratifica- tion, and Congress persistently refused to indemnify Wilkinson for the damages to which he was made liable, at the suit of the persons arrested. The bill, which, about that time, at the instance of Jefi"er- son, passed the Senate, for suspending the writ of habeas corpus, and which was indignantly rejected by the House of Represen- tatives, contained express grant of power to the President to make arrests. This bill was, no doubt, drafted under advise- ment with Jefierson and his Cabinet, and is full proof that neither they nor the Senate thought the President, ex-officio, possessed any such power, or that he would possess it after the suspension of the writ, without an express Congressional grant. It is true, also, that General Jackson made sundry arbitrary arrests at l^ew Orleans, under his pretended martial laAv. But he had been told in advance by two most distinguished law- yers — Edward Livingston and Abner L. Duncan — who were his friends, and acted as his aids, that he had no power to de- clare martial law. An intelligent court-martial, of his own selection, decided his martial law to be a mere nullity, and gave him no power over citizens not attached to the army or militia. The District Court (IT. S.) afterward decided in the same way, as did also a very able Appellate Court of Louisiana, after full investigation and enlightened discussion. 222 A REVIEW OF THE ARGUMENT, ETC. It is true, Congress, some twenty years afterward, refunded the fine imposed upon him by the District Court, but, in so doing, special care was taken not to use one word, either in the preamble or body of the act, in justification of his martial law, or in censure of the judge who imposed the fine. On the contrary, a Committee of the Senate, of which Mr. Berrien was chairman, and another of the House, of which the present Sen- ator Bearce, from Maryland, was chairman, each made a report denouncing martial law as wholly inadmissible in " this free Republic." It is not contended that a military commander may not make prisoners of rebels found resisting, with arms in their hands, and all others proximately present, aiding and assisting with- out arms, or found in illegal gathering, to aid rebellion, "War- fare against rebellion may, no doubt, be carried on according to the civilized usages of war among hostile nations ; and among the incidents thereto, is the making and detaining of prisoners to be handed over to the civil authorities for trial and punish- ment. But the arrest of citizens not engaged in hostilities is a different thing, and must be left to the civil authorities by due process of law. The one is a thing of absolute, unavoid- able necessit}^, fulfilling the very purpose for which the mili- tary is called in aid of the civil authority, and is in accordance with usage and precedent, whereas the other is not a matter of absolute necessity, is contrar^^ to usage and precedent, and should be left to the adequate judicial corps appointed by law for that purpose. If this corps is not sufiiciently numerous to answer the need of such an occasion as the present, the proper remedy is by a temporary increase of its members. The true theory of the whole matter — the constitutional theory — is, that a President, in putting down a rebellion, per- forms little, if anything, more than the functions of a sheriff at the head of a posse comitatus. The army and navy, when so employed, are, in a legal sense, only a larger and more power- ful sort of posse. This was the view taken by the Government of Massachusetts during Shay's rebellion, and by "Washington during the Pennsylvania insurrection. Washington told his army " they should not consider themselves as judges or exe- cutioners of the laws, but as employed to support the proper A REVIEW OF THE xVRGUMENT, ETC. 223 autlioritics in tlie execiitiou of them." In other words, that he and his army were merely acting in aid of the proper officers of the law. Lord Hardwicke said : " The military act on occa- sions of resistance to law — not qua military, but simply in aid of and in obedience to the civil power, which calls them in." 2. The Exemption from Control. Let the power of arrest be conceded to the President, still the power in his hands, as in that of any other officer, must, according to theory and uniform practice, be subject to the supervision and control of the judiciary. It is so in England. Neither the Crown, nor either House of Parliament, enjoys any exemption. The world has never known a prouder politi- cal body, nor one more jealously vigilant in the preservation of its power and prerogative, than the House of Commons; ^'•et it has been compelled, like the Crown and the House of Lords, willingly or unwillingly, to submit to the supervision and control of its arrests and imprisonments. The same is true in this country, as to both Houses of Congress, as has been exemplified in various instances. Indeed, if both Houses, with the approval of the President, should so far forget them- selves as to unanimously order the arbitrary arrest and im- prisonment of the humblest citizen, no la%v;)'er doubts the competency of the judiciary to inquire into the legality of the imprisonment, and discharge the prisoner. From the beginning, our Federal and State Judiciary have exercised the power of deciding upon the constitutionality of the acts of all officials. This has been done, not merely with the uniform acquiescence of all the departments of both sets of Government, but with the cordial, unanimous approval of the whole nation. It has become the ingrained opinion, the heart-cherished belief of every American, as it is of every en- lightened Englishman, that the judiciary are the conservators of his dearest personal rights as a freeman. His belief es- pecially is, that so long as we have an honest, independent judiciary, he will be exempt from the despotic, tyrannical power of arbitrary arrest and imprisonment — at least, until the Legislature, in its wisdom, shall temporarily suspend the writ of habeas corpus. His belief is, that whenever the Legis- 224 A REVIEW OF THE ARGUMENT, ETC. lature does that, and confers upontlie Executive the power of civil arrest, it will accompany the grant with such safeguards and limitations as not unnecessarily to trench upon the liberty of worthy citizens, and not leave them farther than cannot be avoided, to the arbitrary caprice and malice of the President and his subordinates. But now we are told that we have to unlearn all this ; that we have one functionary in this free Republic who is above control, who is not to be controlled by a law which controls Kings, Lords, and Commons in England, Congresses and Legislatures in America; that our President Lincoln is far above such control ; that it would be derogatory to his execu- tive independence to submit to such control. "Upon what meat does this our magnificent Csesar feed, that he is grown so great, so got the start of the majestic world ?" (Appendix B.) If the President, when acting in conjunction with Congress, is under judicial control as to the constitutionality of his acts, surely every principal of analogy and policy require, he should also be under such control when acting separately upon his mere discretion and authority. If not, then there is some- thing in the Constitution which gives him that exemption. Where is that clause, phrase, or word ? Messrs. Lincoln and Bates say, it is to be found in the clause — " The executive power shall be vested in a President." It does not say free from control, any more than it says the legislative power vested in Congress shall be uncontrolled. If, the Convention had contemplated vesting uncontrollable power, in either of the two departments, it would have rather been in that highest of all the departments, which was to wield the great legisla- tive power, as the representatives of the people and the States, composed, too, of such numbers as to propitiate popular con- fidence, rather than that other department to be filled by a single individual, and of whose powers, according to the ad- mission of Messrs. Lincoln and Bates, the framers of the Constitution had such a " special dread." "The executive power shall be vested," etc. What power? Not all executive power of the nation — this, they themselves admit was not intended. It meant such as was granted in the Constitution, or which might be created by law. Because, it \ REVIEW OF T U E ARGUMENT, ETC. 22o was impracticable to specify or enumerate all executive powers, because most of them would depend upon tlie creation, regu- lation, and consequent control of Congress — their specifica- tion or enumeration was not attempted — and not because of any special trust or confidence in the ofiicer. "Where is the law granting this power of arbitrary arrest ? There is none such ; there can be none such, for it would be a plain violation of the Constitution. Unless, indeed, they can make good their bold, novel position, that the power is a necessary, indis- pensable incident to executive power, of which the President cannot be deprived, and in whose exercise he cannot be con- trolled by Congress or the judicary. It is very doubtful whether the President has any incidental or inferential power, properly so called. Or, in other words, whether all his powers must not come by express grant. So it was held by Calhoun, and other Senators, in the great de- bate on Jackson's protest. (See Appendix A.) Indeed this seems fully admitted by Messrs. Lincoln and Bates, in that part of their argument where they say : " Our Government as a whole, even, is not vested with sovereignty, and does not possess all the powers of the nation. It has no powers but such as are granted by the Constitution. The nation has not chosen to delegate all its poAvers to this Government, in any or all its branches." When, therefore, a power is claimed for either department, a specific grant must be shown. The im- plied or constructive powers are amply and well provided for by the final clause of the section granting 230wers to Congress: " To make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the Government of the United States, or any department or officer thereof.'' There is no such clause as to the judiciary or Executive ; neither of them is vested with all such other power as may be necessary or proper for carrying into execution the powers granted to them. As to all auxiliary powers, they must wait for, and arc wholly dependent upon, the action of Congress. There is scarce a conceivable thing, beyond a call of Congress and the reception of Ambassadors, that the President can do without the previous sanction of Congress. The clauses, saying — 29 226 A REVIEW OF THE ARGUMENT, ETC. " The executive power shall be vested in a President, and the judicial power in one Supreme Court," etc., mean that beyond the express grants contained in the Constitution, whenever Congress requires an executive or judicial function to be per- formed, the power therefor shall be conferred by Congress on those departments respectively. Such has been the uniform construction and practice. Messrs. Lincoln and Bates claim that the President can, at his mere discretion, arrest any man or woman in the nation, and transport him or her to a remote quarter, to be kept in secret incarceration during the rebellion, though it should last many long years. This, too, he has actu- ally done, by many secret arrests in unproclaimed States. In place of the open, direct, manly, day-light proceeding of Eng- land and America, he is instituting the lettres de cachet and bastiles of France, with the secret, midnight searches and seizures of the Spanish Inquisition. This power they claim for him, because, they say, he is the sole, uncontrollable judge of the manner in which he shall exercise his power in putting down rebellion. That is, because he has the army, the nav)^, and the militia under his control, he may use the power they afford to make the arrests and imprisonment, that being, in his opinion, a proper aid toward suppressing the rebellion. If the unarmed private citizens he chooses to suspect, and ar- rest become too numerous and expensive to keep, without too great a burthen upon the treasury, why may he not cut their throats ? Why may he not take one man's property and give it to another ? Why not raise money through forced loans ? "Why not destroy or confiscate the property of the suspected ? These, in his opinion, would all be most efficient aids in sup- pressing the rebellion. The army and the navy furnish him ample power to use such aids. Aye, but, they will say, he is too good a man so to abuse his discretion. But does not the enormities which may be committed under the power they claim, prove that he can have no such power. It never could have been the intention to entrust such dis- cretion to any man. It is contrary to all analogy to derive such power by implication. His plan may be a very efficient one ; the Constitution and Congress may be very unwise in not authorizing him to pursue that plan, but its excellence aifords A REVIEW OF THE A R G U .M E N T , ETC. 22 1 no reason for liis usurping tlie riglit to pursue it. From the fact of having the ph^-sical power under his command to en- force the plan, he cannot infer a right so to use that power. He had as well contend, that because God has given him the physical power to murder, therefore he is at liberty to commit murder. The argument is, that it is the " plain, peculiar duty of the President to put down rebellion." They speak of it as an ex- officio duty, in the performance of which he has a right to em- ploy, at his discretion, any power under his control. The army and navy were always under his control. Then why was it necessary, b}' the act of 1807, specially to authorize him to use them in putting down rebellion ? The truth is, he could not even aid in putting down rebellion, by reason merely of any ex-officio power. Hence the acts of Congress expressl}- giving him the power. So far from its being his " plain, peculiar duty to put down rebellion," the duty is peculiar, if to any one, to Con- gress, with whom the power rests, and from whom the Presi- dent's duty and power in the matter altogether proceeds. The argument says : " The insurrection is purely political. Its object is to destroy the political Government of this nation, and to establish another political Government upon its ruins. The President is eminently and exclusively/ political in all his principal functions. As the political chief of the nation, the Constitution charges him with its preservation, protection, arid de- fence. In that character he arrests and holds in custody those whom, in the exercise of his political discretion, he believes to be friends of, and accomplices in, the armed insurrection. He has no judicial powers. The judicial department has no po- litical powers, and therefore no court or judge can take cog- nizance of the political acts of the President, or undertake to revise or reverse his political decision." In another part of the argument it is said: "All the other officers are required to swear only ' to support this Constitu- tion,' while the President must swear 'to preserve, protect, and defend it,' which implies the poiver to perform, what he is required in so solemn a manner to undertake. Then follows the broad, compendious injunction, to 'take care that the laws be faithfully executed.' This injunction, embracing as it does, 228 A REVIEW OF THE A R G U il E ^T T , ETC. all the laws, Constitution, treaties, statutes, is addressed to tlio President alone, and not to any other department or officer. This constitutes him in a peculiar manner, and above all other officers, the guardian of the Constitution — its preserver, pro- tector, and defender." This is not the first time that a great to-do has been made by a President over the difference between the form of his official oath, and that of other officers, though there is in fact no substantial difference between them, the oath to support the Constitution being every way equivalent to one to preserve, protect, and defend it ; for it cannot be properly supported un- less it is preserved, protected, and defended. The difference was not intended to indicate, nor was it made because of any special trust in the President as a safe guardian, but from an opposite reason. It was because of that " special dread " which was felt, as admitted, of Presidential power, that an apparently somewhat more stringent oath was prescribed for him than for the other officers. It was merely intended to make his promise more emphatic. The nation must have partaken very little of the views of the Convention, if the latter really looked to him as the peculiar guardian of the Constitution, for nothing can be better known, than that from the very commencement the nation looked upon the judiciary as its peculiar guardian, and has so regarded them ever since. The first attempt to use the oath in this way was made by Jackson, in his famous protest, to screen himself from censure for his abuse of power in the removal of the deposits. The language used gave some plausibility to the idea, that he was attempting to derive power from the words of the oath: and it was so charged, until his leading friends in the Senate dis- claimed for him any such intention. Before the disclaimer came. Clay spoke of the imputed attempt as follows : " The President begins and ends the protest with a resort to his official oath as a source of power which no man before ever regarded as granting power. What is the oath ? He is ' to preserve, protect, and defend the Constitution.' Taken in their largest, most extensive sense, and regarding the oath as a grant of power, these expressions may be interpreted to create a right and duty, on the part of the President, to preserve and A REVIEW OF THE ARGUMENT, ETC. 229 protect the Constitution, as lie understands it, against all vio- lations by whomsoever attempted. If the Supreme Court, State Legislatures, or Governors, or even Congress, should expound the Constitution contrary to his sense of its meaning, he may employ all the means at his command, military and civil, to prevent the threatened violation. The consequence would be, that we should have but one expounder of the Con- stitution in the whole Government, and but one will control- ling all its operations. N'ever before did any man regard the official oath as containing a grant of power." i^Tow we have two men, Messrs. Lincoln and Bates, who do not cause it to be merely suspected that they are claiming power by virtue of the oath, but boldly, unblushingly, undis- guisedly claim the oath as a grant of enormous, overmastering power. They say, " the President must swear to preserve, pro- tect, and defend the Constitution, which implies the power to per- form what he is required in so solemn a manner to undertake." Thus, what the intelligent friends of Jackson in the Senate were compelled to shrink from and disavow as an indefensible folly, these gentlemen have the effrontery distinctly to claim as the grant of power so limitless in extent as to aiford ample foundation for that military dictatorship which, it is suspected, they and others desire to establish over the nation. Dictator- ship over Congress, and all the office-seeking part of the na- tion, his five hundred millions patronage has already given him ; we have yet to see whether his army of five hundred thousand men will give it to him over the balance of the na- tion. The issue is at least doubtful. "Whilst it remains so all true men should struggle while they may, to retard, to prevent the rapid march to an unmitigated tyranny. Messrs. Lincoln and Bates are men of far too much intelli- gence not to know that to claim the oath as a grant of power is the merest absurdity. "When such men resort to such means to gull the million, as to usurpations, they render themselves obnoxious to the strongest suspicion. ISo past reputation for integrity gives any exemption to such suspicion. The posses- sion of great power is new to Mr. Lincoln. Its intoxicating influence is proverbial. He has given no evidence of any de- sire to resist that influence, but in everything betrays that easy 530 A REVIEW OF THE ARGUMENT, ETC. virtue wliicli promptly yields without resistance. His past reputation for integrity, so far from shielding him from suspi- cion, becomes itself suspected. The well-earned reputation for political integrity of a Washington and a Madison all com- bined in a single President, would not, under such circum- stances, shelter him from suspicion. What has this new, untried man, the President of a minority, the mere head of a sectional party, largely fanatical, to shield him ? The nation must look carefully, heedfully to this matter. With a Presi- dent wielding five hundred millions of patronage, controlling five hundred thousand armed men, and claiming and using such enormous, unrestrained power, every patriot should be on the alert. They further tell us : " The insurrection is purely political." "What stuff" is this ? Is not every rebellion equally political ? It may do so to characterize it in common parlance to distin- guish it from a religious rebellion, or a whisky rebellion. But, in a legal sense, there is no such distinction, they, equally with this, being a revolt against the political power of the Govern- ment, and equally requiring that power to put them down. "This insurrection is purely political. Its object is to de- stroy the political Government of the nation." Is not the object and effect equally to destroy the judicial and eveiy other non-political part of the Government ? " The President, as the political chief of the nation, arrests and holds in custody those who, in the exercise of his political discretion he believes to be friends of, and accomplices in, the armed insurrection." ISTot those against whom there is proof to cause belief, but those whom the President chooses to be- lieve, without proof, are accomplices. Are we to imitate the base acts of the French revolution, when men were imprisoned, if not beheaded, because they were suspected of being suspi- cious " The judicial department has no political powers, and there- fore no court or judge can take cognizance of the political acts of the President." This, too, though they say "he is exclu- sively political in all his principal functions." That is, in the discharge of all his ramified duties and manifold powers, the legality of his acts are subject to no judicial test or investiga- A REVIEW OF THE ARGUMENT, ETC. 231 tion. His sic volo, sic jubeo are to stand in lieu of law. If this does not startle up the nation, wide awake, what will ? His dispersing the members of the two Houses of Congress by the bayonets of his armed myrmidons ought not to have any greater effect — indeed, not so much. By the power of patron- age he holds the majority of Congress already in submissive obedience. They are an aid, rather than a hindrance, to any usurpation he may choose to make. The liberties, the prop- erty, not to say the lives of every man and woman of this great nation rest on his discretion ; they can be taken away at his arbitrary will ; they are only enjoyed by his permission. "With a submissive Congress, and an impotent judiciary, what are any man's rights worth ? what guarantee has he for them ? This is no attempt at fictitious alaiTQ, at an improbable, non- presumable state of things. It already exists. Men have been taken from their beds at the dead hour of night, secretly in- carcerated in remote States, and their friends cannot learn even the alleged cause of arrest. These arrests, too, made in States against which there is no proclamation of rebellion, and none properly can be made. Wlien commanded by the nation to produce a prisoner before the Chief Justice and show the cause of his detention, he denies the power of the nation, or which is the same, the power of the law to send such a command. He authorizes his military subordinates to proclaim and en- force martial law over the people of States not proclaimed to be in rebellion. That is, he authorizes those subordinates to substitute their will in place of law, and to govern those peo- ple by their arbitrary will. He directs or permits those subor- dinates to not merely violate the freedom of the press, but actually to suppress entirely the publication of newspapers. These are some only of the initiatory steps — what is to follow no man can tell. In arresting and imprisoning he exercises political power, it is said, and therefore no court or judge can take cognizance of his acts. The House of Representatives has none but political powers, yet when it imprisons a citizen it has to submit to a judicial order for his enfranchisement. If an}'thing can prop- erly be called purely political power, it is the legislative power of Congress. Yet if, by unanimous vote, with the President's 232 A REVIEW OF THE ARGUMENT, ETC. approval, Congress passes an act to arbitrarily imprison or otherwise punish a citizen, the judiciary can take cognizance, is bound to take cognizance, and release the prisoner in des- pite all the dignity and power of Congress. This not only every lawyer, but every tolerably informed citizen well knows. There is, therefore, no myth or virtue in a political power, merely because it is political, to deprive a citizen of his constitutional right to be protected against its unlawful exercise to his in- jury. There are a certain class of executive powers, such as ap- pointing to office, which are purely discretionary, which judges and books of high authority, for the sake of classification, de- nominate, rather inaccurately, political powers. For though all such power may be political, yet all political power is not purely discretionary. The distinction, therefore, is properly between -powers purely discretionary^ as the appointing, the veto, and the treaty-making power, and those which are not. The former are not, whilst the latter are, subject to judicial control without reference to the fact whether the power be political or otherwise. There is another rule, which, though it may not cover the whole ground, is sound and safe as far as it goes. That is, all ministerial, executive acts, so far as they trench upon individual right, are subject to judicial control. According to the theory of our Government, every right must have a remedy for its enforcement, and every wrong a redress. As said by the Supreme Court in Marbury vs. Madison, 1 Cranch, 162 : " The very essence of civil liberty certainly consists in the right of eveiy individual to claim the protection of the laws whenever he receives an injury. One of the first duties of Government is to afford that protection. In Great Britain, the King himself is sued in the respectful form of petition, and he never fails to perform the judgment of the court." " The Government of the United States has been emphati- cally termed a Government of law, and not of men. It will certainly cease to deserve this high appellation, if the laws furnish no remedy for the violation of a legal right." " Is it to be contended that heads of departments are not A REVIEW OF THE ARGUMENT, ETC. 233 answerable to the laws of their country?" * * * "What is there in the exalted station of the officer which shall bar a citizen from asserting, in a court of justice, his legal rights, or shall forbid a court to listen to his claim ? If one of the heads of department commits an illegal act, undercolor of his office, by which an individual sustains injury, it cannot be pretended that his office alone exempts him from being sued or compelled to obey the judgment of the law." Hence the inference, that while the President is merely passive, only failing to exercise an executive power w^hose exercise rests in his discretion, or exercises it without injury to private right, the court can take no cognizance ; but when the power is brought into action, and an individual thereby illegally sustains injury, the courts may give him redress, though the President himself commanded the act to be done. Thus the acts of the President and his subordinates, in the management of soldiers, though a power accompanied with much discretion as to the mode of exercise, yet being minis- terial, if unlawfully used to the injury of a citizen, the courts can give him redress. So where the President, in the exercise of his discretion, as to the mode of managing the military force in putting down a rebellion, chooses to use part of it in the illegal arrest and imprisonment of a citizen, the courts must give relief. This, too, though (as surmised by ISIessrs. Lincoln and Bates) the President should sink the dignity of his office so low, as himself personally to become the catch- pole and jailor. As said by Blackstone, " the law is no respecter of persons ; but in England, for fundamental reasons of State policy, this is taken in subjection to the maxim that the king can do no wrong, and no mandate can be directed personally to him. "We have no such maxim or legal reason why a judicial mandate should not go against him as well as any other officer. But from reasons of comity to a co-ordinate department, and of respect for the exalted station, the courts will refrain from sending such mandate as long and as far as duty will permit. That his station gives him legal exemption from judicial coer- cion is an idle pretence. 'No one knows better than Messrs. Lincoln and Bates, that he can be sued for debt and made to 30 234 A REVIEW OF THE ARGUMENT, ETC. pay it ; that he can be sued for an article of personal property and made to deliver it up from his veiy clutch in his oAvn palace ; that if the law of the District of Columbia allows im- prisonment for debt, he may, under a judgment of the Federal Court there, be incarcerated for its non-payment, with no legal power in the land to release him Avithout payment ; and fur- ther, that in a State Court he can be tried for any crime, and even hung for murder. How perfectly preposterous, then, the pretension, that the legality of an arrest or imprisonment by one of his subordinates, shall not be judicially inquired into because done by his order. This is a most magnificent President we have. He not only denies to the judiciary all control over his official acts, but denies it to Congress also. This, too, though nearly all the executive power he has — much the major part, at least — he derives through Congress, who could repeal it away from him to-morrow. Nor is this all. He claims that he is responsible for his official conduct to the Court of Impeachment alone ; yet, when called upon by the grand inquest, the House of Rep- resentatives, which has the sole power of impeachment, to say why he arrested and imprisons certain citizens, he refuses to answer. He refuses to answer at the nation's command, given through its Avrit of habeas corpus, and refuses to answer at the request of the nation's representatives, or at least those who call themselves such. Verily, if the nation only had real representatives, he would soon be shorn of his lofty preten- sions, his vaulting ambition controlled, and he made to know that no man in tJiis cauntry is above the law. (See "Webster's strictures on the one-man power. Appendix C ; and also what Kent and other judges of the Supreme Court of l!^ew York said as to a military commander's exemption from obedience to the writ of habeas corpus, Appendix D.) Blackstone, 1 Com., 135, cites the statute 16, Car. 1, which says : " If any person be restrained of his liberty by order of any illegal court, or by command of the King's majesty in person, or by warrant of the council board, or any of the priv}^ coun- cil, he shall have a writ of habeas corpus to bring his body be- fore the court, who shall determine whether the cause of his A REVIEW OF THE ARGUMENT, ETC. 235 commitment be just, and do as to justice shall appertain." Upon this he comments as follows : " Of great importance to the public is the preservation of personal liberty ; for if once it were left in the power of any, the highest magistrate to imprison, arbitrarily, whomever he or his officers thought proper, there would soon be an end of all other rights and immunities. Some have thought that unjust attacks even upon life, or property, at the arbitrary will of the magistrate, are less dangerous to the commonwealth than such as are upon the personal liberty of the subject. To bereave a man of life, or by violence to confiscate his estate, without accusation or trial, would be so gross and notorious an act of despotism as must at once convey the alarm of tyranny throughout the whole kingdom : but confinement of the per- son by secretly hurrying him to jail, where his sufferings are unknown or forgotten, is a less public, or less striking, and therefore more dangerous engine of arbitrary government. Yet sometimes, when the State is in real danger, even this may be a necessary measure. But the happiness of our Con- stitution is, that it is not left to the executive power to deter- mine when the danger of the State is so o-reat as to render this measure expedient : for it is the parliament only, or legislative power, that can authorize the Crown, by suspending the habeas corpus act for a short or limited time, to imprison suspected persons without giving anj^ reason for so doing." As before remarked, the suspension in this country gives no such power to the Executive ; because, unlike the King, it has, ex-officio, no such power of arrest ; but, if Congress wishes to do so, it must confer the power on the President, as was attempted by the bill which passed the Senate, and was rejected by the House in 1807. On that occasion, Mr. Dana, a distin- guished member of the House, from Connecticut, a jurist and a statesman, said : " This bill authorizes the arrest of citizens not merely b}' the President, but by any person acting under him. I imagine this to be wholly without precedent. If treason were marcMng to force us from our seats I loould not agree thus to destroy the fundamental principles of the Constitution^ and commit such an act of despotism and pusillanimity.'' Chief Jus- tice Taney has gone a step further than this, and decided, or 236 A REVIEW OF THE ARGUMENT, ETC. at least intimated, in the Merriman case, that Congress can con- fer no power of arrest upon the President. If by " due pro- cess of law" the Constitution means that every prosecution, in all its stages, even the incipient one of arrest, must be con- ducted under judicial authority, then the intimation is clearly right, for nothing is plainer, or better settled, than that Con- gress can confer no judicial power upon the Executive. That such is the true meaning of " due process of law," is inferable from the clause saying, " no warrant shall issue but upon pro- hable cause, supported by oath, and particularly describing the person to be seized. Now, what is probable cause ? and what affidavit will support the allegation of probable cause ? and what is particular description of the person? are all questions to be decided, and would seem by all analogy and precedent to require a judicial decision. Besides, the uniform practice is to that effect. If, then. Congress cannot expressly grant the power, the President cannot possibly have it by any process of construction or intendment ; for all his power, being derived through the acts of Congress, it would be preposterous to con- tend, that, in authorizing him to use the army in putting down rebellion, a power can be implied to use the army in a manner which Congress could not expressly authorize. On the con- trary, he takes the trust on the implied understanding that his discretion, as to the mode of using the power, shall not extend beyond what Congress could authorize, that being manifestly beyond its probable intention, which intention is his impera- tive guide and law. 3. The Constitutional Prohibitions. First among these comes that which says : " The privilege of the writ of habeas corpus shall not be suspended unless when, in case of rebellion or invasion, the public safety may require it." It would be an act no less of presumption than supereroga- tion, for any man to attempt to aid what Chief Justice Taney has said in the Merriman case, to prove that the whole power of suspension is with Congress, exclusively with Congress. His opinion will be cherished not merely as an enduring monu- ment of official fidelity, but as a proud evidence of octogena- A REVIEW OF THE A R C. U M E X T , ETC. 237 riau ability. It will be clierisbed by tlie profession as a liigli, finished specimen of luminous, convincing judicial disquisi- tion. Messrs. Lincoln and Bates have manifested only proper prudence, by shrinking from all attempt to answer what is so unanswerable. They content themselves with a feeble effort to dodge round it. They admit that the power to prohibit the issuing of the ^Tit can only be exercised by Congress, because it is a quasi repeal of a statute, which is legislation. With this admission it is difficult to understand even what they mean by the meta- physical sophistr}' with which they attempt a distinction be- tween the power to issue the writ and the privilege of enjoying its protection. The prohibition was not made for the sake of the judiciary, but for that of the citizen. It is nothing to the judiciary to have the power, but it is all important to the citi- zen that the power should be kept in operation for his benefit. It is immaterial to him how he is deprived of the protection, whether by the Legislature or the Executive. The injury to him is the same. It is incredible, therefore, to common men and mere common sense, that the Legislature should be so carefully prohibited from taking away his protection, whilst the Executive was left free to disregard his right. This the more especially when it is remembered, that it is against ex- ecutive officers that the writ is most generally, indeed almost exclusively, used ; for it is they who most frequently make illegal, arbitrary arrests ; and therefore it is they, in particular, more than all others, against whom he needs protection. They are bold, not to say desperate, who attempt to convict the Con- stitution of such an absurdity — not merely a self-contradic- tion, but a sort of suicidal self-nullification. It will be in vain to attempt to convince the nation, that the makers of that Constitution were such mal-experts, that, whilst carefully pro- hibiting Congress from taking away from the citizen his judi- cial protection against Executive oppression, the Executive itself should be left free to oppress him at pleasure. Congress and the Executive combined can infringe the protection under certain prescribed conditions, yet the Executive alone is left to do it upon his own untrammeled discretion. If he was left free to oppress, why trammel Congress with restriction ? This 238 A REVIEW OF THE ARGUMENT, ETC. is a mere lust of power run stark macl ; so blinded by its eager- ness for usurpation that it cannot see the most palpable ab- surdity. If, according to the concession, the writ must issue, why shall it not be obeyed ? It carries the imperative command of the law. Who shall dare disobey ? Who, in this country, is above the law ? "Who enjoys that dispensing prerogative of suspending or silencing the law, for the attempt to exercise which, an English King lost his head ? If either department, as between the judiciary and the Ex- ecutive, could properly be allowed, by mere intendment, a dis- cretion as to the suspension of the privilege of the writ, it would seem to be rather that department which has its custody and control, than that which is not so trusted, has no control over its issue, and against whom, in ninety cases out of every hundred, it ordinarily does issue. Yet, it is agreed on all hands, that the judiciary has no such suspending power. Until the advent of Messrs. Lincoln and Bates, the opinion was equally unanimous, that the Executive has no such power. They have not adduced, nor can they adduce any respectable legal opinion to the contrary. But yield the President the power of arrest, with the dis- cretion to suspend the privilege of the writ, still, unless he make the arrest in person, he must issue some sort of warrant or order, verbal or written ; and the Constitution says none such " shall issue but upon probable cause, supported by oath, and particularly describing the person to be seized." That old- time engine of tyranny, general warrants, will not do. There must be a special warrant for each case. It matters not who has the power of arrest, the Constitution is imperative, that no warrant — that is, no order — shall issue except in the manner prescribed. If, as claimed, the President's discretion over the privilege of the writ, and his power of arbitrary arrest come by reason of the great confidence reposed in him by the Constitution, then this trusted power is personal, and peculiar to himself. He can no more transfer or deputize this high discretion, than Congress can deputize its legislative, or a court its judicial power. The exercise of the discretion and power is unavoid- A REVIEW OF THE ARGUMENT, ETC. 239 ablj thus restricted to the President ; and wlien so restricted lie will confess that it is not worth contending for, as it can render little or no aid in putting down rebellion. "IN'o person shall be deprived of liberty without due process of law." It has been decided in numberless instances, by Federal and State Courts, that "process of law" means ju- dicial process. It has also been uniformly so held by all statesmen. Now, the President, having no judicial power, nor power to issue or command the issue of any judicial pro- cess, how can he arbitrarily deprive a citizen of liberty — that is, imprison him — by his own order, or any mere executive process whatever ? The pretension is absurd. The Constitu- tion makes no exception of time or occasion when this rule need not be observed ; it is laid doA^ai for uniform, constant observance at all times, and under all circumstances. This greatly strengthens the argument against the right of Congress directly to confer the power to arrest upon the President. It is absolutely conclusive against giving him the power to im- prison. For whatever plausibility there may be in the idea, that mere temporary arrest, for the purpose of being carried before the proper functionary, is not depriving a man of his liberty, within the meaning of the Constitution ; yet, to im- prison him, is certainly to so deprive him. If one of the ob- jects of the imprisonment be to prevent his access to such functionary or to his constitutional guardian, the court, it be- comes a deprivation of liberty of the most flagrant, indubitably unconstitutional character. But Mr. Lincoln docs not pretend that his arbitrary arrests and imprisonments have been or will be made with the exclusive view of brino-ino; the arrested to trial, but boldly, frankly avows that it is done for the purpose of rendering the suspected " powerless for mischief until the exigency is past;" that is, until this probably long war is over. The Constitution tells Mr. Lincoln plainly, emphatically, that he shall have no power thus to tyrannize over his fellow-citi- zens, that he shall not so imprison them ; but he says he will. This rule, as to imprisonment, being so imperative, and without exception, it would seem to apply even during a temporary suspension of the wi'it of habeas corpus, so that there could not be even then a legal imprisonment, without some 240 A REVIEW or THE ARGUMENT, ETC. sort of judicial order. However mucli this construction may seem to some persons needlessly to hamper the efficiency of the Government in putting down rebellion, there need he no surprise at its being so arranged, for some of our wisest states- men were earnestly opposed to allowing anybody, even Con- gress, to suspend the writ. Many eminent writers in England and Europe have expressed the opinion that its suspension should never be allowed in a Republic. The argument ah in- convcnienti might rightfully induce Congress, during a suspen- sion, to consider a mere arrest as a quasi ministerial act, such as the Executive might constitutionally be empowered to per- form ; but whenever it comes to formal imprisonment, for the mere purpose of rendering a freeman " powerless for mischief," then the judicial functions must be brought into requisition. This may cause some inconvenience, some diminution of effi- ciency, as it certainly will require a large increase of deputy marshals and subordinate judicial officers ; but better, far bet- ter that inconvenience and expense, than trust arbitraiy, tyran- nical power in the hands of any man. So our fathers thought ; so let us continue to think and act ; so let us make the Presi- dent know and act. The argument says that Congress has the power, not the right, at any time to repeal the act giving the courts power to issue the writ, but attempts no use of the fact in illustration of the President's assumed power, and therefore the matter needs no comment. But it may be well to say that, whilst this is true, it is equally true that such repeal would be a gross abuse of power, being contrary to the spirit and meaning of the Constitution, wdiich are as much to be observed as its letter. For, incontestably, the Constitution contemplates that Con- gress shall always furnish a writ for the protection of citizens, except when, in cases of invasion or rebellion, it may think public safety requires a suspension of that protection. Every sound statesman and lawyer will agree, that a wilful violation of the manifest spirit of the Constitution is morally as bad as an infraction of its plain letter. The argument further says : " The President is a civil magis- trate, not a military chief," and because of "the prevailing sentiment that the military ought to be held in strict subordi- A REVIEW OF THE ARGUMENT, ETC. 241 nation to the civil power," tliey contend tlie President was made commander-in-cliief of the army, etc. " To call the judiciary the civil power, and the President the military power, is at once a mistake of fact and an abuse of lanffuag-e." All this is a gross blunder. So gross is the blunder, that it is in- comprehensible how it could be committed by gentlemen of intelligence. If the commander-in-chief of the military is not to be understood as included when speaking of the whole "military power," in the name of common sense, who can be included ? The phrase, " the military in subordination to the civil power," is borrowed from English political enactments, law writers, and historians. In that country, it has been uni- formly understood not to class the King with the civil, but the military power. The military being always in strict subordi- nation to him, there would be no significance in the phrase, if it referred to his as part of the civil power. By " civil power," is meant the law administered by its own appropriate functionaries — the judiciary. In other words, the distinct intention is, that when the power of the sword and the power of the law come in conflict, the sword must yield. This is well illustrated by our State Constitutions, which, whilst mak- ing the Governor commander-in-chief of the military, adopt this phrase into their bill of rights, saying : " The military shall always be held in exact subordination to the civil power," or using some similar language. Surely, so much pains would not have been taken to do this, if the Governor was intended as part of that civil power, when the Constitution had already placed the military in subordination to him as its commander- in-chief. The result of the discussion is — first, the President has, ez- offieio, no power of arrest, and none being conferred by Con- gress, he can have none. Second, but even if he has such power, no matter how derived, it must be exercised in the manner prescribed by the Constitution ; that is, there must be in each case probable cause sustained by oath, and an order of arrest particularly describing the person to be arrested, which cannot be issued by deputy. Third, the President has no power to suspend the pri\dlege of the writ of habeas corpus, that power resting in the discretion of Congress alone, conse- 31 242 A REVIEW OF THE ARGUMENT, ETC. quently even if this power of arrest and imprisonment were conceded, still the legality of the mode in which it is exercised is subject to judicial investigation ; and to this end, for the necessary protection of the right of citizens, he, like every other officer, is subject to the control of the law through its appointed functionaries. Here might appropriately close a mere review of what pur- ports to be the opinion of the Attorney-general, but which carries with it ample grounds for suspicion that it may not be an opinion, but only the argument of an official advocate. But this is not intended as such mere review, but as a comment on that and analogous topics. Among these is that kindred one of martial law, which, for abundant reasons, no doubt, both the President in his message, and the Attorney-general in his opin- ion, carefully abstain from saying one word about, though the authority to declare martial law" issued cotemporarily with that to suspend the writ, and, of the two, is much the major usurp- ation of power. But the President's obsequious partizans in Congress have not been so abstinent or prudent. Some of them infer the uselessness of the protection of the ^\Tit, in the pre- sence of assumed power to declare martial law, whilst others argue in favor of the latter power from the assumed power over the writ. The subject, therefore, cannot be properly dis- posed of without some notice of the claimed power to declare martial law. But, as this has already been done by the writer, at some length, in a printed pamphlet, what is now to be said will be as brief as practicable. 4. Martial Law. The books furnish no better definition of martial law than that given in Jacobs's Law Dictionary : " The law of war that depends upon the just but arbitrary power and pleasure of the king or his lieutenant. He useth absolute power, so that his word is law." "A distinction should be made between mar- tial law, as formerly executed, entirely at the discretion of the crown, and unbounded in its authority either as to persons or crimes, and that at present established, which is limited as to both." In other words, martial law is the will of the military commander who proclaims it. A E E V I E W OF THE ARGUMENT, ETC. 243 As agreed on all hands, it lias been forever abolished in Eng- land since the petition of right, has not been known there for near two centuries, has been held by Lord Loughborough to be incompatible with the genius of the English Constitution, and, all authorities concur, can only be established by the om- nipotent power of Parliament. Are we liabl e to such a law in this country ? Can our free citizens be made the slaves of a militaiy despot ? That is the question. Our Generals have been authorized by President Lincoln, so far as he could authorize, to proclaim martial law, and General Fremont has actually proclaimed and is now en- forcing it over some hundred and sixty thousand of our coun- trpiien at St. Louis ; this, too, without any proclamation of rebellion against that city, or against the State of Missouri. Any State adhering to the Union is equally liable to be treated in the same way. It is, therefore, a pressing question of the greatest moment to the whole nation. As far as can be ascertained, and as believed, there w^as no attempt to establish martial law during the seven 3'cars' war of the Revolution. Nor was there any during the three years' war of 1812, except that of Jackson, which, as before stated, was first condemned as illegal and void by an intelligent court- martial, then by the District Court of the United States, and afterward by the Appellate Court of Louisiana. Judge Bay, of the Appellate Court of South Carolina, thirty or forty years ago decided in the same way, saying: "K by martial law is to be understood that dreadful system, the law of arms which in former times was exercised by the King of of England and his lieutenants, when his word was the law and his will the power by wdiich it was exercised, I have no hesitation in saying that such a monster could not exist in this land of liberty and freedom." When the cpiestion of the refunding of Jackson's fine was before Congress, the subject was referred by each House to its Committee on the Judiciary. The report of the Committee of the House of Pepresentatives was written by a member who has since obtained such an enviable reputation for pure, enlightened, unimpassioned statesmanship, as Senator Pearce, of Maiyland. The report speaks thus : 244 A REVIEW OF THE ARGUMENT, ETC. " Your committee do not tliink that the military eommauder has any rights or duties paramount to the Constitution, from which he derives his commission. If such officers do possess powers above the Constitution and the law of the land, of the extent and application of which they, and they alone may judge, and if the Constitution and law cannot protect the citi- zens against the exercise of such extraordinary, undefined and undefinable powers, then is our frame of government a solemn mockery — then are our bills and declarations of rights idle and unmeaning forms, and the boasted liberty of an American citizen is but an empty sound. " It would be still more monstrous if, besides suspending the habeas corpus and detaining a citizen, it should be claimed to try and execute him by martial law, which is not tolerated in England, nor in any country except where despotism reigns. " This doctrine of necessity, which at one time is said to ab- rogate the Constitution and all law, and at another to justify the invasion of a part of freemen's privileges that the rest may be preserved, has long been known as the tyrant's plea. It is not tolerated in England, no matter what may be the distem- per of the times ; and while it is palpably incompatible with the principles of American freedom, it is also directly met and expressly denied by constitutional provisions. " The country may, in consideration of great services, and upon atonement made, excuse the individual who has violated these principles ; but whenever they yield submissively to the invasion of these rights, whenever they are prepared to admit the tyrant's plea, they are fit only to he tlie tyrant's slaves." A briefer report from the Senate's committee, written by Mr. Berrien, condemned martial law with equal emphasis. But now we have the Rhode Island case, 7 How., which is claimed to recognize the right to establish martial law in this countr3^ It may be said of that case, or at least, of the opinion delivered in it, without fear of contradiction from any intelli- gent lawyer, that it is crude, ill-considered, and most loosely expressed. The question presented for decision was the validity of a statute of the Legislature of Rhode Island, which professed to "estab- lish martial law over the State," and whose validity had been A REVIEW OF THE ARGUxMENT, ETC. 245 recognized by its courts. The Supreme Court decided that this being a matter of pure local statute law, its decision, according to uniform usage, must conform to the decision of the local courts. This being decided, there was nothing left in the case, and the remainder of the opinion is mere obiter dic- tum. So far as the obiter dicta of Chief Justice Taney in de- livering the decision may be construed into an implied conces- sion that Congress may establish martial law, they are in direct conflict with his recent decision in the Merriman case. But it is due to him to say that there is not the slightest intimation of any such power in the President or other military com- mander, and the recognition of the power in the Rhode Island Legislature was, no doubt, caused by the fact of tlie people of that State living then under the old colonial charter, without the protection of a written Constitution or bill of rights. From this fact, he and the State Court most probabl}^ inferred a power, like that of the omnipotent Parliament, to establish martial law. He seems to have labored under some loose impression that there was some other and different kind of martial law in- tended by the Rhode Island Legislature than that formerly in use in England, known under the significant definition of the will of the "military commander" — something between that and the law of Congress, or of a State, for the government of the army or militia ; for he says : " ^o more force, however, can be used than is necessary to accomplish the object; and if the power is used for the purposes of oppression, or any injury wilfully done to person or property, the party by whom, or by whose order, it is committed would undoubtedly be answera- ble. There is nothing of arbitrary power in this, but the re- verse. It is nothing but the kind of power which the military may lawfully use, and must use, when called in aid of the civil authority to suppress rebellion, and entirely within the limits of the military law as prescribed by Congress. Again, he says : " We forbear to remark upon the commissions anciently issued by the king to proceed against certain descriptions of persons by the law martial. These commissions were issued by the king at his pleasure, without the concurrence or authority of Parliament, and were often abused for the most despotic, op- pressive purposes. They were finally abolished and prohibited 246 A REVIEW OF THE ARGUMENT, ETC. by tlie petition of right. But they bear no analogy in any respect to the declaration of martial law by the legislative authority of the State, made for the purpose of self-defence when assailed by an armed force." This shows he must have labored under the delusion re- ferred to ; yet he could scarcely have committed a greater mistake. There is not, never was, any such intermediate kind of martial law. The books furnish no trace or intimation of anything of the kind. The old martial law is the only one known or ever heard of. Consequently that and none other must be what is meant whenever martial law is proclaimed by statute or military order, under that name or designation. Consequently, also, Avhat he seemingly makes the court say can have no bearing on the matter under discussion, except as a strong intimation against the power of even an unrestrained Legislature to establish the old, the only martial law in this country. The decision out of the way, how then does the matter stand, on principle and analogy. To declare martial law is to make law. It is to make law of the very highest character ; for it supersedes all other, and, in effect, repeals. all other law, and puts this law in their place. E"ow, to make law or repeal law is legislation, and the whole legislative power of the na- tion, so far as confided to anybody, is granted exclusively to Congress. This argument alone, if there were no other, would be perfectly conclusive against the power of the President to declare martial law. For nothing is better established on prin- ciple and by authority than that the President cannot legislate — ^that is, make law. To permit him to do so would pervert and subvert all the great purposes for which the Government was so carefully divided into separate departments. Conse- quently, if martial law can be established at all, it must be done by Congress. Can Congress do it ? That it cannot is obvious. First. Because the Constitution says : " The right of the people to be secure in their persons, houses, property, and effects against unreasonable searches and seizures, shall not be violated ; and no warrant shall issue but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searchec\ and the person A REVIEW OF THE ARGUMENT, ETC. 247 or tiling to bo seized." Every one of these rights thus intended to be guarded are infringed by the exercise of martial law. This must be so, for otherwise there could be no reason for martial law, the civil authority already having ample power within those limits — unless, indeed, martial law is intended to try and punish offences by some speedy, summary method not known to law. This brings us to objection Second. Because the Constitution says : " No person shall be deprived of life, liberty, or property, Avithout due process of law." That is, by the law of the land, under the administration of its assigned functionaries — the judiciary. TJiird. Because the Constitution guarantees to an accused a speedy public trial by jury, to be informed of the nature and cause of the accusation, to be confronted with the witnesses against him, to have compulsory process for his witnesses, and the assistance of counsel, all of which martial law dispenses vdth and disregards. K it did not, the civil law is sufficient, and there can be neither need or use for proclaiming the other. The utmost that the usages of martial law allow is a drum-head court-martial, and even for that much the accused is dependent upon the discretion of the commander. He can dispense with all modes of trial, and order an accused to be shot for anything he chooses to call an offence \vithout any investigation what- ever. These guarantees of the Constitution are without exception as to times of public danger, or for any supposable case of State necessity, and are, therefore, to be always observed under all circumstances. Congress has no discretion to disregard them. They clearly prevent Congress from declaring martial law. This construction is fortified by the denunciation of martial law in the Declaration of Independence and its express prohibition in all the State Constitutions, which, being general grants of all power, with specific exceptions or prohibitions, were supposed to require, out of abundant caution, the special inhibition of martial law. But the Federal Constitution con- tains only a grant of specified powers, with an express reser- vation of all power not granted, and, there being no grant of 248 A REVIEAY OF THE ARGUMENT, ETC. power to establisli martial law, there was no need for its spe- cial prohibition. But concede the power, can it be transferred to the Presi- dent ? No more than Congress can divest itself, by transfer, of any other or all its legislative power. As before said, to declare martial law is legislation, a class of power which he cannot exercise — one which, according to the fundamental division of the Government into departments, is denied to him and confined to Congress. Still there is necessity. State necessity, the law of self-de- fence, self-preservation, inherent in all Governments, which, it is said, Constitutions cannot take away — a higher law, which over-rides all Constitutions. There is no reasonins^ with hio-her- law men. They are a law and a reason to themselves. To those not of that class a short argument \vill be sufficient. "Whatever force there may be in the argument that Govern- ment cannot rightfully take from an individual the necessary right of self-defence, still it cannot be denied that Government has the power to impair that right most materially. For in- stance, it has the power, not the right, to deny the right of killing in self-defence. With much greater propriety can a nation, when instituting Government — that thing of its ovni, for its own benefit, in which no other person has a distinct, separable interest — limit its bantlings, means, and powers of self-defence. Whether wise or unwise, it has the power, the just power, of saying : Let the Government perish rather than it shall do certain things. The perfect equity of such a decla- ration is apparent as soon as we reflect how disputable is what is and what is not necessary to Government self-defence. The nation has a perfect right — nay, it is an imperative duty of self-defence, of self-preservation, to judge all this matter in advance, and say what the Government may or may not do at any time and under all circumstances. This is perfectly indis- pensable to the preservation of civil liberty, and, however it may be in other countries, the preservation of civil liberty was the great paramount object with the founders of our Govern- ment ; because in its preservation was deemed to be involved the happiness and prosperity of the nation. Unless, then, he and others thinking with him can prove to the satisfaction of A REVIEW OF THE ARGUMENT, ETC. 249 others tliat they liave more wisdom tlian the nation, together with more interest in the preservation of its Government, there cannot be, even theoretically, any just claim to a higher law which shall override the Constitution and limit the nation's rightful power in this particular. " There is no life for liberty but in the supreme and abso- lute dominion of law. This lesson is written in letters of blood and fire, all over the history of the nations. It is the moral of the annals of republics ever since their records began. "Wlienever men have thought great thoughts, and died brave death for human rights, its everlasting truth has been pro- claimed and sealed with patriot blood." But suppose there was, which there is not, a proper analogy between the right of individual self-defence and that of Gov- ernment self-defence. Let us see how the matter stands in that view. Before an individual can take the law in his own hands and kill in self-defence, he must be driven to the wall. The danger must be immediate, imperative of death or griev- ous bodily harm, with no other means of probable escape, be- fore he can take life in self-defence. Now will it be seriously contended that this great nation of twenty millions is in the presence of such immediate, imperative danger, is so driven to the wall, that the incarceration of some fifty or a hundred suspected men in Maryland or Missouri, or the declaration of martial law, is absolutely, indispensably necessary to its preser- vation ? Yet that proposition, absurd as it is, must be proven before the higher law doctrine can be brought to bear, or be- fore the tyrant's plea can have any application. It is even doubtful whether arbitrarj^ arrest and' martial law in a country like this, of sparse, scattered population, are any material aid in suppressing rebellion. It is also doubted whether they can be such aid in the defence of an open, unfortified city like Baltimore or St. Louis, having a thousand points of ingress and egress, and which has to be defended from without and not from within. But concede that they are a material aid, still it cannot be contended that they are, like the knife or the pistol used in personal self defence, indispensably necessary — that they afibrd the onh^ probable means of escape from its danger. Xot being so indispensably necessary, they do not 32 ' " 250 A REVIEW OF THE ARGUMENT, ETC. fulfil the conditions of tlie doctrine of State necessity and Government right of self-defence. Let us leave higher law, State necessity, and this overmaster- ing right of Government self-defence in that grave, without resurrection, where our fathers fondly hoped they had deeply buried them, together with all the other accursed enginery of tyranny. Mr. Lincoln need not flatter himself with the hope that posterity, or even the present generation, will accord him ab- solution for his usurpation and arbitrary abuse of power by reason of the equally great, or even greater, atrocities perpetra- ted at the South against civil liberty. That is an example for his avoidance, not his imitation. Two wrongs never make a right. Because a murder was committed at Lexington, that is no reason for permitting it in Louisville. Because six mil- lions of our countrymen are suffering tyranny, that is no justi- fication for his making the other twenty millions suffer it also. On the contrary, the relief of those six millions is the best of his whole string of arguments for his war of invasion against the South. His inestimable prestige, as the vindicator of the Constitution and the law against causeless rebellion, is taken from him when he himself tramples on the Constitution and laws. He sinks himself to the level of the rebel President, and becomes the mere lawless chief of a rebellion against the Constitution. 5. The Two Wars. The nation is now afilicted with two terrible wars going on toe-ether. The war ao-ainst the Union, and a war against the Constitution, are being waged simultaneously. Each wears a threatening aspect of great peril. Which presents the greater peril, it would be difficult to decide. Wliich, if successful, will be most calamitous, men of intelligence will have no diffi- culty in deciding, even though they knew that a large majority of our countrymen might decide differently. So, in determin- ing which of the two is the worst treason — the war against the Union, or the war against the Constitution — men will differ in the same way. A patriot can side with neither war, but must resist them both. He must do this, even though he A REVIEW OF THE A 11 G U JI E N T , ETC. 251 brings upon liimself an imputation, from the ignorant, that he thereby favors one of these wars. The patriotism is of little worth which cannot bide the scathing of such imputations. Independence was a great achievement, but the establish- ment of civil liberty was a greater. The former was compara- tively of little worth without the latter. The Union is an inestimable, national benefit, but the Con- stitution is a still greater national blessing. The principal value of the Union lies in the preservation of the Constitution. The Union is the vase containing the precious ointment. Let us not permit the destruction of the ointment for the sake of the vase. " We cannot yield the jewel to retain the casket." The preservation of the Union is worth a high price, an im- mense price, but it is not above all price. We cannot afford to give the destruction of the Constitution as that price. "We may be said to owe a double allegiance — one to the Union, the other to the Constitution. Which is paramount, enlightened patriotism will have no hesitation in deciding. The one is allegiance to mere territorial limits, whilst the other is also allegiance to civil liberty. The one looks mainly to the physical prosperity of the nation, whilst the other looks to its moral well-being, its means of permanent happiness. The one is the ordinary patriotism of all nations, whilst the other is peculiar to ourselves, expanding as it does into a noble philanthropy, embracing the deep interest of all Christendom. The presentation of our Constitution in its supremacy, its sanctity, its inviolability, is a great interest in the cause of civil liberty throughout the world. Its destruction would be the putting out the last lamp of hope to the nations. They would mourn in rayless, hopeless gloom. The double fealty to Union and to Constitution, beautifully blended into one, is that double fealty to country and to liberty, making the proud distinctive patriotism of our countrymen. Whilst we leave it to President Lincoln, with an army of five hundred thousand men and a powerful navy to resist the war against the Union, every citizen should gird himself for the contest in resisting the other war against the Constitution. In this resistance we can expect no aid from the President, for he himself is the commander-in-chief of all the aggressors. 252 A REVIEW OF THK ARGUMENT, ETC. iNeitlier can it be expected from Congress, subdued as it is into absolute obedience to tbe President by his five hundred mil- lion patronage. Neither can it be expected from any of that large class, disseminated throughout society, who are thirsting for a taste of the Pactolian stream distributed by him. The odds are terrible, but let us not despair. The imminence of the peril should only serve, with true hearts, to nerve them the stronger. The celebrated report on retrenchment, made in 1826, by a committee of the Senate, of which Mr. Van Buren, Mr. Benton, and other distinguished men were members, said : " Patronage will penetrate this body, subdue its capacity of resistance, chain it to the car of power, and enable the President to rule as easily, and much more securely with, than without the nominal check of the Senate. " "We must look forward to the time when the nomination by the President can carry any man through the Senate, and his recommendation carry any measure through Congress ; when the principle of public action will be open and avowed — the President wants my vote, and I want his patronage. What will this be but the government of one man ; and what is the government of one man but a monarchy ? Names are nothing. The nature of a thing is in its substance, and the name soon accommodates itself to the substance." Yet the gentlemen who made this report never supposed that this one-man power would clutch us in less than forty years ; they never imagined an annual patronage of five hun- dred millions. President Lincoln, by way of extenuation for his usurpation, in his attempt to suspend the writ of habeas corpus, asks, in his message, " Are all the laws but one to go unexecuted, and the Government itself to go to pieces, lest that one be violated ?" intimating thereby that he has, at most, been guilty of violat- ing only one law, one infraction of the Constitution. Let us see. The following powers are given exclusively to Congress : — 1. To increase the army. 2. To increase the navy. 3, To appropriate the nation's money. 4. To regulate commerce with foreiorn nations. 5. To reo-ulate commerce between the A REVIEW OF THE ARGUMENT, ETC. 253 States. 6. To contract debt on behalf of the nation. 7. To suspend the writ of habeas corpus. The following powers are denied to both Congress and the President: — 1. To proclaim martial law. 2. Arrest without a legal warrant. 3. Imprison- ment or other punishment without conviction upon legal trial. 4. Punishment under ex post facto, or non-existing law. 4. The introduction of lettres de cachet, bastiles, and the midnight secret proceedings of the Inquisition. 5. The interdiction of exports. 6. The favoring of some ports to the prejudice of others. 7. The regulation of the commerce of a State within its own bounds. 8. To impair the freedom of speech and the press. 9. To " infringe the people's right to keep and bear arms." 10. To make unreasonable searches or seizures. 11. To prohibit emigration, or require a passport. 12. To dismiss the police of a city, in an unproclaimed State, and appoint others in their place. Here are nineteen important laws, or constitutional provisions, which he has grossly, wilfully vio- lated. His usurpations are so extensive, that it would narrow the inquiry to ask, what law or constitutional provision he has not violated, rather than to ask which he has violated or usurped upon. The rights, the safe-guards he has taken away, are greater, far greater than those he has left. It is not a ques- tion whether we shall overlook only a single usurpation as he claims, but whether we shall countenance such multifarious usurpation ; whether the rights and powers he has left to the nation, to Congress, or the judiciary, are really worth as much as those he has stolen. These thefts are not to be counte- nanced or excused under the pretext of putting down the rebel- lion, for if he cannot put it down with an army of five hundred thousand men, and a powerful navy, without trampling on the Constitution, it is because the thing cannot be accomplished, and he could not do it with all the power that could be accu- mulated into his incompetent hands. He has, with the butt- end of his implement, mauled the Constitution to pieces, and ^vith his foot upon its fragments, he bids the nation an inso- lent defiance. To all this usurpation a venal Congress yields a servile ac- quiescence, and, notwithstanding the oath of its members to support the Constitution, they accord him the indemnity of 254 A REVIEAV OF THE ARGUMENT, ETC. their approval. They even egg him on to further usurpations, to other excesses. One Senator asks leave to introduce a hill to aholish slavery in the rehel States. Another says his party will graciously forhear aholition as a means of subduing rebel- lion, unless it should become necessary ; but, if it cannot be done otherwise, they will proclaim abolition, and almost un- disguisedly utters the threat of inciting a servile insurrection ; that is, they will cause the desolation of eleven States ; they will incite a domestic enemy in every household, with knife and torch, to the work of destruction ; they will cause the in- discriminate massacre of the innocent women and children of eleven States. The worst spirit of all pandemonium could not conceive a more infernal purpose. This son of ITew England may think that any amount of blood and treasure will be well spent, rather than she shall be deprived of the monopoly of the finest market in the world for her manufactures and ship- ping. He may think that this war is " a thing that will pay ;" unlike the last war with England, which 'New England would not support because it was " a thing that would not pay," and to get rid of which she loudly threatened secession. But he should bethink himself before he desolates those eleven States, whether New England can afford much blood or treasure in killing the goose that lays the golden egg for her benefit. Another Senator, a reputed leader, said he proposed to lend the President the whole power of the country — arms, men, money — " and place them in his hands with authority almost unlimited." "I want," he said, " sudden, bold, determined, forward war ; and I do not think anybody can conduct war of that kind as well as a dictator." This is the avowal of the de- liberate purpose to commit foul treason against the Constitu- tion in shameless disregard of his oath for its support These atrocious sentiments he deliberately uttered twice in the Senate without any adequate rebuke. Had they been uttered in the Revolution Congress they would have met a withering rebuke. Tradition tells us that at the gloomiest period of the Revolu- tion, when a British army was ravagmg Virginia, a proposi- tion was made in her Legislature to make Patrick Henry dictator. The patriot Corbin, a warm friend of Henry, rebuked the proposer, and silenced the proposition, by calmly saying: A REVIEW OF THE ARGUMENT, ETC. L.JO " Your dictatorial crown to liis brow, my dagger to his heart." That was the appropriate, indignant manner in which the true men of the Revolution rebuked such infam3^ In a former, recent publication, the writer, from faith in the President's supposed amiability and reputation for integrity in private life, gave him exemption from an imputed design to erect despotic power on the ruins of the Constitution for his own benefit, or that of his party. That exemption must now be retracted — more recent developments have destroyed so much faith in that amiability and reputed integrity. His per- severance, since the meeting of Congress, in reiterated gross, wanton, useless violations of the Constitution shows that he has no consideration, such as an honest man would have, for the obligations of his oath to support the Constitution, or the obligations of duty as a citizen and a President. Whatever he may have been in private life, he has shown himself any- thing but amiable as a President. Those developments, in connection with the terrible disclosure of views by his indis- creet partisans on the floors of Congress, require doubts to be substituted for that exemption. Whether he lacks intelligence to see the infinite, permanent injury he is inflicting upon the country by his bad example — whether he i;? possessed by the weak man's foible, and is seeking vengeance for all the op- probrium cast by the South upon himself and his party — whether he has joined a conspiracy for giving himself, or party, permanent power on the ruins of the Constitution — or whether he has blindly yielded himself to the guidance of bad men who have fastened themselves upon him, and who will surely lead him to his own perdition, or that of the country, must be left for after-developments to determine. As an indication of the purpose of the reigning party to clothe its chief with dictatorship, all notice should not be omitted of a bill pending before the Senate at the adjournment of Congress, which would have passed if there had been time, as proved by test votes, and which, no doubt, will pass at the next session. It substantially gives the President or the mili- tary commander power to declare martial law over any State or district proclaimed to be in rebellion. It says " the com- mander shall make such police rules and regulations as he may 256 A REVIEW OF THE ARGUMENT, ETC. deem necessary to suppress rehellion, and all the civil authorities shall be bound to carry said rules and regulations into effect; " but if they fail to do so, then the commander shall enforce them. What is meant by police regulations "necessary to suppress rebellion" no man can tell, unless it means, as it seems to do, such as the commander may choose to think ne- cessary. Here is power to be given, and a command to legis- late over an entire State. Nor is this conj&ned to such States as have no organized civil government, except such as is aiding rebellion, but applies equally to any State which the President may choose to declare in rebellion, though it has a loyal Gov- ernment honestly aiding in the suppression of the rebellion. Another section suspends the writ of habeas cor-pus as to all persons " detained by military authority," without saying how long the suspension shall last. Another section says, " all per- sons found in arms against the United States, or otherwise aid- . ing their enemies, shall be detained as prisoners for trial, or may at once be placed before a court-martial to be dealt with accord- ing to the rules of war in respect to unorganized armed bands not recognized as regular troops." What those rules of war are the writer does not know, but supposes they authorize death. But what every lawyer and every man of intelligence does know, is, that this is a most disgracefully loose mode of legislation, even if Congress had the power — this referring to the unknown and unascertainable "rules of war" to deter- mine whether a citizen shall be shot by order of a court-mar- tial, or shall have a fair trial by the law of the land. If 2^ citizen not in arms is found doing what a court-martial may choose to think an aiding of the rebels, he may be instantly shot. This is splendid legislation for a free Republic. What an admirable engine for tyrannical persecution. Jackson thought a respectful published remonstrance against the con- tinuance of his martial law, long after the defeat and with- drawal of the enemy, was an aiding of the enemy, and prose- cuted the publisher before a court-martial. Why may not a packed court-martial think that any spoken, written, or printed censure of the President, the commander, or one of their sub- ordinates, or any other trivial matter at which either may A 11 E V I E AV OF THE A R fi U M E N T , ETC. 257 choose to take personal ofi'encc — such, for instance, as cen- sure of abolitionism — is an aiding of tlie enemy. Another section, in the tenderness of Congressional mercy, says that sentence of death shall not be inflicted upon persons "taken in arms" without the approval of the commander of the military district, leaving the persons taken not in arms to be immediately executed without any such approval. The two sections, taken together, authorize the commander of a military district, and his packed court-martials, to insti- stitute an hidiscriminate massacre of all prisoners however and for whatever taken, contrary to the usages of all civilized war- fare, even among hostile nations, and which usages, as all pub- licists agree, are the least bloody that should obtain in carrying on civil war. (See sections of the bill, Appendix E.) If there be a lower depth of infamy not yet attained in these times of political prostitution and reckless subserviency to power, this bill, when passed, will plumb that depth. Baseness can dive no deeper into the pool of degradation. To permit a packed court-martial, contrary to the usages of civil war, recognized in all the civil wars of England and in our own long Revolutionary war, to authorize the massacre of prisoners taken with arms in their hands, would be a lasting disgrace inflicted upon the character of the nation, for which even the lives of every member voting for the bill would be little more than an adequate atonement. Their lasting disgrace, with every intel- ligent man here and abroad, now, and in the long future, is a part of the penalty they will certainly have to pay. So keen is their appetite for blood and vengeance, that they are reckless of the fact, that such a procedure necessarily involves the equal massacre of all IS'orthern men taken prisoners by the armies of the South. But, worse than even this, if worse there can be, is the permission to a packed court-martial to authorize the putting to death by a military commander of any citizen or citizens he may choose to say were aiding or abetting the rebels. What sort of aiding or abetting shall authorize the infliction of death the bill does not say. That is all left to the discretion of our military masters. Now, the degrees and modes of aid- ing and abetting are infinite ; some authorizing the imposition of only a small fine, others a short imprisonment, ascending, 33 258 A REVIEW OF THE ARGUMENT, ETC. like otlier crime, in gradation, until the attaining of such aid- ing and abetting as amounts to treason, wMcli deserves death. All these are massed together without discrimination, the mili- tary being authorized to inflict death for the lightest as well as the greatest. These men have not the sense, or, if they have the sense, they have not the mercy, to discriminate between a public trial before a court of law, by an impartial jury, both court and juiy acting under an imposing responsibility to the public sense of justice, and a trial before a drum-head court- martial. The court and jury are trammeled with legal prece- dents of a thousand years, strictly defining what is an aiding and abetting of treason within the meaning of the law. On the other hand, the court-martial is trammeled with nothing but their own discretion, or, rather, their subseiwiency to their commander. A political opinion differing from that of the ruling party, an imprudent word, written or spoken, of com- plaint against our masters, or any other trivial matter, may be made the pretext for the assassination under the sanction of this bill. Have we come to this ? Does a political party dare thus attempt to confer such an engine of tyranny upon their party chief — thus clothe him with the power of merciless persecution against their opposers ? Do they think that all sense of justice, all appreciation of liberty, is dead with the nation — that nothing can arouse it from its lethargy ? Are we to permit the fastening upon us martial law — that is, the will of a com- mander — in lieu of law, under the new phrase of " police regu- lations," or the old one of "aiding and abetting," expounded by military despots ? Mr. Lincoln has not waited for the passage of this bill. Mar- tial law has already been proclaimed at St. Louis, with an accom- panying declaration that all infraction of its rules will be " promptly punished ; " three newspapers have been suppressed, and quiet citizens of the first respectability arrested and de- ported to distant bastiles ; this, too, without any proclamation of rebellion against either the State or the city. Mr. Lincoln can easily create a rebellion whenever he wants one. To do this he need only repeat it in any State having the semblance of power to resist what he has already done in the A REVIEW OF THE ARGUMENT, ETC. 259 two unproclaimed States of Maryland and Missouri, and lie will have, not rebellion m aid of disunion, but within the Union, under the national flag, against unconstitutional oppression. When he has created the rebellion he can issue his proclama- tion, and then will come this act of Congress pretending to legalize his dictatorship. His partisans may pretend to think his discretion may be safely trusted not to abuse such power ; but the Constitution places no such reliance on any man's for- bearance or discretion. Neither is the nation disposed or bound so to trust him, or any other President. He who could allow, without even public rebuke, three repetitious of wanton mas- sacres by his German soldiers in the streets of St. Louis of un- offending men, women, and children, and he who imposes such needlessly rigorous imprisonment upon citizens as respectable as himself or any member of his Cabinet, for no cause but that of their political opinions in favor of the right of secession, deserves not to be so trusted. As to a practical dictatorship, that is past praying against. "We already have a dictatorship. With a subservient Congress, wdth an obedient enormous army, wdth an active assisting civil corps of a hundred, and soon to be increased to two hundred thousand, with hundreds of thousands of partakers and of hungry seekers of patronage, W' ith a muzzled press and a power- less judiciary, Mr. Lincoln is now the master of this nation. His will is everywhere law. The dictatorship is in full force. All that is left for us is to do w'hat we may to prevent its becoming a permanent institution. The higher-law doctrine, that last refuge of fanaticism, after a thorough defeat in the field of argument, was forever buried, as it w\as hoped, under an immovable load of national contempt and odium. But we find it now not only resuscitated into new life, but w^ith vastl}^ increased vigor. From the mere shib- boleth of a pow^erless faction of fanatics, it has been inaugu- rated by the President and his higher-law Cabinet into the ruling principle of the Government. They have cunningly dropped its old name of odium and reproach, substituting that more imposing one, the law of war. They tell us that ours is a mere fair-weather Constitution — not made for the stormy weather of war or rebellion ; that whilst peace has its Consti- 260 A REVIEW OF THE ARGUMENT, ETC. tution and laws, war lias also its appropriate law, superseding tlie other — this supreme, paramount law of war being the un- bridled will of its commander-in-chief This is the recognized higher law of the day, which is openly claimed to be above all constitutional restraint. It is, on a larger scale, what has been long known in this country under the name of lynch law. "What a calumny upon the great founders of the Republic to say the frame of Government formed by them with so much care was intended merely as a fair-weather Constitution ! It contemplates wars and rebellions, and gives the needful power for dealing with both ; yet it was intended not to have sway during war or rebellion ! During war and rebellion it was to be suspended — and by what ? By that thing, of all others the most abhorrent to the men of the Revolution — that then detested and forever execrable thing, a military despotism. If military despotism can ever be an indispensable aid in carry- ing on war, it must have been for precisely that seven years' war through which they had just passed — a feeble people struggling for independence against a powerful enemy, aided by tens of thousands of tories and traitors. If ever there was a military commander fit to be trusted with arbitrary power, they knew "Washington to be that man. But they gave him no such trust ; they acquiesced in no such supposed necessity for military dominance ; but, by their proud, successful exam- ple, gave the lie to the foul imputation upon republican insti- tutions, and taught their posterity that there never could be need, under any circumstances, for a military dictatorship. Again, we have the example of the last war with England, as righteous a war as was ever waged by one nation against another, yet during its whole progress denounced by a power- ful political party, in and out of Congress, by public speeches and the public press, together with endless charges of corrup- tion and imbecility against the Administration. Such was the acerbity and untiring zeal of that party, that, having entire political control of New England, it rendered the whole of that large part of the nation's population and wealth almost per- fectly neutral in the war, giving the Government no aid, but hanging upon it like a palsied limb. During the sacking and burning of 'Washington City, and the immediately sue- A REVIEW OF THE ARGUMENT, ETC. 2G1 cccding attack on Baltimore — in fact, during the years of rigorous blockade of our ports, the opposition never ceased to thunder forth their denunciations against the war and the Ad- ministration. Did the Administration resort to arbitrary mea- sures to silence this opposition, or to protect itself against the secret machinations of suspected spies and traitors ? Not so. No man, no press was disturbed for political opinion. If the policy of the present Administration had been pursued, not a prominent politician or editor of the Federal party in New England would have been left outside a jail. But President Madison and his Cabinet were imbued with the true spirit of the Revolution. They recognized the supremacy of the law as the indispensable price of liberty, at all times, and under all circumstances, and they bowed to it in willing obedience. The pretext of any absolute necessity for the arbitrary un- constitutional measures now adopted as an aid in suppressing rebellion is a mere sham. It is a pretext gotten up, not for national protection, but for political persecution. It is a mere absurdity to contend that the protection of this great nation of twenty millions needs the institution of martial law — the arbitrary, lawless suppression of a few newspapers — and the imprisonment of a few hundred suspected persons, scattered through the countrj-. Party vengeance, not national safety, must be the true motive. All that those presses and suspected persons could possibly do, would not impair the strength of the Government half so much — nay, not a tenth part so much — as such manifestations of a deliberate purpose of the President to cast himself free from all constitutional restraint, and to put himself above the law. Such a course, if there were no alternative, would drive tens of thousands of loyal Union men to the dire alternative of aiding either the rebel- lion against the Union or the rebellion against the Constitu- tion. But there being another, a far better alternative, they will aid neither. Hence, tens of thousands of those who other- wise would be active, zealous supporters of the Government, are driven into inactive neutrality, and to that extent its strength is crippled and impaired. The whole theory upon which the policy of arbitrary, illegal coercion rests, if not mere "pusillanimity," as said by Mr. Dana, 262 A REVIEW OF THE ARGUMENT, ETC. is a total misconception of tlie character of our people. There is nothing in the whole circle of Government or individual operations which they hold in such utter abhorrence as arbi- trary, illegal oppression. Give the enemies of the Government the means of playing upon, exciting this feeling, and you fur- nish them an aid of great potency, whilst you correspondingly weaken the Government. Look at the opposite examples of Kentucky and Missouri. The latter had, at the commence- ment of these troubles, as proved by the elections, a much larger proportion of Union men than the former. They both had the misfortune of having Governors and Legislatures with secession proclivities, or, at least, sympathies. The true Union men of both States implored the President to let them alone — to leave to them the management of the seceders. The prayer from Kentucky was heeded, the consequence being that she was placed, and has been kept, in a position which General McClernand has said is worth to the Government an army of forty thousand men. Missouri was not so fortunate. A ma- lign influence intervened between her true Union men and the President. The policy of coercive intervention was tried upon her. The consequence was that her position now costs the Government an army of more than forty thousand men. So much for the coercion policy. It should never be forgotten that Americans are unused to coercion — are impatient under it — don't like to see it carried on; and, therefore, it should never be used but as a last resort — a dire necessity. The most respectable, intelligent, unwavering Union men of Missouri still insist that, beyond all doubt, if they had been let alone, the result would have been the same there as in Kentucky. The writer was the first Union man in Kentucky who pub- licly advocated any sort of coercion as a remedy for the rebel- lion of the Southern States. This he did on the 10th of April last. In accordance with what he then thought, and still be- lieves, was the almost undivided opinion of the thinking men of Kentuck}^ he said : " Coercion by an invading army is what no intelligent person does, or ever did, contemplate. The evils would be infinite, without any compensating benefit from such a course." What he recommended was the collection of duties on ship-board, ofi" the Southern ports. The impotency A REVIEW OF THE ARGUMENT, ETC. 263 of tlie Soutlicrii Confederacy to relieve itself from this sort of coercion, together with the burthen of taxation, would, it was thought, bring the Southern people to their senses. If not, then the forcible reopening of the navigation of the Missis- sippi and recapture of iTew Orleans were looked to for accom- plishing the object. This, with the addition of a rigorous blockade, is substantially the plan of General Scott, as divulged in his conversation with the editor of the !N'ew York Times previous to the battle of Bull Run. Something like it is also believed to have been the plan of the President when he issued his first proclamation. The call for three months volunteers is full proof that he did not contemplate a serious invasion. No man of sense would have thought of depending upon that description of troops for an invasion. Rumor says ho was driven from this policy, and made to adopt that of invasion, by the caucus dictation of nine or ten Grovernors of ISTorthern States, rabid partisans, as indispensably necessary to the sal- vation of their party. Be all this as it may, it is worthy of consideration whether it is not still best to resume somethins: like that original plan. "With an army of seventy thousand men to guard Washing- ton, and threaten Virginia ; another of twenty thousand to guard Fortress Monroe, and threaten aSTorfolk and Charleston ; and another of forty thousand to guard Missouri, and threaten Memphis, would put invasion from the South at defiance; whilst a comparative small army sent by sea might conquer and hold New Orleans. That place is so completely the heart of Louisiana that its conquest and holding would necessarily be followed by the immediate submission of the whole State ; whereas the taking of Richmond, or any other Southern city, will amount to little more than the conquest of the ground on which the invading army will be encamped. Louisiana detached, the Southern Confederacy is broken up. The Confederacy cannot last without her. Mississippi, Ar- kansas, and Texas must soon follow, wherever she goes. The balance would be too feeble to hold together. Besides, the opinion has been, and still is, confidently entertained that, if the irritation of active war is removed, the people of the South cannot be brought to stand the loss of more than two 264 A REVIEW OF THE ARGUMENT, ETC. cotton crops. This plan permits the reduction of the army to little over two hundred thousand — perhaps even less — with good hope of terminating the war in two years. According to the opinion of many men, full as wise as Mr. Lincoln and his Cabinet, the present plan does not promise a termination of the war in less than four to seven years, with an equal chance of proving unsuccessful in a permanent subjugation, and which, if successful, would leave the two sections in no condition of feeling to remain parts of the same nation. A defensive war by the North, whilst it would not increase or intensify the bad feeling of the sections, is dictated by every principle of sound policy. Many sagacious men deem it by far the most expeditious mode of terminating the war. The North is far less interested in its speedy termination than the South. The maintenance of an army of two hundred thousand will soon exhaust the resources of the Southern Government, unless in repelling a war of invasion. In resist- ing that, their citizens will contribute the last dollar. In its absence, they cannot be induced to stand, for two years, enor- mous taxation and total loss of trade. If they attempt the disadvantageous policy of a war of invasion against the North, it would require two men to our one. The raising of an army of five hundred thousand men, if at all practicable, which many doubt, is a thing greatly to be deprecated, and avoided if possible. Suppose the war success- ful, what is to be done with five hundred thousand armed men after it is over ? The soldier's life is a comparatively easy one. After a few 3'ears men become fond of it. The pay is better than for any kind of hard labor. Men and ofiicers become disinclined to exchange for any mode of dull, progging indus- try. Let it be remembered that full one-half of these men will be foreigners, and that all will be greatly disappointed as to the amount of plunder they expect to gather. "What will hin- der them from helping themselves out of the Northern cities ? These men will be the masters of the nation. There will be no means of resistance. They can do with the country what they please. It would be merely ridiculous to base any expec- tation on their supposed respect for the Constitution and laws, after the lessons taught them by Mr. Lincoln. Apparent as it A REVIEW OP THE ARGUMENT, ETC. 265 now must be to every one, liow impracticable is a sudden erusbing out of the rebellion by the application of mere force, without waiting the aid of slower influences, the grand desider- atum should be the keeping down of the army to the lowest possible number. Precipitation and precipitators have had their day. Their discomfiture accompanied that of Bull Run. All plans should be carefully revised, and precipitation should be no part of the one adopted. It has been shown that the terrible blunder of coercive inter- vention in Missouri, has lost, what would have been her quiet neutrality, the equivalent for an army of forty thousand men, and, by throwing her into her present position, imposed a burthen on the Government equal to an army of forty thou- sand, the great result of the blunder being eighty thousand. The war of invasion has proved still more injurious to the Union cause. Previous thereto it was doubtful whether, upon a fair vote, the Union men were not the majority in most of the seceded States. Since then, there are no Union men any- where left, except in West Virginia, East Tennessee, and a few sparsely scattered through Middle and West Tennessee. The war has consolidated the people, with that exception, into a unanimous, unchangeable spirit of resistance for as long as it may last. If it should be pushed actively forward for two or three years, the two sections will come to hate each other as bad as ever the English and French did. Such an animosity would leave a reconstruction of the Union scarcely desirable. Still, immediate peace or a recognition of the independence of the seceded States is not to be thought of. If Louisiana is permitted to go, the peace would not last a year. The vast population on the upper waters of the Mississippi will never submit to her final separation ; a mere free transit to and from the Gulf will not satisfy them. Having no vessels suitable for ocean navigation, what they need and will have, is a market at New Orleans, encumbered with no sort of tax, where they can obtain their own supplies, and furnish Mexico, South America, and the Islands. The South is in no temper 3-et to yield Louisiana. She may be brought to that temper in eighteen months, if the irritation is not kept at fever heat by an active prosecution of the war. Satisfy the Southern people that the 34 266 A REVIEW OF THE ARGUMENT, ETC. Governmeut does not mean a war of subjugation or vindictive persecution, and it is next to impossible that a majority of them will continue to submit to enormous taxation and the loss of the sale of two entire cotton crops. They will force their Government to yield Louisiana and Western Virginia, as the price of peace, though they may have a well-founded fear that their Confederacy cannot last without Louisiana. The point of honor will be saved, their independence acknowl- edged, and they will trust to fortune for the balance. Should the ultimate result be the permanent separation of Virginia, the Carolinas, Georgia, Alabama, and Florida, that would be far better for us than the further prosecution of this war, whose termination no candid, intelligent man can pretend to foresee. But should the anticipated split of the Confederacy take place, that separation would not be permanent ; but, after the lapse of a few years, reconstruction of the whole would be the most probable ultimate result. There is some danger of reaction at the IsTorth, running to the extreme of a precipitate and improvident peace. This may come from any one of several causes — failure to raise troops, failure to raise money, another serious disaster in the field, or the interference of England or France. The timidity shown as to the amount of taxation, and its entire postpone- ment for a year, indicate a want of confidence in the public sentiment of the North. The papers from that quarter tell us that enlisting already begins to drag heavily before the place of the discharged three months men has been supplied. The resignation of two hundred officers since the late disaster, looks as if zeal was flagging. A defensive war, with a rigor- ous blockade, would not require half as much in men or money, and would be within the easy ability of the North. In the opinion of very many having the best means for judg- ing the temper and resources of the South, this mode of con- ducting the war is the best for its speedy termination, and the only one for a reconstruction of the Union. It has the further recommendation of removing all pretext for any of those out- rages on the Constitution which are filling the hearts and minds of good men everywhere with gloom and despondency. A REVIEW OF THE ARGUMENT, ETC. 267 APPEN"DIX TO CHAPTER XV. EXTRACTS FROM CALHOUN S SPEECH ON JACKSON S PROTEST, Under our system, all who exercise power are bound to show, when ques- tioned, by what authority it is exercised ; to show, in a word, the express grant of the power. I proclaim it as a truth, as unquestionable truth, of the highest import, that the President has no right to exercise any implied or constructive' power. I speak upon the authority of the Constitution itself, which, by an express grant, has vested all the implied constructive powers in Congress, and in Congress alone. Hear what the Constitution says : Congress shall have power " to make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the Government of tlie United States, or in any depart- ment or officer thereof." Comment is unnecessary ; the result is inevitable. The Executive, no de- partment, can exercise any power without express grant from the Constitu- tion, or by authority of law. A most noble, wise provision, full of the most important consequences. By it ours is made emphatically a constitutional and legal Government, instead of a Government controlled by the discretion or caprice of those appointed to administer and execute its powers. By it our Government, instead of consisting of three independent, separate, conflicting, hostile departments, has all its power blended harmoniously into one, without the danger of conflict, and without destroying the separate, independent exist- ence of the parts. Let us pause for a moment to contemplate this admirable provision, the simple but efficient contrivance by which these happy results are secured. It has been often said that this provision of the Constitution was unneces- sary ; that it grew out of abundant caution to remove the possibility of a doubt as to the existence of implied or constructive powers ; and that they would have existed without it, and to the full extent that they now do. They who consider this provision as mere surplusage do great injustice to the wis- dom of those who framed the Constitution. I shall not deny that implied or constructive powers would have existed, and to the full extent as they now do, without this provision ; but, had it been omitted, a most important ques- tion would have been left open to controversy — Where would they reside — in each department ? Would each have the right to interpret its own powers, and assume, on its own will and responsibility, all the powers necessary to carry into effect those granted to it by the Constitution ? What would have been the consequence ? Who can doubt that a state of perpetual, dangerous conflict between the departments would be the necessary, inevitable result, and that the strongest would ultimately absorb all the powers of the other 268 A REVIEW OF THE ARGUMENT, ETC. departments? Need I designate -which is that strongest? Need I prove that the Executive, as the armed interpreter, vested with the patronage of the Government, would ultimately become the sole expounder of the Constitution ? It was to avoid this dangerous conflict between the departments, and to pro- vide most eflPectually against the abuses of discretionary or implied powers, that this provision has vested all the implied powers in Congress. Instead of a question of right, he makes it a question of duty, and thus inverts the order of things, referring his rights to his duties, instead of his duties to his rights, forgetting that rights always precede duties, the duties being, in fact, what the rights impose, and, of course, that duties do not con- fer power, but impose obedience — obedience, in his case, to the Constitution and laws in the discharge of his ofiBcial duties. The opposite view, that on which he acts, would give to the President the right to assume whatever duty he might choose, and then convert such duties into powers. This, if admitted, would render him as absolute as the Autocrat of Russia. B. EXTRACTS FROM WEBSTER's SPEECH ON JACKSOn's PROTEST. The first object of a free people is the preservation of their liberty; and liberty is only to be maintained by constitutional restraints and just divisions of political power. Nothing is more deceptive or more dangerous than the pretence of a desire to simplify Government. The simplest Governments are despotisms ; the next simplest limited monarchies ; but all republics, all Governments of law, must impose numerous restraints and limitations of authority. They must be subject to rule and regulation. This is the very essence of free political institutions. The spirit of liberty is, indeed, a bold and fearless spirit ; but it is also a sharp-sighted spirit. It is a cautious, sagacious, far-seeing intelligence. It is jealous of encroachment, jealous of power, jealous of man. It demands checks ; it seeks for guards ; it insists on securities ; it entrenches itself behind defences, and fortifies with all pos- sible care against the assaults of ambition and passion. It does not trust the amiable weaknesses of human nature ; and, therefore, will not permit poiver to overstep its prescribed limits, though benevolence, good intent, and patriotic intent come along with it. It seeks for duration and permanence. It looks back and before ; and, building on the experience of ages which are past, it labors diligently for the benefit of ages that are to come. This is the nature of constitutional liberty ; this is our liberty. A separation of departments, and the preservation of the lines of division between them, is the fundamen- tal idea in the creation of all our Constitutions ; and, doubtless, the continu- ance of regulated liberty depends on the maintenance of these boundaries. There is a strong disposition running through the whole protest to represent the Executive as the peculiar protector of public liberty — the chief security on which the people are to rely against the encroachments of other branches of the Government. To this end the protest spreads and dwells upon the President's official oath. Would the writer of the protest argue that the oath itself is any grant of power ; or that because the President is to preserve, A REVIEW OF THE A R G U M E N T , ETC. 269 protect, and defend the Constitution, he is, therefore, to use what means he pleases, or any means for such preservation, protection, and defence, except those which the Constitution and laws have specially given him ? Such an artmment would be preposterous ; but if the oath be not cited for this prepos- terous purpose, with what design is it thus displayed unless it be to support the idea that the maintenance of the Constitution and the preservation of the public liberties are especially confided to the safe discretion, the true modera- tion, the paternal guardianship of Executive power? The proposition is that the duty of defending the Constitution against the representatives of the States and the representatives of the people results to him from the nature of his office, and that the founders of our Republic have given to this duty peculiar solemnity and force. Mr. President, the contest for ages has been to rescue liberty from th^ grasp of Executive poicer. Whoever has engaged in her sacred cause, from the days of the downfall of those great aristocracies which stood between king and people to the time of our own independence, has struggled for the accom- plishment of that single object. On the long list of the champions of human freedom there is not one name dimmed by the reproach of advocating the extension of Executive authority. On the contrary, the uniform and steady purpose of all such champions has been to limit and restrain it. To this end all that could be gained from the imprudence, snatched from the weakness, or wrung from the necessities of crowned heads, has been carefully gathered up, secured, and hoarded as the rich treasures, the very jewels of liberty. To this end popular and representative right has kept up its warfare against prerogative with various success ; sometimes writing the history of a whole age with blood — sometimes witnessing the martyrdom of Sydneys and Rus- sells — often baffled and repulsed, but still gaining, on the whole, and hold- ing what it gained with a grasp that nothing but its own extinction could compel it to relinquish. Through all this history of the contest for liberty. Executive power has been regarded as a lion that must be caged. So far from being the object of enlightened popular trust — so far from being considered the natural protec- tion of popular right*— it has been dreaded as the great object of danger. Who is he so ignorant of the history of liberty at home and abroad — who is he from whose bosom all infusion of American spirit has been so entirely evaporated — as to put in the mouth of the President the doctrine that the defence of liberty naturally results to Executive power, and is its peculiar duty ? Who is he that is generous and confiding toward power where it ia most dangerous, and jealous only of those who can restrain it? Who is he that, reversing the order of State and upheaving the base, would poise the pyramid of political system upon its apex ? Who is he that declares to us, through the President's lips, that the security for freedom rests in Executive authority? Who is he that belies the blood and libels the fame of his ances- try, by declaring that they, with solemnity of form and force of manner, have invoked the Executive power to come to the protection of liberty ? Who is he that thus charges them with the insanity or recklessness of thus putting the lamb beneath the lion's paw? No, sir — no, sir. Our security is in our 270 A REVIEW OF THE ARGUMENT, ETC. watchfuhiess of Executive poioer. It was the constitution of this department which was infinitely the most difficult part in the great work of creating our Government. To give the Executive such power as should make it useful, and yet not dangerous — efiicient, independent, strong, and yet prevent it from sweeping away everything by its military and civil power, by the in- fluence of patronage and favor — this, indeed, was difficult. They who had the work to do saw this difficulty, and we see it. If we would maintain our system, we shall act wisely by preserving every restraint, every guard the Constitution has provided. When we, and those who come after, have done all that we can do, and all that they can do, it will be well for us and for them, if the Executive, by the power of patronage and party, shall not prove an over-match for all other branches of the Government. I will not acquiesce in the reversal of all just ideas of Government. I will not degrade the character of popular representation. I will not blindly con- fide where all experience admonishes to be jealous. I will not trust Executive power, vested in a single magistrate, to keep the vigils of liherty. Encroachment must be resisted at every step. Whether the consequences be prejudicial or not, if there be an illegal exercise of power, it must be re- sisted in the proper manner. We are not to wait till great mischief come — till the Government is overthrown, or liberty itself put in extreme jeopardy. We should not be worthy sons of our fathers, were we so to regard questions afi'ecting freedom. They accomplished the Revolution on a strict question of principle. They took up arms against the preamble of an act. They saw in the claim of the British Parliament, a seminal principle of mischief, the germ of unjust power, which they struck at till they destroyed it. On this question of principle, while actual sufi'ering was yet afar ofi", they raised their flag against a power to which Rome, in her glory, is not to be compared — a power which has dotted the surface of the whole earth with her military posts, whose morning drum-beat, following the sun and keeping company with the hours, circles the earth daily with one continuous, unbroken strain of the martial airs of England. C. In 1813, a citizen being held in custody by Major-General Lewis, command- ing a division of the United States Army, on a charge of treason, a writ of habeas corpus was issued by the Supreme Court of New York, to which Gene- ral Lewis, having made an evasive return, an attachment was awarded against him, accompanied by the following opinion of the whole Court, delivered by Kent, Chief Justice. (See 10 Johnson, 333.) " This is a case which concerns the personal liberty of the citizen. Stacy is now suffering the rigor of confinement, in close custody. He is a natural born citizen, residing in this State. The pretended charge of treason, with- out being founded on oath, and without any specification of the matters of which it might consist, and without any color of authority in any military tribunal, to try a citizen for that crime, is only aggravation of the oppression of the confinement. It is the indispensable duty of this Court, and one to which every inferior consideration must be sacrificed, to act a faithful guar- A REVIEW OF THE ARGUMENT, ETC. 271 dian of the liberty of the citizens, and to j];ive ready and effectual aid to the means provided by law for its security. One of the most valuable of those means is this writ of habeas corpus, which has been justly deemed the glory of the English law ; and the Parliament of England, as well as its courts of justice, have, on several occasions, and for centuries, shown the utmost solici- tude, not only that the writ, when called for, should be issued without delay, but that it should be punctually obeyed. Nor can we hesitate in enforcing a due return to the writ, when we recollect that, in this country, the law knows no superior ; and that, in England, her courts have taught us, by a series of instructions and examples, to exact the strictest obedience to whatever extent the persons to whom the writ is directed may be clothed with power, or ex- alted in rank, " If ever a case called for the most prompt interposition of the Court to en- force obedience to its process, this is one. A military commander is here as- suming criminal jurisdiction over a private citizen, is holding him in close confinement and contemning the cieil authority of the State." D. SYNOPSIS OF CASES REFERRED TO BY ATTORNEY-GENERAL. The first cited is the Rhode Island case (7 Howard), involving the validity of a statute declaring martial law over that State, which had been sustained by its highest court. The points decided by the Supreme Court are : First. That according to uniform precedent usage, the Court must conform to the decision of the State Court, this being a matter of purely local State law. Second. That whenever it may become necessary for the Federal Govern- ment to determine which of two conflicting governments in a State is the rightful one, it is for Congress and the Executive, who represent the political power, and not for the judiciary to decide. When these points were decided, the whole case was disposed of; and all else, in the loose opinion delivered, was extra-judicial, and the obiter dicta of the judge delivering the opinion. In reply to a question, having no pertinency to the case in hand, that a gov- ernment by martial law is not such a republican government as is guaranteed by the Federal Constitution, the opinion wanders off into loose talk about that. Whilst conceding that permanent martial law would not be a republican government, yet, it says, the Legislature of a State, having the right to use its whole military power in suppressing rebellion, and, treating martial law as part of that power, says it may be temporarily used for that purpose. But this must be taken in connection with the fact stated by the Court, that the people of Rhode Island were then still living under their old Colonial charter as their form of government — they being, consequently, without the protec- tion of a written Constitution or bill of rights, the Federal Constitution hav- ing no bearing on their case. Not a word is said, going to show that the President, or Congress, or any other State Legislature, having a bill of rights, could establish martial law ; nor is there the slightest intimation that the President can suspend the privilege of the writ of habeas corpus. 272 A REVIEW OF THE ARGUMENT, ETC. It is evident, also, that in speaking of martial law, the writer of the opinion had in contemplation a very different sort of power from what has heretofore been uniformly understood by law, and political writers, and In common par- lance, as to the meaning of the phrase " martial law." He seems to treat it as a sort of mere adjunct to ministerial power in the enforcement of existing law, and by no means as the introducing of a new or the suspending of the old law. Justice to Chief Justice Taney requires that these extra-judicial sayings of his, in this case, should be taken in connection with his recent decision in the Merriman case, — the latter, by all comity of the profession, being entitled to be treated as the more deliberate, and therefore the better expression of his opin- ion. This latter opinion is so clear, orthodox, and unanswerable in the ex- pression of his views as to fundamental principles of the Constitution in direct, plain, indisputable conflict with the exercise of any such power by Congress, or the President, for establishing martial law, that it must, with every fair, intelligent mind, exempt him from the dishonoring imputation of having meant, by the former opinion, to have made any such concession. At any rate, the candid will all agree, that the latter strips the former of all preten- sion as a judicial authority for the purpose claimed, Besides, the former opinion expressly says that the Petition of Right abolished martial law in England, except as to the omnipotent power of Parliament, consequently the equivalent expression in our bill of rights must have abolished it in this coun- try also, without any exception of Congress or President, there being no om- nipotent power here. The next case cited by the Attorney-general is Fleming vs. Howard (9 Howard, 603), which merely decides, that though Tampico Avas occupied by United States forces during the Mexican war, it was still a foreign port, and duties could properly be levied on goods imported from that place. The next case cited is Cross vs. Harrison (16 Howard, 164). It only decides that tonnage on foreign vessels, and duties on foreign goods, Imported Into San Francisco, were lawfully collected by the temporary government whilst the war with Mexico continued ; and afterward, until the revenue system of the United States was put into operation there by Congress ; also, that the formation of a temporary government in California, by our General, was the legitimate exercise of a belligerent right over a conquered territory of the foreign enemy. The next case Is the Santisimo Trinidadla (TWheaton, 305). The principal points decided here were, that the commission of a public ship of a foreign State, signed by the proper authorities, is conclusive evidence of her national character ; and that during the existence of civil war between Spain and her colonies, and previous to our acknowledgment of their independence, the colo- nies were deemed by us belligerent nations, entitled, so far as concerned us, to all sovereign rights of war against their enemy. There were various other points disposed of, but none having any nearer analogy than these, to the President's power over the writ of habeas corpus. The only other case cited Is Martin i'5."Wheaton (12 Wheaton, 29). The only matter decided in this case, having the slightest bearing upon the claimed power of the President over the writ of habeas corpus, is this : That the au- A REVIEW OF TUE ARGUJIENT, ETC. 273 thority to decide Avhether there is a danger of invasion to justify a call of militia to repel it, under the act of Congress, is exclusively vested in the Presi- dent, and his decision thereon is conclusive. This is plain, good authority to prove, what needed no proof, his like authority to detei'mine the question of an existing rebellion, under the same act, authorizing a similar call for its suppres- sion ; but it does not tend at all to prove his power to suspend the vrrit of habeas corpus as an aid in suppressing the rebellion. These are the cases, all the authorities relied on, for justifying so extraor- dinary, so unprecedented a usurpation of power. They, none of them, nor all of them together, give it the slightest sanction. The pretence, that they do, falls within the category of the broadly ludicrous. There never was used, on any important occasion, the parade of " such a beggarly account of empty boxes to make up a show," and gull ignorant credulity. E. SECTIONS OF THE BILL BEFORE THE SEXATE, XOT PASSED FOR WANT OF TIME. " Section 2. After publication of said proclamation (of rebellion) the said commander shall make and publish such ^wZice rules and regulations, conform- ing as nearly as may be to previously existing laws, as he may deem necessary to suppress said rebellion, restore order, and to protect the lives and property of all the loi/al citizens within said district; and all the civil authorities within said district shall be bound to carry said rules and regulations into effect. "Section 3. If, from any cause whatever, the said civil authorities fail to execute said rules and regulations, the said military commander shall cause them to be executed and enforced by the military force under his command." Here it is distinctly attempted to give power to a military commander to legislate at will, or make laws for a whole State, and which even the civil authorities are enjoined to obey — stringent laws, too, such as are necessary to suppress rebellion. The simulated restriction of "as near as may be to pre- viously existing laws" is no restriction at all, nor was it meant to be. As near as may be, would be the identical same laws, which would not do ; for new laws are intended, and, whatever may be the meaning of police regulations for a whole State, if they be of State creation, they are necessarily limited, and under judicial control, whereas the intent of the bill is to place the com- mander's stringent rules and regulations above that control. Besides, they are such "as he may deem necessary to suppress rebellion," etc., and if those pre-existing are not adequate or proper, he, of course, is to make others to suit himself. So that they are such "as he deems necessary;" that is, all which is requisite to their validity. This is a delegation or substitution of legislative power with a vengeance. The attempt is even without a mask — it is impu- dently made, without an effort at disguise. Here, as is also noticeable, is a distinct recognition of a civil authority in the land, of which the President and his military subordinates form no part, notwithstanding the theory of Messrs. Lincoln and Bates. "Section 4. From and after the publication of the proclamation, the opera- tion of the writ of habeas corpus shall be so far suspended that no military 35 274 A REVIEW OF THE ARGUMENT, ETC. officer shall be compelled to return the body of any person or persons detained by him by military authority; but, upon the certificate, under oath, by the officer having charge of any one so detained, that such person is detained by him as a prisoner under military authority, further proceedings under the writ shall be dismissed by the judge, or court, having issued said writ." This section is a sad specimen of senatorial professional ability, supposing, in charity to the Senate, that it did not intend to make every petty officer a sort of sub-dictator in his sphere. Every captain, lieutenant, sergeant, and corporal is not only an officer, but also "a military authority;" and any of them having a citizen in custody, under his own causeless, unauthorized arrest, may truthfully return that the prisoner is held by military authority. The court must take his say-so in the matter, dismiss the writ, and is not per- mitted to inquire whether, in fact, the detention is by real military authority — that is, in conformity with those same rules and regulations — or upon the mere authority of Mister Corporal. Indeed, the section allows the rules and regu- lations to go even to that extent, and permit an imprisonment by a corporal, upon his own discretion, without any limit to the duration of the imprison- ment or the discretion. This is splendid legislation for Senators of a free people. They must be possessed with something worse than what Mr. Dana designates as "pusillanimity." " Section 5. All persons, who, after the publication of said proclamation, shall be found in arms against the United States, or othericise aiding or abetting their enemies or opposers, within any district to which it relates, and shall be taken by the forces of the United States, shall be either detained as prisoners for trial on the charge of treason or sedition, or other crimes or ojfences, which they may have committed whilst resisting the authority of the United States, or may, according to the circumstances of the case, be at once placed before a court-martial to be dealt with according to the rules of tear in respect to unorganized and lawless armed bands not recognized as regular troops, or may be discharged on parole not to serve against the United States, nor to aid or abet their enemies or opposers." What an enemy is we all know ; the books have taught us that ; but who knows what is an "opposer?" Does it mean one acting in political opposi- tion to the ruling power in the Government — the Republican party? It may well mean that, and full as appropriately as anything else. Does not the very introduction of such a new word, in connection with the crime of treason, sufficiently indicate some sinister purpose ? Why should such an unusual, undefined, undefinable word be used, but in the hope that the military satraps would give to it the very construction indicated ? In the estimation of the getters-up of this bill, there is probably not many things better deserving pun- ishment than opposition to their party rule. In debate they glorified their magnanimity for permitting freedom of debate in the Senate, and allowing Senators to censure their proceedings. What a contrast to the English House of Lords and House of Commons, permitting, without any such self-glorifica- tion, Chatham, Fox, Burke, and others, freely to denounce the war against our rebellious fathers, and openly pray for the defeat of the British armies. " Resisting the authority of the United States." What does that mean ? A REVIEW OF THE ARGUMENT, ETC. 275 If a citizen should say of this bill, after it has passed, that it is unconstitu- tional, -would that be resisting? — would that be " sedition?" " Unorganized, lawless armed bands." What does that mean? where shall we find the signification of those phrases ? Are not all armed rebels " lawless bands ? " So they have always been understood to be. If they are not meant, then what is meant by " lawless bands ? " Here, again, the selection of loose phraseology enhances the suspicion of a sinister purpose. "Dealt with" is well enough in common parlance, or ordinary composi- tion, and, in the connection here used, would have a well understood and most terrible significance, but is wholly inappropriate in a legal enactment order- ing capital punishment. It is usual and decent for such laws to say whether it shall be by strangulation, beheading, or shooting, and not leave that delicate matter to Jack Ketch, even though he may wear an epaulet, or even two epaulets. " Section 6. No sentence of death pronounced by a court-martial upon any person taken in arms as aforesaid, shall be executed before it has been sub- mitted to the commander of the -military department within which the con- viction has taken place, or to the Commanding General of the Army of the United States, who shall either approve the judgment of the court-martial, commute the sentence, or may discharge or pardon the person so sentenced." The whole pardoning power is conferred by the Constitution upon the Pres- ident, and it would seem that no capital punishment should ever be inflicted without his having a reasonable opportunity to interpose with the nation's mercy. So the matter has always been treated by our courts. It is a power which the President himself can neither abdicate or deputize ; yet these blunderers are trying to take it away, and give it to our generals. If they exercise it according to the usage of other satraps, it will prove to them a most lucrative power. This bill takes no sort of care as to the composition of the courts-martial. It would seem but reasonable that a citizen, when tried for his life, should have the privilege of a court, composed of officers from his own State, if to be conveniently had, that the trial should be had in the district where the offence was committed, that it should be public, and that he should have compulsory process for his witnesses. But, above all, an American citizen should have the privilege of being tried by his countrymen, and not by foreigners. None of these essentials are attended to. A citizen can be ordered to death by a court composed entirely of foreigners. Indeed, they are the description of officers most apt to be selected by a vindictive, tyrannical commander, for they have already shown their alacrity in dealing with opposers of the Gov- ernment in a manner entirely to suit the taste of such a commander, and the probable taste of the contrivers of this infamous bill of infamies. It would be some consolation to the bereaved family and sorrowing friends of a victim of martial law, to know that he had some show of fair trial before a court of his countrymen, instead of a packed court of Germans. It would also be right, when the accused is a foreigner, that he should have the privi- lege of a court de midiatate linquce. 276 HABEAS CORPUS. CHAPTER XVI. HABEAS CORPUS. ISTo. I. February, 1862. The vindication of the President's side of tins subject lias at length fallen into the hands of most unquestionable legal ability. The venerable and eminent Horace Binney has pub- lished a carefully prepared pamphlet of fifty-eight pages in vindication of the President's right to suspend, or of his right to disregard the privilege of the writ of habeas corpus. Li doing this, he is not merely personally discourteous toward Judge Taney, but quite free in imputation upon the character of Madison and the Congress of 1792. He also imputes to those " men of great acuteness" who deny this right the biased influence of their "political opinions" in favor of democracy, and "an acquired prejudice against Presidential power," "be- cause it carries power in 'that direction which is against the gulf stream of legislative authority, the great channel of the popular will of the moment." After such free invitation by example, he will neither be surprised or offended if his readers recollect or notice his frank showing of his own politics as some explanation of his own novel and most peculiar opinion. The pamphlet leaves no need for relying on popular imputa- tion, that he is of that old school of ultra Federalists who looked upon Alexander Hamilton, if not with perfect rever- ence, at least with implicit confidence in his political infalli- bility. This, too, in despite his known predilections for the English Constitution, as the very best that ever was or could be made ; — and despite his attempt in Convention to give us in addition to a Senate for life, a President for life, with an absolute veto on all acts of Congress, and a suspending power HABEAS CORPUS. 277 over all passed acts ; whilst the Governors of the different States were to be appointed by the General Government, with negative or veto power on all State legislation. He speaks of the " greatly preponderant strength" of Congress over that of the President as " the vice of the Constitution." AMiilst yield- ing it no word of commendation for supposed excellence, nor using toward it any expression of devotional affection, he ob- trudes upon his reader a warm eulogium on the English Con- stitution. Does he not force upon his reader the surmise, that his bias in favor of strong government may have influenced this his effort so materially to enlarge the power of the Execu- tive? "With due deference, this is not the proper mode to amend the Constitution. As said by Washington, " let there be no change by usurpation." What is alteration or amend- ment, not obtained in the regular mode, and merely through the insidious instrumentality of false construction, but usur- pation ? The reader, however, cannot foil to accord this new cham- pion the tribute of admiration for intrepidity in thus periling so large a reputation in his effort to give us a stronger Govern- ment. " The 'privilege of the ivrit of habeas corpus shall not be suspended, unless when, in cases of rebellion or invasion, the public safety may require it.'' The privilege mentioned in this clause of the Constitution is that of an imprisoned or detained person to be brought be- fore a legal tribunal, to be discharged, bailed, remanded, or tried without arbitrary delay. By which of the three departments of Government the sus- pension may be made, Mr. Binney says " is the question of the day." It is a question now for the first time raised, after the Gov- ernment has been in operation for more than seventy years. Heretofore it was so unanimously understood that the power belonged to Congi-ess as to prevent even the mooting of any such question. This common opinion has been afiirmed by the express declaration of the Supreme Court, by all the com- mentators, by all our jurists and statesmen who, by action or 278 HABEAS CORPUS. otherwise, ever intimated an opinion on tlie subject. It is also confirmed by the fact, that, after thorough research, those who dispute the opinion have not adduced the least intimation of even a contrary doubt heretofore expressed by any lawyer or statesman. Nevertheless, the apologists or defenders of the President who now venture to question the soundness of the opinion insist that it is still open for revision, and challenge discussion. It is the present purpose to present a brief, con- densed view of the subject, sufficient, as is supposed, to answer this new champion. There is a short process by which to eviscerate the very gist of the question, which seems not yet to have been applied, simple and obvious as is that process. Let us suppose the Constitution wholly silent on the subject, saying not one word about the writ or its suspension : where then would have been the power to suspend ? Ko intelligent, candid man, will pre- tend that it would not be clearly, indisputably with Congress, or that by any possible fair construction the power could be assigned to the President. This conceded, then let it be remembered that the clause is a restrictive^ not an enabling one. Without the restriction. Con- gress would have had plenary power, untrammeled discretion over the writ. It could have created the writ or not at its plea- sure ; suspended or wholly repealed it out of existence when- ever and as often as it thought proper. Here, then, this fall power, this full discretion over the writ, was what had to be restrained to accomplish the plain purpose of the clause ; that is, placing the citizen's privilege of using the protection of the writ upon a surer, more permanent basis than it stood in England, where it rests upon the untrammeled discretion of Parliament. Who, then, was intended to be re- strained by this clause ? Surely not the President, who, under such silence of the Constitution, would have had no possible control over the writ in any circumstances w^hatever. There could be no necessity to restrain his power when he would have none to be restrained. Full surely it must have been in- tended to restrain Congress, which alone and exclusively would have had the power. If this plain ^dew needed confirmation, it could be found in HABEAS CORPUS. 279 a cotemporaneous discussion in the Virginia Convention. Patrick Henry contended that tlie restrictive or proliibitory clauses created by implication powers not specially given, con- trary to the assertion of the advocates of the Constitution, that the Government would have no power but what was specially granted. He referred to the habeas corpus clause, and said: " It results, clearly, that if it had not said so, they could have suspended it in all cases whatever." Governor Randolph, to whom the country is more indebted for the Constitution than to any other member of the Federal Convention except Charles Pinckney, answering Henry, said : " Gentlemen, suppose from the negative restrictions that Congress is to have powers by implication. I will meet them on that ground. I persuade my- self that every exception here mentioned is an exception, not from general powers, but from the particular powers therein vested. To what power is the exception made to the importa- tion of negroes ? Not from a general power, but from a par- ticular power expressly enumerated. This is an exception from the power given of regulating commerce. He asks where is the power to which the prohibition of suspending the habeas corpus is an exception. I contend that, by virtue of the power given to Congress to regulate the courts, they could suspend the writ. This is therefore an exception to that power." And so he goes on as to each of the restrictive clauses, showing it to be an exception to a specially granted power. The clause must therefore be considered as addressed to Congress, and to no other department, saying in effect you shall not exercise your power of suspending the privilege of the ■writ, unless when, in cases of rebellion or invasion, the public safety may require it. Knowing that the writ would have to be created by legisla- tion, and that nothing but legislative power could repeal or suspend, that is, partially repeal such legislation, it must ne- cessarily be the Legislature that was intended to be controlled. Knowing that the President would have no legislative power or suspensory power over legislation, the clause could not have been intended to restrain him. If the intention had been to confer on him the suspending power, they well knew the indis- pensable necessity for doing so by a plain, unambiguous grant. 2S0 HABEAS CORPUS. Siicli grant would have been so contrary to popular opinion as to good government derived from English precedent, and to the whole theory of the Constitution, and it would have been such an anomaly in a government of separate departments, that the necessity must have occurred to every one for making the grant in the plainest language. The absence of any such language is ample disproof of any such intention. Wlien the negation of a power, but in an excepted case, car- ries with it permission to exercise the power in the case ex- cepted, surely the permission results to him whose power is so restricted. When a specific abstraction is made from a Con- gressional power, it must retain all the power not abstracted. Or, if one of its powers is reduced to its exercise in a specified case, it necessarily retains its power to the extent of that case. Nothing but the plainest language could properly transfer the residuum to the President. There is absolutely nothing upon which to imply such grant to him. Even if there was some plausible basis for such implication, still, as said by the Su- preme Court, " it is certainly against the general theory of our institutions to create great discretionary powers by implica- tion." Gelston vs. Hoyt, 3 "Wliean, 246. Indeed, according to both the theory and letter of the Constitution, it is more than doubtful whether the President has any implied power properly so called, the whole class of incidental, inferential, or auxiliary powers, " necessary and proper for carrying into exe- cution" " the power vested in him," being expressly given to Congress by the general clause of section 8, article 1. This was fully proved by "Webster, Calhoun, and others, in the debate on Jackson's protest. It has also been frequently so decided by the Supreme Court in reference to the vast jurisdiction con- ferred by the Constitution on the judicial department, none of which can be exercised but when and as Congress directs. A parity of reason makes all those decisions equally applica- ble to the executive department. This plain view ought to settle the question satisfactorily to the plainest and most astute intellects. !N^o amount of sophistry can cloud with the smallest doubt the process by which the result is attained. Mr. Binney, whilst overlooking this decisive view, contends, HABEAS COUP US. 281 because it is not said distinctly, explicitly, who shall exercise the power, it must go to that department to which its exercise most appropriately belongs by the general scheme of the Con- stitution, and hence infers that "the power appertains exclu- sively to the President." After an elaborate history of the writ, and of the adoption of this clause into the Constitution, he takes infinite pains to prove the trustworthiness of a President over Congress, and his better adaptation to the exercise of such power — thence inferring, because it ought to have been given to him, it must be construed to be so given in the absence, as he insists, of sufficiently manifested intention to the contrary. The whole of his argument to prove this superior fitness of a President, if it need answer, is full}' answered by the only Id stance occur- ring in our history where there was a diiference of opinion between Congress and the President as to the necessity of sus- pending the writ. It occurred during the time of President Jefferson, when Congress decided contrary to his opinion, that there was no need for a suspension, and the result proving that Congress was right and he was wrong. This only exam- ple in our national experience induces no undue confidence in Presidential infallibility, for it will be a most rare accident that will ever give the nation a President of more eminent ability than Jeflersou. But the argument needs no answer. It matters little what he or we may think as to which of the two was the more suitable depository of the power. "What he had to prove was that the members of the Convention thought as he does, and then that would have afforded some semblance of an argument in favor of his new invented version. But this he does not even attempt. Ko one knows better than he the perfect truth of the constrained admission of Messrs. Lincoln and Bates, that the Constitution was framed in " special dread of the unity of power," that is, of Executive power. This being so, he is not only deprived of all gain to his argument from that imputed superior fitness of a President, but the argument turns against him with peculiar force from the great import- ance he would evidently have attached to the fact if it had been really such as to suit him. That he knows the Conven- tion did not participate in his predilections for Executive power, 36 282 HABEASCORPUS. but were governed by an opposite feeling, by " a special dread" of such power, is clearly inferable from his pamphlet. He speaks of the "greatly preponderant strength" of Congress over that of the President as "the vice of the Constitution ; " and cites with approval the opinion of the English novelist, Bulwer, that our Government exhibits " the feeblest Executive perhaps ever known in a civilized community." He even permits him- self to say: "Jealousy of that office during the earlier part of the Convention, and in certain States before the adoption of the Constitution, was a topic with those who did not wish any Constitution or Union ; hut for sixty years, at least, it has been beyond any sensible man s power of face to profess it gravely." Such an affirmation, from such a man, at such a juncture, ought not to go without an emphatic contradiction and refu- tation, though every "sensible man" may know, or fancy he knows, that it has not the slightest foundation in fact. Whilst a perilous warfare is waging against the Constitution, and a powerful conspiracy going on for accumulating all power into the hands of the President, the published sayings of such a man, having direct tendency to aid that warfare and conspir- acy, ought not to be overlooked because of their harmlessness if uttered in other times, or only to men of intelligence. It would be worse than tedious, it would be useless, to mul- tiply proof in negation of his assertion. Let a few example specimens of the superabundant proof suffice. In 1826, when an annual disbursement of five or six hundred millions, and the patronage arising from a military and naval force of near seven hundred thousand men was anticipated by no one, a committee of the Senate, composed of such men as Benton and Van Buren, said : " Patronage will penetrate this body, subdue its capacity of resistance ; chain it to the car of power, and enable the Presi- dent to rule as easily and much more securely with than without the nominal check of the Senate. "We must look forward to the time when the nomination by the President can carry any man through the Senate, and his recommendation can carry any measure through Congress ; when the principles of public action will be open and avowed — the President wants my vote and I want his patronage. What will this be but the govern- HABEAS CORPUS. 283 ment of one man; and what is the government of one man but a monarchy ? " In 1840, "Webster in his Richmond speech said that, in his judgment, " it has come to be true, in the actual working of our Government, that the Executive has increased its influence and patronage to such a degree that it nmj counteract the will of a majority of the people. I believe that the power and patronage of the Executive not only has increased, is increasing, but ought to he diminished. * * * Perhaps it remains to be seen whether the framers of the Constitution had not better have given less power to the Executive, and taken all the in- conveniences arising from the want of it, rather than hazard the granting of so much as might provg dangerous, not only to the other departments, hut to the safety and freedom of the country at large.'' During the same year, Clay, in his Hanover speech, said : "Modern democracy has reduced the Federal theory of a strong and energetic Executive to practical operation. It has turned from the people and their immediate representatives, the natu- ral allies of genuine democracy, to the Executive ; and, instead of vigilance, jealousy, and distrust, has given to that depart- ment all its confidence, and made to it a virtual surrender of all the powers of Government. The recognized maxim of royal infallibility is transplanted from the British monarchy into modern American democracy, and the President can do no wrong. The new school adopts, modifies, changes, re- nounces, renews opinions at the pleasure of the Executive. * * * The sum of the whole is that there is but one power, one control, one will in the State. All is concentrated in the President. He executes, according to his pleasure or caprice, the whole powers of the Commonwealth which have been ab- sorbed and engrossed by him. One sole will commands and predominates this vast community. If this be not practical despotism I am incapable of defining it. The existence or non-existence of arbitrary government does not depend upon the title bestowed upon the chief of a State, but upon the quantum of power he possesses or wields. * * * How is it possible for public liberty to be preserved, and the constitu- 284 HABEAS CORPUS. tional distribution of power among the departments main- tained, unless the Executive career be checked and restrained." What were the encroachments, usurpations, and develop- ments of Presidential power so loudly complained of by "Web- ster and Clay, in comparison to those we are now daily witness- ing ? Yet this venerable writer has the " face " to say, "it is beyond any sensible man's power of face to profess gravely any jealousy of the Presidential office." It may reqmre no special "power of face" for an old-fashioned Federalist to avow his predilection for a strong Government ; but it ought to require no little to impute to all those among the fathers of the Repub- lic, who professed jealousy of the Presidential office, a want of friendship for the Constitution and the Union. The proba- bility is, that fully nine-tenths of the nation felt that j ealousy. It ought not to give offence to any of the living, to express the belief to those dead fathers, that such was their devoted at- tachment to the Constitution and the Union, that few or none of them would ever have attempted to alter the Constitution by false construction. That none of them would ever have proved so disloyal to the Union as to aid in the destruction of that Constitution which constitutes its chief value. They would not have encouraged latitudinous construction at a mo- ment of popular frenzy, when public sentiment sets so strongly against all barriers to the accumulation of Presidential power. Their fealty to party creed, or theory of best government, would have yielded to loyalty to the Constitution and the Union. They certainly never would have given aid and com- fort to the destructives, whilst the Constitution is in a death agony under their gigantic clutch, and when there is apparently neither moral or physical power in the nation to loosen their grip. Mr. Binney contends that the power and duty of making arbitrary arrests, pertains to the Executive during the suspen- sion of the writ, and that therefore there is a peculiar fitness in his having also the power to suspend. Though it seems not to have occurred to him, yet it will to all his intelligent read- ers, that his assumed fact furnishes the most conclusive reason against his construction. The office of the writ is to protect the innocent against arbitrary arrests by any one, which proves HABEAS CORPUS. 285 in practice, in accordance with rational presumption, almost exclusively — nine cases in ten, at least — a protection against Executive abuse of power. How preposterous then, how con- trary to all analogies of the Constitution, to suppose it to have been intended to leave it to Executive discretion to remove this, to him, obnoxious restraint upon his power. In England, they trust to the King an absolute veto, the power of war and peace, the appointment of all officers, and the creation of an unlimited number of hereditary legislators, but do not trust him with discretionary power over the sacred protection of this WTit — it is confided to Parliament alone. The framers of our Constitution, influenced by "special dread" of Executive power, and by a still higher appreciation of the value of that protection, and uninfluenced by English example, would not trust an unrestricted discretion over it to any one, not even the legislative department. Influenced by such high apprecia- tion of the protection, and such manifest jealousy of all offi- cials in regard to it as to prohibit its suspension, except in time of invasion and rebellion, and only then, even " ivhen the public safety may require it,'' it could not have been intended to give the power of determining when the public safety did so require to one, the very one, the only one of the whole nation, who would be under the personal bias of deciding in his own favor and relieving his o"uti power from an irksome restraint. That, as Daniel Webster would have expressed it, " would be placing the sacred kid under the paw of the lion." Who dare impute such worse than folly to the framers of the Constitution ! So rife was the jealousy of the Executive power in the na- tional mind, that the Congress of 1792, composed, in large part, of members of the Convention, would not trust even to AVash- ington to determine when a rebellion had become too strong for the civil authorities, but required that fact to be first deter- mined by a United States Judge before the President was allowed to use the militia in its suppression. Such, also, is believed to be the almost uniform tenor of State les-islation on the subject, as it has also been of English legislation. According to the theory of our written Constitutions, it be- longs to the Legislature, generall}-, to determine Avhat ought to be done, and command what shall be done, and to the ju- 286 HABEAS CORPUS. dicial and executive departments to cany tlie command into effect. A power in the Executive to determine that the privi- lege of the writ ought to be suspended, and to order its sus- pension, is subversive of this fundamental principle. It would be the introduction of a discordant anomaly. The avoidance of such an anomaly is strong reason against implying or pre- suming intention to grant such power. Another reason against the lodgment of such power in the President is, that he might be a sympathizer with the rebels, if not an instigator of the rebellion. The fact may not, prob- ably has not, actually occurred, but it is notorious that the last President was strongly suspected, and if Congress, just before the expiration of his term, had suspended the writ, the power of doing what was to be done would not have been confided to him or his subordinates, but to the judiciary and its subordi- nates. The Constitution gives the power to confer the ap- pointment of "inferior oflicers" upon the courts, and to those inferior officers would have been assigned the defined duty of doing whatever was intended should be done under the sus- pension. The President has, ex-officio, no power of arrest, nor any power whatever toward suppressing rebellion, except such as Congress chooses to give, and the whole of which Congress can, at any moment, take away. The writer's chal- lenge, made months ago, for the production of a single instance, before the advent of President Lincoln, of even an atempt by any President or State Governor, to exert the power of arrest, has not been answered. Most probably it never will be an- swered, as the attribution to the President of any ex-officio power of arrest, is a thing altogether new and of very recent invention. At common law, in certain cases of notorious felony, every citizen had a right to arrest, for the purpose of carrying the accused before the nearest magistrate for commit- ment ; and if our Constitutions have not abrogated this right, the President has it as a citizen, but not, ex-officio, as part of his official functions. He can, as an officer, only exercise the power when, and as Congress shall direct. Mr. Binney, if correctly understood, contends that the Con- stitution itself suspends the writ, or, which is the same, per- mits it to be treated as suspended, upon the happening of the HABEAS CORPUS. 287 concurring facts of a rebellion and of a peril to public safety requiring its suspension. This is a most obviously illogical conclusion, from the mere words of the clause, and there is certainly nothing elsewhere in the Constitution to aid that conclusion. The clause is restrictive, with a sort of negative pregnant exception to its prohibition, carrying an implied per- mission to suspend. This implied permission unavoidably in- volves the idea that something has to be done to carry out or act upon the permission ; that is, something besides the Constitution will be required to create a suspension. Other- wise, if the intention was that the Constitution itself should make the suspension upon the happening of the contingency, it would have plainly said so, by adding to the clause some such words as these — "and thereupon the privilege of the writ shall stand suspended." The permission given, is un- equivocably to suspend, not to treat it as suspended, conse- quently it could not have been supposed that the Constitution itself made the suspension in p7'esenti, to be carried out in fii- turo. So far as the permissive power of the clause goes, in saying the privilege shall not be suspended except on a named contingency, it says nothing, more or less, than would follow the equivalent words, ^^ the privilege may he suspended" upon the named contingency. Yet, if the latter had been the words used, the most caviling criticism could not deny that they re- ferred to something de hors the Constitution, which must be done to create the suspension. "WTiat that something was, could admit of no doubt with the Convention. There being neither writ nor the privilege of the -wi-it when the Constitu- tion was made, they had to be given by legislation, and as the Legislature alone can repeal or suspend a legislative act, they knew that the suspension could only be made by Congress. Unless, indeed, they really meant to confer a dispensing power on the President. But they knew that such power was held in abhorrence by the nation, its usurpation having cost the head of one English king and the throne of another, and therefore could not have so intended. If they had so intended, then every dictate of common sense prudence would have induced the making the grant of such power in the plainest, least am- biguous terms. They never would have left such an obnoxious 288 HABEAS CORPUS. power, such an inevitable cause of contention to rest on any- doubtful construction. A power to disregard tbe privilege of tbe writ is a very dif- ferent thing from a power to suspend the privilege. The former, if permitted, might be exercised by the Executive ; but the latter cannot, because it involves the exercise of legislation. The distinction is so obvious, that, if the former had been intended, the Constitution would have plainly said that, in the given case, " the President may disregard the privilege of the writ." It is agreed on all hands that the clause is a prohibition on Congress, except in case of necessity, against permitting any disregard of the privilege of the writ. What sense can there be in such prohibition if the Constitution itself gives that per- mission to the President ? Yet that absurdity is involved in the attempt to deduce a grant of power to him from a clause not even naming him, and which is merely a restraint upon or an exception from Congressional power. That the suspending power is a joint concurrent power in Congress and the Presi- dent is an absurdity, involving a probable if not necessary con- flict of jurisdiction, of which the Constitution is nowhere guilty. Both departments cannot at the same time have a purely dis- cretionary power over any subject, without the result in prac- tice being a mutual nullification to greater or less extent, or at least without very certain collision. As contended by Mr. Binney, the mere fact of rebellion is of such public notorious character as to permit its ascertain- ment by almost any functionary. But the rebellion must be of such perilous character to the public safety as to require a suspension of the writ, and that is a matter about which there may well be diflerence of opinion among even the wisest and most disinterested. English precedent, the national feeling of the day, as also that of the members of the Convention, all concurred in pointing to Congress as the only safe and appro- priate depository of the trust for determining that question, and in pointing to the Executive as the least trustworthy or appropriate. Such was the popular prejudice against any con- trol over that sacred, cherished privilege, that the people of HABEAS CORPUS. 289 Virginia declared in tlieir Constitution : " The privilege of tlie writ of habeas corpus shall not in any case be suspended." The result is, that the long established construction is the true one, and that Congress alone has the power to suspend the writ. When Congress exercises that power, it is to be hoped that it will carefully say for how long the suspension shall last, what powers shall be exercised during the suspen- sion, and by whom they shall be exercised, conforming as near as may be to the requirements of the Constitution for protect- ing the citizens against arbitrary or vindictive persecution. Since the publication of the writer's review of the Attorney- general's opinion, he has met with nothing in print sustaining the ground of that opinion requiring special notice, and there is, therefore, no need for his prolonging the discussion. It is due to Mr. Binney to say that he has done nothing to damage his high character, professional and private, by any direct approval of the Attorney-general's opinion, or by seeking from the law of war any aid to his own construction. No. n. A RESPONSE TO MR. BINNEY. July, 18G2. In reply to the writer's last pamphlet on this subject, Mr. Binney, a Philadelphia writer, quotes the following passages therefrom : " There is a short process by which to eviscerate the very gist of the question, which seems not yet to have been applied, simple and obvious as is that process. Let us suppose the Con- stitution wholly silent on the subject, saying not one word about the writ or its suspension, where then would have been the power to suspend ? I^o intelligent, candid man will pretend that it would not be clearly, indisputably, with Congress, or that by any possible, fair construction the power could be assigned to the President. " This conceded, then let it be remembered that the clause is a restrictive and not an enabling one. "Without the restric- tion Congress would have plenaiy power, untrammeled discre- tion over the writ. It could have created the writ, or not, at 37 290 HABEAS CORPUS. its pleasure, suspended or wholly repealed it out of existence whenever and as often as it thought proper. " Here, then, this full power, this full discretion over the writ, was what had to be restrained to accomplish the plain purpose of the clause ; that is, placing the citizen's privilege of using the protection of the writ upon a surer, more perma- nent basis than it stood in England, where it rests on the un- trammeled discretion of Parliament. Who, then, was intended to be restrained by this clause ? Surely not the President, who, under such silence of the Constitution, would have had no pos- sible control over the writ in any circumstances whatever. There could be no necessity to restrain his power when he w^ould have none to be restrained. Full surely it must have been intended to restrain Congress, which alone, and exclu- sively, would have the power." Upon this, Mr. Binney comments thus: "This objection is both pertinent and important. It was not overlooked in the preceding tract (his first pamphlet), but left for assertion and proof. If it is sound it materially disables the argument which regards the habeas corpus clause as a grant of authority. The objection is an affirmative one, and put upon the writer who makes it the duty of proving it. The objection is not proved at all ; " that is, the assertion that in the supposed silence of the Constitution Congress would have had full power is assumed, not proven. This criticism is just. It was not proved because it was presumed to need no proof, and would not be denied by any lawyer — least of all by Mr. Binney, who had magnified the necessity for a power in the Government to make the sus- pension. Having sufficiently rebuked the present writer for assuming instead of proving the proposition, he ex-gratia condescends to its disproof. In his attempt at this he makes the f Uowing most surprising affirmations : " The Constitution gives no such power to Congress as a poiver to regulate the courts.'' "The judicial power of the United States does not depend at a?Z upon the discretion or regulating power of Congress." " The appel- late jurisdiction of the Supreme Court is the only subject to Avhich the power of regulation by Congress applies." These strange affirmations are apparently based mainly upon HABEAS CORPUS. 291 the fact, tliat tlie Constitution does not use the word regulate in conferring the Congressional power over the courts ; and that their jurisdiction being prescribed by the Constitution, it can neither be enlarged or curtailed by Congress. Such ras'h de- duction, from such premises, was perhaps never before made by a man of such intelligence. ^^ Congress shall have power to constitute tribunals inferior to the Supreme Court." " The judicial power of the United States shall be vested in one Supreme Court, and in such inferior courts as Congress ma^ from time to time order and establish." These brief words cover the whole subject. Their elucida- tion depend upon the meaning of "to constitute a tribunal," and of to " establish a court." That meaning cannot be better explained than as done by Mr. Binney. He says : " It clearly can mean nothing else, than to erect judicial tribunals or courts, and to give them such constitution and organization as will enable them to exercise the judicial powers vested in them. The mere erection of a tribunal by name is nothing. The erection of a court, and vesting jurisdiction and judicial power in it, would be nothing without more. A judi- cial tribunal is not constituted unless it is endowed with the active powers which are necessary to the exercise of its judicial powers. It must have the means of bringing parties before it, and to enforce its judgments and decrees. It must have the power of issuing writs, of committing its mandates to offi- cers to be executed, in just such kind, number, and variety as its judicial powers demand." All this he admits Congress has the power, and contends, furthermore, that it is its imperative duty to do. Yet he carps at the expression used by Governor Randolph, "the power given to Congress to regulate the courts," as "indefinite lan- guage," not warranted by the Constitution, it not having used that very word regulate, though by this, his own showing, it has used its perfect equivalent. By that showing, the power to "constitute tribunals" carries with it as ample power to regulate them as if the word had been used, and the clause had read to " constitute and regulate tribunals." In addition, Mr. Binney well knows it to have been always held by the Su- 292 HABEAS CORPUS. preme Court, that the inferior courts can exercise no power, except such as is given them by Congress. Judge Story says (3 Comm. 254) : "But the same reason did not apply to the inferior tribunals. These were, therefore, left entirely to the discretion of Congress as to their number, their jurisdiction, and their powers. Experience might and proba- bly would show good grounds for varying and modifying them from time to time. It would not only have been unwise, but exceedingly inconvenient, to have fixed the management of these courts in the Constitution itself, since Congress would have been disabled thereby from adopting them from time to time to the exigencies of the country." In Turner vs. Bank (4 Dai's, 8), the Supreme Court said, that the disposal of the judicial power, except in a few specified cases, belongs to Con- gress. Again, in United States vs. Hudson (7 Cranch, 32), the Court said as to the inferior courts that they "possessed no jurisdiction but what was given them by the power that created them," that is, by Congress. All this being well known to him, it is marvelous how Mr. Binney could make the unqualified assertion that " the Con- stitution gives no such power to Congress as a power to regulate the courts.'' An ill-natured critic would hold him to these words, and punish him with their iteration. But that being no part of the present purpose, he having said words in this new pamphlet entitling him to lenient treatment, notwithstand- ing his defection from conservatism, it will be confessed that most probably the words do not convey his real meaning. What he meant was that an unstinted power to regulate does not, as he afterward more distinctly contends, carry with it the power to destroy the courts and their powers. "What he ought to have meant, but which he probably did not, was that the power did not carry with it the right to destroy — about which he will be talked with further along. The stalwart blows he gives in defence of the spirit against the strict letter of the Constitution, and in vindication of civil liberty, whilst making his chivalrous attempt to prove that, without the habeas corpus clause, Congress would have had no power to suspend the writ, are worthy of those palmy days when no suspicion of defection from the great cause of conservatism had ever HABEAS CORPUS, 293 soiled him. If he can do so well in favor of the spirit against the letter, we cannot hut sigh after those ponderous blows he would deal in defence of both letter and the spirit plainly com- bined. We cannot help a regretful feeling at the absence of that aid to which we are so clearly entitled. If the writer had any disposition that way he would be estopped by his own words from gainsaying Mr. Binney as to the dutiful obedience which should be yielded to the spirit of the Constitution, even when not expressed in direct language. In his review of the argument of the President and Attorney- general Bates, he said : " The argument says that Congress has the power, not the right, at any time to repeal the act giving the courts power to issue the writ, but attempts no use of that fact in illustration of the President's assumed power ; and therefore the matter needs no comment. But it may be well to say, that whilst this is true, it is equally true that such repeal would be a gross abuse of power, being contrary to the spirit and mean- ing of the Constitution, which are as much to be observed as its letter ; for incontestably the Constitution contemplates that Congress shall always furnish the writ for protection to citizens, except when, in cases of rebellion or invasion, it may think public safety requires a suspension of that protection. Every sound statesman and lawyer will agree that a wilful vio- lation of the manifest spirit of the Constitution is morally as bad as an infraction of its plain letter." The case of Martin vs. Hunter amounts to nothing more than affirmance of the otherwise sufficiently explicit mandate of the Constitution to vest the judicial power in the courts, which the court says, " Congress could not, witliout a violation of its duty, have refused to carry into operation." This does not, in the least, impugn the other decisions, that the courts must wait the performance of this duty before they can exer- cise their constitutionally defined jurisdiction, nor does it mili- tate against the naked power, apart from the right, in Congress to violate the whole or any part of this duty. As said by Judge Story, it is an absolute power over the subject, unavoid- ably left to the discretion of Congress. Not whether the mandate should be obeyed, but as to the how and the when 294 HABEAS CORPUS. this discretion unavoidably accompanied the power, not the right, to disobey. The distinction between power and right, is obvious to every one, yet Mr. Binney, intentionally or unin- tentionally, so confounded them as to make it difficult to get at his precise meaning. For instance, he says Congress " cannot effectually omit to do what it is commanded to do by the Con- stitution;" and yet, immediately afterward, he says, "it may omit to do the right thing, but it violates the command of its creator, by so omitting, and brings on the destruction of its own being." What he means by the destruction of its own being, is not understood. He surely does not mean that a temporary repeal of the writ of habeas corpus would necessarily involve that destruction. This thing of the legislative department refusing or omitting to obey the mandate of the Constitution is by no means a novelty in our system. According to the writer's recollection, the Supreme Court has detected more than one instance to prove that Congress has never yet enabled the courts to exer- cise the whole judicial power. A notable instance of a failure of the Legislature to obey an express command of the Constitution occurred under the former Constitution of Kentucky-, which expressly commanded the Legislature to provide for bringing suits against the Com- monwealth, yet, during the sixty years of its existence, this command was never obeyed. Suppose Congress omits this duty, where is the remedy? Who is to enforce the mandate — who to supply the omission ? Disobedience to a command of the Constitution is wholly un- like, in this aspect, a violation of its prohibitions. For the latter there is remedy, through the other departments ; for the former there is none. It is idle, therefore, to deny the mere abstract power, without reference to the right. Mr. Binney says it is not an untrammeled power, because it is trammeled by the duty referred to. If he means morally trammeled, he is right ; but, when we speak of an untram- meled Congressional power, we mean one that has no avail- able, effective legal trammel, and such is the power to regulate the courts. The power has been so repeatedly exercised, with the ex- HABEAS CORPUS. 295 press sanction of tlie judiciary, and the undoubting approval of everybody else, that it is no longer open to denial. Who- ever wants to limit the power, for any available puii^ose, must point out the express limitation in the Constitution. This Mr. Binney does not attempt to do, but contents himself with referring to certain abuses of the power which would be a violation of the spirit of the Constitution, the result of which being merely a moral censure on Congress, leaving such abuses to have full effect, without any legal check. Sixty years ago, Congress thought proper to repeal out of existence the whole then batch of inferior courts, and establish others in their place. Suppose this had been done b}^ two different bills, and that, after passing the repealing bill, some casualty had, for months, prevented the passage of the other, the establishing bill ; that fact would not have impaired the legal validity of the repealing act. 'No judge would have been mad enough to attempt to exercise his repealed powers. At the time of the abolition of imprisonment for debt, it was a prevalent opinion in the profession that there was no other suificiently efficient remedy to enforce the payment of debts. Suppose that opinion to have been indisputably correct, would such gross abuse of power in leaving the courts without the proper remedial process upon so important a subject have in- validated the act repealing to ca sa ? No court would have dared to use that or any equivalent process. IsTotwithstanding his own scathing castigation of all such latitudinarians, Mr. Binney at least, it would seem, though others do not, deems an anonymous writer in the National In- telligencer, last summer, justifying the Presidential usurpation, as some authority on a constitutional question. That writer, according to recollection, claimed the power of Congress to repeal the writ out of existence, not merely in the absence of, but in despite the clause, and made that fact a main basis of his argument. Mr. Binney attempts to bring to his aid what he deems a developed opinion of the members of the Convention that the clause was an enabling, not a restrictive one. He says : " When the vote in Convention was taken, while upon the division of the clause, the delegates were unanimous in affirm- 296 HABEAS CORPUS. ing the first member of it — ' the privilege of the writ of habeas corpus shall not be suspended.' The three States of North Carolina, South Carolina, and Georgia voted against the second member — 'unless when, in case of rebellion and invasion, the public safety may require it.' Could they have voted against the latter clause under the impression that the general and unlimited power was already given to Congress ? There is no rational interpretation of the vote but that the first member was declarative of a general prohibition of the power, and a confirmation of the general principles of Magna Charta, of the petition of right, and of all that had been previously declared, and that the second member granted power to the General Gov- ernment in the excepted cases." Yes, there is another rational interpretation, and one much more rational than his. That is, the three States wanted an unqualified, whilst the others wanted a qualified prohibition of the exercise of a power which they all knew that Congress would have over the writ. If they did not so know, why the unanimous vote in favor of the first member of the clause, which is purely restrictive, and has nothing enabling about it ? It could have had no purpose to restrain any supposable power in the President ; for even Mr. Binney admits that without the whole clause, the enabling latter member, he would have had no power over the subject. They must have meant to restrain Congressional power, for there was no other power to restrain. If the last part had been voted down the prohibition would have been unqualified. Now, then, this exposition of the views of the members by their votes, so far from subserving his pur- pose, operates in the directly opposite way. It is the strongest possible, most satisfactory proof so derivable, that they unani- mously thought Congress would have the power unless pro- hibited. The very language of the clause is, if possible, still stronger proof If meant as a qualified prohibition, it is apposite and appropriate, whilst it is wholly inartificial and inappropriate as a grant of power. K a grant to the President had been in- tended, some such language as the following would have been required, and certainly used : " The President may suspend," etc., or he " may treat the privilege as suspended." When we HABEAS CORPUS. 297 find sucli different language used, it is irrational and illogical to contend that the clause is an enabling one, intended to give the power to the President. Mr. Binney permits himself to say, " there is not a word like restriction or limitation in the first member of the clause," though it says, " the pri\'ilege shall not be suspended." If this be not restriction^ in the name of common sense, what is ? K he means a quibble upon the slight difi'erence in this respect between the meaning of restriction and prohibition, he con- tends for a distinction without a difference. The clause, viewed as a modified prohibition, is to all intents a qualified restriction. It equally presupposes a power somewhere, to be prohibited. There being no power anywhere to suspend any law, especially the law creating the writ, except in Congress, the intention must have been to prohibit Congress, which would be equally as full a recognition of the otherwise untrammeled power of Congress over the writ. Either way, the argument of Mr. Bin- ney is "materially damaged."* As to the idea that without the clause Congress would have no power, because of the absence of specific grant, to suspend the writ, an old-school Federalist must lose the cunning of his school before he can find any difliculty in proving the power to suspend to be an appropriate necessary and proper incident to the power to suppress insurrection or repel invasion. If the suspension of the right to freedom from arbitrar}^ arrest, and all remedy for the violation of the right, be an inseparable or necessary accompaniment to such incidental power, he would gulp that also with a clear conscience. Mr. Binney seems at last to be awakened to the recollection of the great importance of the writ, and speaks of it as the "principal bulwark of liberty," "the great fundamental law of human liberty," " the inestimable right of personal liberty." Now, when, as everybody knows, and as the President and Attorney-general distinctly admit, the Constitution was made in "special dread" of the Executive power, it is contrary to * In the first pamphlet, p. 33, Mr. Binney says: "For the reason that the clause is directly restrictive, the committee to revise the style and arrangement, place it in the ninth section of the first article, which is restrictive from beginning to end." 38 298 HABEAS CORPUS. every rational presumption to suppose an intention to make the President the custodian or special guard of that bulwark. To repel that presumption the language must be strong, une- quivocal, which no one can pretend the clause to be, as a yield- ing of such power to the President. He reaffirms and reargues to prove the President to be the most suitable and trustworthy guardian of the sacred trust. The writer reaffirms his owfi position, that the President is the least suitable, the least trust- worthy functionary of the whole Government ; but, instead of rearguing the matter, he will do vastly better by adopting-the language of Daniel Webster, than whom the country has pro- duced no higher authority on constitutional questions. The following quotation is from that most perfect specimen of pure eloquence ever uttered in our language, his denunciation of the one-man power : " The spirit of liberty will not permit power to overstep its prescribed limits, though good intent, patriotic intent, come along with it. This is the nature of constitutional liberty : this IS OUR LIBERTY. " The contest for ages has been to rescue liberty from the grasp of Executive power. Whoever has engaged in her cause has struggled for the accomplishment of that object. On the long list of the champions of human freedom there is not one name dimmed by the reproach of advocating the extension of Ex- ecutive power. On the contrary, the uniform, steady purpose of all such champions has been to limit and to restrain it. " Through all this contest for liberty, Executive power has been regarded as a lion that must be caged. So far from being the object of enlightened popular trust, so far from being con- sidered the natural protection of popular righl, it has been dreaded as the great object of danger. " Who is he so ignorant of the history of liberty, at home and abroad — who is he from whose bosom all infusion of American spirit has so entirely escaped — as to put into the mouth of the President the doctrine that the defence of liberty naturally results to Executive power, and is its peculiar duty ? Who is he that is generous and confiding toward power where it is most dangerous, and jealous of those who can restrain it? HABEAS CORPUS. 299 Who is lie that, reversiug the order of State, and upheaving the base, would poise the pyramid on its apex ? AVho is he that declares to us, through the President's lips, that the security for freedom rests in Executive authority ? "Who is he that belies the blood and libels the fame of his ancestry, by declaring that they have invoked Executive power to the pro- tection of liberty ? Who is he that thus charges them with the insanity or recklessness of thus putting the lamb beneath the lion's paw ? No, sir ; no, sir ; our security is in our watch- fulness of Executive power. " I will not acquiesce in the reversal of all just ideas of gov- ernment. I will not degrade the character of popular repre- sentation. I will not blindly confide where all experience admonishes to be jealous. / ^vill not trust Executive j^ower, vested in a single magistrate, to Iceep the vigils of liberty. " Encroachment must be resisted at every step. "WTiatever the consequence, if there be an illegal exercise of power it must be resisted in a proper manner. We are not to wait till great mischief comes — till the Government is overthrown, or liberty itself put in extreme danger. We should not be worthy sons of our fathers were we so to regard questions affecting freedom."* * Henry Laurens, the Ambassador of the United States, who vras captured on his way to Holland, and detained a prisoner in the tower of London for two years, kept a journal of his mission, which was published, and is to be found in a book the title of which is, perhaps, " South Carolina State Pa- pers." The writer has not seen the book, but states from the information of a gentleman who has recently read it. Laurens says that after his release from prison the English officials treated him with great courtesy. At the table of Lord Shelburne, the then Premier, he was the honored guest among a large company of magnates. After din- ner, the conversation turning upon the separation of the two countries. Lord Shelburne remarked to him, "I am sorry for your people." "Why so?" asked Laurens. "They will lose the habeas corpus." "Lose the habeas corpus!" "Yes; we purchased it with centuries of wrangling, many years of fighting, and had it confirmed by at least fifty acts of Parliament. All this taught the nation its value, and it is so ingrained into their creed, as the very foundation of their liberty, that no man or party will ever dare trample on it. Your people will pick it up and attempt to use it, but having cost them nothing, they will not know how to appreciate it. At the first great internal 300 HABEAS CORPUS. The result thus far is, that the writer was accurately correct in assuming that without the habeas corpus clause Congress would have had plenary power, untrammeled discretion over the writ. Mr. Binney himself by this time will be sufficiently sorry that he ventured to call for the proof, and, to relieve him, its development will not be further prolonged, not forgetting, however, to remind him that, according to his concession, his argument is thereby "materially disabled." To the emphatic denial by the writer of any ex-officio Presi- dential power of arrest, and his reference to the unanswered challenge made by him months before " for the production of a single instance, before the advent of President Lincoln, of even an attempt by any President or Governor to exert the power of arrest, Mr. Binney contents himself with responding : " The Louisville writer touched this point with only a short denial, without any attempt to prove the President's general incapacity to issue a warrant of arrest. * * * jf h^q clause intended to give him the power of suspension, the means ne- cessarily follow, if they did not exist before." Not so fast, Mr. Binney ; you cannot be permitted to slide over a difficulty quite so easy as that. The Constitution explicitly gives the courts the judicial power of the nation ; yet they themselves have uniformly held that the means to carry out the power did not necessarily follow, but they were dependent upon such as Congress might choose to give. So also as to the President ; he has no auxiliary or incidental power, but is dependent upon Congress for the grant of such means not expressly given as are necessary to carry out his constitutional power. This be- ing, therefore, no proof, and he offering no other, the inference is that he is without proof to maintain the President's power of arrest. The consequence is, that if validity were allowed to his novel crotchet as to the Presidential power of suspension, it would amount to nothing, would not be worth contending feud that you have, the majority will trample upon it, and the people •mil permit it to be done, and so will go your liberty." All history affords no higher evidence of sagacity, and no statesman's pro- phecy, eighty years in advance, was ever nigher complete fulfilment than by the daily transpiring acts around us. HABEAS CORPUS. 301 for, he had just as well be compelled to wait for a Congres- sional suspension. The inference is that Mr. Binney thinks the President has no cx-officio power of arrest, or he would have tried to prove it, and not have resorted to such fallible, make-shift argument. He must know that the fact of the want of such power is very damasfine: to his main argument. For how would the matter thus stand? The Convention, knowing that he had no power of arrest, and that all incidental or auxiliary powers were con- fined to Congress, Mr. Binney's construction would convict them of the bungling folly of attempting without actually con- ferring the power of suspension — an arrest, according to him, being the only mode of suspension. The fact of suspension requiring an arrest before it could occur, the Convention would have conferred the suspending power upon some department having the power of arrest, or have expressly conferred that power on the President, in plain words, and not left it to be discovered for the first time seventy years after the Constitu- tion was made, and require the discovery to be maintained by one of the most subtle arguments ever penned. If Mr. Binney had not fortunately lived till now the discovery never would have been made. Mr. Bullitt having produced, in his instructive and very able pamphlet, such a long roll of eminent judges, lawyers, and statesmen, including such names as Marshall and Story, who have expressly held the suspending power to be in Congress, justifies the belief that the roll, if completed, would amount to more than a hundred, whilst there are none, not one to the contrary. These opinions, repeated without contradiction from the birth of the Constitution steadily on down to the present day, amount to a fixed, settled construction, fully as authoritative as an express decision of the Supreme Court. The position of the President and Attorney-general not having been indorsed by a single respectable lawyer, notwithstanding the daily proof that " thrift follows fawning," and Mr. Binney's construction, notwithstanding the great ability of its defence, having so signally failed of acceptance, it would seem to be the duty of all to acquiesce in the old, original construction of seventy years duration, as the only true one. 302 HABEAS CORPUS. In answer to the writer's suggestion that Congress could give all needful power during a suspension to officers ap- pointed by the courts without conferring any of it upon the President, Mr. Binney says : " It is preposterous to suppose that somebody, not the President, may be selected by Con- gress to execute the power." The proof he gives is this : " The doctrine that Congress can in any event choose another Execu- tive when the President is in office is revolutionary." If in- tended as a slap at his Representative, Stephens, who claims the power to appoint a dictator, it is well enough ; but if he means that the conferring such power on inferior officers ap- pointed by the courts, then his reason is ludicrously " prepos- terous." The Constitution having said, " Congress may vest the appointment of such inferior officers as they think proper in the courts," and not having restricted the powers to be conferred on such officers, nothing can be more ridiculously preposterous than that the exercise of such plain power for such purpose is "revolutionary," or that it is equivalent to choosing another President. All that is required to effect the object of suspension is some enlargement of the powers of arrest and detention, with which, ordinarily, the President has nothing to do. They appropriately belong to the judicial de- partment. Yet sudh is his jealous affection for Executive power that he cries out against so small an enlargement of the appropriate power of the judicial department as "revolution- ary," as equivalent to choosing another President. It might well happen that a President will be, if not in league, in strong sympathy with a rebellion, and, therefore, not fit to be trusted with the powers necessary during a suspension. To deprive Congress, in such a state of case, of all right to select any other as the recipient of the trust Avould be a suicidal emascu- lation of the Government. This means of depleting the overgrown, enormous patronage of the Executive should have been resorted to long ago. There is now a pressing need for its immediate application in the mode of appointing the collectors under the enormous tax- bill. The appointment of officers to money trusts should never, when avoidable, be left to political party influence, experience HABEAS CORPUS. 303 having sliown that most of those appointed under that in- fluence become defaulters. The appointment of the col- lectors should be vested in the District Courts, as also that of their supervisors, to whom the collectors should be required to re- port twice, and with whom to make a settlement once a month, subject to the revision of the Auditor of the Treasury. This arrangement, with power in the District Courts promptly to enforce the requisitions of the supervisors, would probably save many millions to the nation. It would also relieve the overburthened President from an irksome duty, which no one knows better than himself it is impossible for him to perform in a manner satisfactory to himself, or beneficial to the nation. Before taking final leave of Mr. Binney, he is entitled to thanks from the conservatives, which the wi'iter will take upon himself to pay in their behalf. He says : " The scope of the Constitution is to protect, defetid, and secure the blessings of lib- erty universally and without exception, unless an exception is de- clared in the instrument." " The power ultimce necessitatis does not exist in this limited Government." These noble words deserve to be inscribed in letters of gold on the capitol, and on every conservative banner in the next campaign against the destructives. They are words that desponding patriots have long, impatiently listened for from him. Let him still wear his proud plume as "head of the American bar." Let not his "flushed covey" attempt to pluck a down from that plume. Let his crotchet about the suspending power pass into oblivion. Let this be no part of his otherwise beautiful biography. Let it not mar his enviably clean epitaph. So long as he adheres to those noble words, he is still worthy to lead our profession when doing its devoir against the higher- law men, the law-of-necessity men, the paramount-law-of-war men, and in defending the Constitution against the traitorous war now waged by fanatics for its destruction. He will aid us whilst teaching the nation, in his own language, that "the habeas corpus is the principal bulwark of liberty," "the great fundamental law of human liberty," and also in teaching the value of " the inestimable right of personal liberty." He will aid us in reminding the nation, in the choice language of the recent incomparable speech of Mr. Thomas, of Massachusetts, 804 HABEAS CORPUS. that " THE Constitution itself is the salus populi, as it is ALSO THE SUPREMA LEX." Mr. Binney is also entitled to thanks for having " flushed and put upon the wing the covey of reviewers from the Phila- delphia bar," which very able covey, it is hoped, have enlisted for the war, and will give the country many other manifesta- tions of such decided abilit3^ It has been the proud boast of the profession, both in England and in this country, that in every contest for liberty it has always led the van, whether in assault or defence. Before folding their wings and settling back into that apathy from which it seemed so difficult to arouse them, will they not do what they can to make that vaunt good in this hour of liberty's utmost need ? "Will they not aid in arousing the profession throughout the country ? Will they not take jurisdiction over that delinquent son of Pennsylvania, her most prominent Representative, and ad- minister justice upon him? It is he who shamed her as much as if she had given birth to an Arnold, a Floyd, or a Twiggs, by being the first native American base enough to immortalize his own infamy, by affirming in the councils of the nation, that Congress has power to appoint a dictator over this free country. Surely the people of Pennsylvania will teach this man the penalty for thus shaming her. Surely they will tell him, that he is the only Pennsylvanian who does not feel and will not say with Shakspeare, "I had as lief not be as live to be in awe of such a thing as I myself," and who would not as " soon brook the eternal devil as a dictator" in this country. A fanatic Senator had the unblushing effrontery the other day to boast in the Senate, that he was not to be tied by the Constitution, that he meant to usurp whatever power he chose to think necessary for carrying on the war. The meaning of which is, that he means to usurp whatever he deems necessary for the accomplishment of his fanatical pui^ose. This worst of all treason, this wilfully perjured treason against the Con- stitution, we shall have to arraign at the great bar of the na- tion, and obtain from the people a verdict of attainder against the traitors. To this traitor an admirable Senator has already administered the following excellent rebuke : " The great question before the world to be now settled by HABEAS CORPUS. 305 US is, can we sustain the integrity of our Government, and perpetuate our institutions, and do it according to the limita- tions and provisions of the Constitution ? That is, to show that our Constitution is competent to the trial, and nothing short of that. K, when this occasion arises, we are compelled to resort to means which, in efiect, are the means used by stronger Governments, our experiment is a failure. If we are constrained to call up, invoke, and put in exercise in any one department of the Government — it is immaterial in what de- partment of the Government — more of power, more of force than the Constitution provides, or than is limited by the Con- stitution — the moment we do that, or are constrained from our supposed necessities to do it, we acknowledge before the world that our institutions are insufficiently founded, and that we are after all compelled, in the period of trial, to resort to the force, which, they say, is necessary to the existence of a nation, and our experiment is a failure. * * * It is vain and idle in us to war against a part of our people because they have made war upon this Government, if we at the same time have to sap the foundations of the Government by stabbing through the vitals of the Constitution. " It will not do to say, that because we need to do this thing, because it is necessary in our judgment, we will do it for that reason. The limitations and prohibitions of power in the Con- stitution were put there on purpose to prevent our doing such things when we wanted to do them. They were not put in to prevent • our doing things we never wanted to do. When it provided, for instance, that you should not pass any attainder bill, that you should not take away any man's property without due process of law, that no man should be punished unless it was on conviction by a jury, that no man should be twice pun- ished for the same offence — prohibitions of this kind are pro- hibitions to everybody, and they were put in to prevent Con- gress doing such things when they wanted to do them. They were put in there on purpose to prevent us doing these things when we thought they were necessary. They were not put in to prevent our doing these things when we did not want to do them, and when they were not necessary at all in our judgment." 39 306 HABEAS CORPUS. Let US defeat these destructives before tlie people. Let us preserve tlie Constitution, and silence tlie jubilant shouts of the despots of Europe, the English press, the English reviewers, and the English speakers, over its supposed destruction, over the supposed failure of the " model Republic. " A last word with Mr. Binney. Tradition tells an anecdote of "Washington in his younger days, which is deemed to fur- nish the highest illustration of true manhood that he ever gave. He was knocked down by a gentleman for an insult he had given. They were parted. Meeting a few days after- ward, and whilst the gentleman was bristling up in expecta- tion of a hard fight, Washington approached him with a smile and an open hand, saying, " Sir, I come to beg your pardon." Should this suggest to Mr. Binney the propriety of an amende toward his conservative countrymen, whatever he offers will be worthy of himself — it will not be less than his active aid in maintaining the verity of his own words : " The scope of the Constitution is to protect, defend, and to secure the bless- ings of liberty, universally and loithout exception, unless an ex- ception is declared in the instrument. The power ultimce necessitatis does not exist in this limited Government." What will not that aid be worth if he suffer his heart to be revivi- fied, rejuvenated to its pristine love for the Constitution — the pure loyalty of an old-time patriot ? The Constitution is in im.minent peril from the war that fanatics are waging for its destruction. It is even in greater peril than the Union. Let us not, in solicitude for the lesser, overlook the greater, the more important danger. We of the profession, the appointed and sworn defenders of the Constitution, should stint no peaceful effort for its preservation. If destroyed now, there can be no rational expectation of restoration. Its death will be without redemption or resurrection ; " no Promethean heat can its light relume." Like violated chastity, after repeated unresisted, unpunished violations of the Constitution, its purity, its loveableness, its sanctity, its claim to affectionate, willing obedience, will be all gone, and gone forever, without even the possibility of restoration. Shame, shame, a thousand shames upon us, if we permit its destruction without manful resistance ! Those of us who have "fallen into the sere and HABEAS CORPUS. 307 yellow leaf" will go on tliroiigli the remnant of our days in despondful mourning to unlionored graves, repeating the de- spairing sigh of the hroken-hearted Roman patriot whilst view- ing the results of dictatorial power: ^^Alas! liberti/, tJiou art but an empty name ! '' Younger men may live in repentance "beneath the legs" of some "huge Colossus" of tyranny, amidst the agony of national trials, to learn the value of that liberty they ignominiously suifered to be destroyed. Ko. in. • ACTS OF INDEMNITY. A brief notice of the hiU 2^endin(j before Congress Deoembkr 17, 1862. Retroactive legislation is the abhorrence of enlightened jurists and statesmen. Unsound in principle, bad in policy, it is almost unavoidably unjust in practice. According to the opinion of many of the wisest, it was the true intent of our constitutions to exclude such legislation under the prohibition against ex post facto laws. It has been an ever-increasing regret that a different construction was originally given by the courts to that phrase. Some of the modern State Constitutions have rectified that construction by expressly prohibiting retroactive and retrospective laws, whilst the courts everywhere have in- dustriously exerted all their ingenuity to restrict them within the narrowest possible limits. In Fletcher vs. Peck (6 Cranch, 135), the Supreme Court said, in reference to a State statute : " It may well be doubted whether the nature of society and government does not pre- scribe some limits to legislative power ; and, if any be pre- scribed, where are they to be found if the property of an indi- vidual, fairly and honestly acquired, may be seized without compensation? * * * To the Legislature all legislative power is granted ; but whether transferring the property of an individual to the public be in the nature of legislative power is well worthy of serious reflection. * * * How far the power of giving the law may involve every other power, in cases Avhere the Consti- tution is silent, never has been and perhaps never can be defi- nitely stated." 308 HABEAS CORPUS. In Wilkinson vs. Leland (2 Peters, 657), tliat court also said : " That Government can scarcely be deemed to be free where the rights of property are left solely dependent upon the will of a legislative body, without any restraint. The fundamental maxims of a free Government seem to require that the rights of personal liberty and private 'property should he held sacred. At least no court of justice in this country will be warranted in assuming that a power to violate and disregard them — a power so repugnant to the principles of justice and civil liberty — lurked under any general grant of legislative authority, or ough to be implied from any general expressions of the will of the people. The people ought not to be presumed to part with rights so vital to their security and well-being, without very 8^row^ a?ic? c^/rgc^ expressions of such intention." * * * "We know of no case where a legislative act to transfer the property of A to B has ever been held a constitutional exercise of legis- lative power in any State of this Union. On the contrary, it has been constant^ resisted, as inconsistent with just principles, by every judicial tribunal in which it has been attempted to be enforced." Judge Story (3 Com., 268) says : " It seems to be the gene- ral opinion, fortified by a strong current of judicial authority, that since the American Eevolution no State Government can be presumed to possess the transcendental sovereignty to take away vested rights of property." If the privilege of the writ of habeas corpus can only be sus- pended by Congress, according to the vastly preponderating opinions of judges and lawyers — nine-tenths at the least — then a violation of that privilege has given the person aggrieved by unlawful arrest or imprisonment a vested right to remuneration against the wrong-doer. Though this right is not property, yet it has an ascertainable pecuniary value, as much entitled to con- stitutional protection as a debt or any visible property. It is dif- ficult to conceive any right better deserving such protection than a freeman's claim to remuneration for arbitrary imprison- ment, in violation of the law of the State under whose pro- tection he lives. According to the express declaration of the Constitution of Kentucky, and the general tenor of all our other Constitutions, HABEAS CORPUS. 309 govei'uments are instituted, among other things, " for the security and protection of property." Whence the power of Congress to take away or destroy tiiis vested right ? Xot from the siturned, repulsed habeas corpus clause. "WTiatever plausibility there might be in claiming it as a supposed incident to the power given by that clause, if it had been acted on, there is no pretext for such claim, when Congress has never suspended the writ ; and there is not, has not been any status of passed Congressional action to evoke the aid of any such incident. The only semblance of power in the Government to reach such past transaction, even collat- erally, is the pardoning power, which is limited to criminal proceedings in the Federal courts. The release of the wrong- doer's liabilit}^ to civil suit is the perfect equivalent, in all re- spects, to the taking the property of A. and giving it to B. Whence the power of Congress to do this ? It is in vain to invoke any implied, auxiliary power, — the ver}' words of the Constitution limiting Congress to the use of such as are not only necessary but also " proper." The authorities quoted show that the courts will never recognize such power as legitimately implied, as proper. In no rationally constructed republican Government can there ever be a right of indemnification to retroact for the purpose of iniquity. The act recently passed the House of Representatives under- takes to release or discharge Federal ofiicers from all criminal liability for the violation of the penal laws of the States, against wrongous imprisonment which they may have incurred by rea- son of the non-suspension of the habeas corpus. Whence the power to do this ? What control has Congress over the crimi- nal jurisprudence of the States ? The pardoning power of the Federal Government does not touch it at all, being confined exclusively to offences against that Government. Besides the whole of that power belongs to the President, and Congress has nothing to do with it, either directly or indirectly. If, according to the President and Attorney-general, what has been done in the matter of arbitrary arrests is by virtue of his Executive power in the exercise of his free discretion, in regard to which he is responsible to neither the legislative nor judicial department, — or if, according to another opinion, 310 IIABEASCOflPUS. Ills power is derived from the habeas corpus clause to the exclu- sion of any concurrent power in Congress, — then he and his suboi'dinates must look to those his exclusive powers for his and their indemnity. Congress can have nothing to do with the matter. Any interference on its part would be not merely usurpation, but supererogation also. K the Constitution au- thorizes his and their acts, it is of itself their most ample in- demnity. Upon this view of the subject the President and Cabinet must have taken their stand. So let them remain. If in this they have committed an egregious blunder ; if their foundation falls from under them ; if they must have a humi- liating fall, so let them lie. Congress can now do nothing for their relief. Theirs will be an instructive and much needed example of the fate of those who ignorantly or wantonly at- tempt usurpation of power over the violated Constitution. In all this matter the motive of the President may have been pure ; it is by no means intended to af&rm that it was not ; but that is not true as to all his numerous subordinates, in their multitudinous arrests and extortions. With the many known instances of outraged liberty perpetrated by those subordi- nates, to give them all indiscriminately the absolution of an undiscriminating act of indemnity would be one of the foulest wrongs with which a party majority ever attempted to degrade a nation in an enlightened civilized era. The passage of such a bill would be an indelible stain on our national annals. The action of the English Parliament, in relieving the min- istry from responsibility for arrests made in anticipation of a suspension of the privilege of habeas corpus, affords no just analogy or proper precedent for this bill. What the Parlia- ment thus does is by virtue of its omnipotent power to modify or alter their so-called Constitution at pleasure. Thank God, we have no such omnipotent power in this country. There the indemnity is absolutely necessary to cure a violation of the law. Here it is altogether unnecessary, if the President has the power independently of the prior action of Congress ; and if he has not, Congress, not being omnipotent, has no power of absolution. Even lenient mercy must be looked for to the breasts of the jurors. HABEAS CO 11 PUS. 311 No. lY. COMMENTS ON THE LATE ACT OF CONGRESS, " RELATING TO HABEAS CORPUS," ETC. Here is the first section of tlie act : " That during the pre- sent rebellion, the President of the United States, whenever in his judgment the public safety may require it, is authorized to suspend the privilege of the writ of habeas corpus in any case throughout the United States, or any part thereof; and when- ever and wherever said privilege shall be suspended as afore- said, no military or other officer shall be compelled, in answer to any writ of habeas corpus, to return the body of any person or persons detained by him by authority of the President; but upon a certificate, under oath, of the officer having charge of any one so detained, that such person is detained by him as a prisoner, under authority of the President, further proceedings under the writ of habeas corpus shall be suspended by the judge or court having issued the said writ, so long as said suspension by the President shall remain in force and said rebellion con- tinue." This is an attempt by Congress to transfer its legislative power over the privilege of the writ to the President ; indeed to transfer more power than it possesses. The suspension of law is its partial repeal, Avhich, to every intent, being a change of law, is as unequivocally legislation as is its enactment. The old familiar principle of the common law that a personal trust cannot be assigned or sub-delegated, has been adopted, and become an axiom of constitutional law also. Courts and commentators all concur, without a dissent, that neither department can transfer from itself to another any of its peculiar, appropriate powers or functions. This is a rule for uniform, perpetual observance, almost without an excep- tion. The alleged valid departures from it are only seemingly such, as will be found upon proper examination. There is no need for going into that examination here for the purpose of tracing the true boundary of the rule, the attempt here being no mere evasion, but a rude, rough effiart to burst through the rule. 312 HABEAS CORPUS. This particular matter, tlie power of suspending this great privilege, affords no pretext for making it an exception, but the reverse. In the opinion of some of the most eminent fathers, it was a fault in the Constitution to allow any suspen- sion of the privilege. Being of such inestimable value, having cost so much in its acquisition, and its suspension being so cer- tain to be abused, with no absolutely certain corresponding benefit, it was supposed best by them for a Republic that, at whatever inconvenience, its non-suspension should be a per- manent, inflexible principle of the Government. Aided by the light of recent experience, the considerate will be far from saying it is altogether clear that this was not the better opinion. The proved inefficiency of attempts to dragoon this nation into unmurmuring acquiescence in an unpopular, impolitic policy of the Administration, with the manifested sensitive national jealousy of everything like arbitrary arrest or imprisonment, gives ample room for the doubt whether the mischief of sus- pension will not always counterbalance its benefits. Though this opinion of those fathers was overruled by the majority, yet its force was felt, and therefore the discretionary power to sus- pend the privilege was deemed such a delicate, important trust as could be confided nowhere but to Congress, and even there only under special restriction. Hence the clause of the Con- stitution : " The privilege of the writ of habeas corpus shall not be suspended, unless when, in case of rebellion or invasion, the l^uhlic safety may require it." The whe7i, the where, the how long, and the how far, of every suspension, is each a delicate trust of great importance — so delicate and important, as to be properly confided alone to the integrity of Congress. As to the when, a need for suspension yesterday or to-day will not justify it prospectively, upon an unascertained or unascertainable necessity, that may arise months or years hence. It must be a present, existing neces- sity, the sufficiency of which Congress must judge. The mere fact of the present rebellion does not create that necessity, or Congress itself would now order the suspension. Its failure to do so is the equivalent of its expressed, deliberate opinion, that there is now no such necessity. There must be a new, very different state of case, before the President ought to make HABEAS CORPUS. 313 tlie suspension under tlie act, according to any presunuible Congressional intention. Before a suspension can rightfully occur, Congress must pass upon that new state of case, and adjudge its sufficiency. If the act had said that, upon the hap- pening of this, that, or the other, there will be cause for sus- pension, leaving it to the President merely to ascertain and proclaim the occurrence of the hypothetical facts, there would have been plausibility in that mode of evasion, because nothing would be left to the discretion of the President in determining the sufficienc}' of those facts. So too as to the where and the lioiv long. A necessity in Louisiana would not authorize a Congressional suspension in Maine, nor a present necessity would not justify a prolonga- tion of the suspension for mouths after the necessity had ceased. The liotv far, like the when, the where, and the hoiv long, is also confined within what the public safety req^iires. A total abrogation, even temporarily, of the privilege of tlie writ for every purpose, was not contemplated, but only for such pur- pose or in such cases as the "public safety" would require. For instance. Congress cannot by its own direct action, so far suspend the privilege of the writ as to debar a father or a hus- band from its use in recovei'ing the custody of wife or child. Yet this is what Congress is attempting to confer on the Presi- dent the power to do. The power to suspend in "any case" is a power to suspend in every case, in all cases. It needs not that the suspension in any particular class of cases shall even tend to promote the public safety. It may have the opposite tendency so plainly as that the President could not pretend ignorance of such opposite tendency, yet by this act he may suspend in such class of cases. It needs not that he should apply the power only to eases of treason, or suspected treason- able intent ; he may equally apply it for the purpose of im- properly abridging the freedom of speech or of the press, or to prevent "a free exercise of religion," or to abridge the " right of petition." This is all wrong; it for transcends Con- gressional power. The object to be attained is the public safety. The means thereto must be " necessarv and proper," 40 314 HABEAS CORPUS. or Congress cannot use them, mucli less authorize another to select them according to his whim or discretion. Here is the English Parliamentary form used in their acts for suspending the privilege of the writ : " Any person that shall be in prison by warrant of his Majesty's privy council, for high treason, suspicion of high treason, or treasonable practices, may be detained in safe custody without bail or mainprise, until," etc. We have no American precedents in that kind, except the bill which passed the Senate in 1807, not merely limiting the suspension to three months, but expressly confining it to cases of persons arrested by warrant of the President, or of a State Governor, charged on oath with treason, or other high misdemeanor endangering the public safety. When the Senate came to devise this bill, its intelligent and very distinguished draftsmen saw at once that the English form would not do here, our Constitution having prohibited the issuing of any warrant " hut upon probable cause supported hy oath or affirmation,'' and therefore confined the suspension to cases of persons " charged on oath." They found it necessary to depart from the English precedent in another particular. Wishing to embrace some of the cognates of treason, instead of using the loose phraseology of " treasonable practices," they said " other high misdemeanor endangering the safety of the United States." Thus loose as their own language was, still they distinctly recognized, as the obvious meaning of the Con- stitution, that the power of suspension only extended to cases involving the "public safety." By the power conferred on the President and Governors of States to make arrests, they recognize the principle that the President has ex-officio power to arrest, even during suspension, and that in confiding the power. Congress was not necessarily, or even appropriately confined to him, but might also confide it to others. It is lamentable that the ruling majority should have been ignorant of these Parliamentary and Congressional precedents, or reckless of their value and importance. Such recklessness destroys public confidence in Constitutional protection, in the rulino" majority in Congress, and tends to create murmuring discontent with the whole Government — a state of popular feelino- especially to be deprecated in times like these, when IIABEASCORPUS 315 the Government needs the hearty, unanimous co-operation of all the people of the loyal States. As the Senate's hill so carefully ignored that part of the English precedent, which emhraces " suspicion of treason," much force is given to the douhts of intelligent men whether any case of mere suspicion could properly he emhraced. But the better opinion is the other way. The Constitution was framed in the light of English precedents and in direct refer- ence to them, as we are compelled to refer to those precedents to ascertain what it meant by suspension of the privilege of the writ. The Constitution, except so far as it has otherwise expressl}' provided, must be presumed to refer to what would then be understood in England from that phraseology. Besides suspicion of crime or intent to commit crime, is ground for arrest and detention at common law. Not arbitrary suspicion, such as an officer may allege merely because he chooses to sus- pect, but one sustained by formal charge, "supported by oath," and resting upon proven facts, which show a " probable cause" for the suspicion. On the hypothesis that suspension is a needful, necessary aid to public safety, a suspicion so sustained furnishes adequate justification for a temporary denial of bail and mainprise to the suspected, in analogy to the English precedent. If Congress could transfer its own discretionary power over the writ, eveiy dictate of prudence, policy, and duty required that it should not be done beyond the actual need of " public safety" in the present or any supposable future emergency. To go beyond that was uselessly to attempt the betrayal of a sacred national trust, there being no conceivable puqDose of national benefit to be subserved thereby, — unless, indeed, that benefit can be found in thus approximating that absolute dic- tatorship, for which some of the leaders of the ruling party avow their predilection as a national boon, and thus habituating the nation to the one-man power. But they should have remem- bered that, notwithstanding their predilection, the great bulk of the people are so besottedly mindful of the teachings of the fathers, as to view such dictatorship with perfect abhorrence and as the fellest doom that awaits our country, little if at all short of national perdition. Such purpose of so habituating 316 HABEAS CORPUS. tlie national mind, furnishes tlie only conceivable mode of res- cuing the measure from the imputation of wanton, purposeless folly. Special limitation of the cases to which the suspension should apply was the more necessary here, because Secretary Stanton, by his order of 8th August last, had directed the arrest ioY punishment by a military commission of all the persons en- gaged in " disloyal practices ; " and the President, by his martial- law proclamation of 24th September, had done the same. If, when there was no legal suspension, they venture the exercise of such fearful power, it might well have been suspected that they would do no less under a suspension authorized by Con- gress, if not expressly restrained. They should have been plainly told what common sense and every enlightened jurist have always said, that martial law was not a necessary or per- missible incident of even a legal suspension by Congress. Power in the Executive to punish was never contemplated in England or this country as an incident of suspension, but merely the power of arrest and detention without bail. It cannot be too carefully inculcated that Congress cannot confer such power, and that the death of a citizen by sentence of a court-martial, under such an order of the Secretary or President, would in the eye of the law be nothing else than plain murder perpe- trated by the President, Secretary, and the members of the court. ITor can the power of detention without bail be used by the Government for indirectly punishing or preventing what it cannot directly punish or prevent, nor for abridging any of the guaranteed immunities of the people. The ruling party ought to have learned from the late elections, that martial law cannot be enforced in the loyal States without great peril of civil convulsion, great danger of armed resistance by the peo- ple. This act should have carefully said all that was necessary to remove public jealousy and apprehension as to any danger of a renewed attempt to enforce martial law in the loyal States. If that ruling party can see no sound policy in any attempt to conciliate rebels, they cannot be so blind as not to see the ne- cessity for conciliating the confidence, if not the affection, of loyalists toward the administrators of our Government. Having attempted to obtain for the President, their party HABEAS CORPUS. 317 cliief, a standing army of tliree hundred thousand negroes ; having obtained for him an army and navy of some eight hun- dred thousand men ; having obtained for him an indefinite supply of money, with a fearful control over the commerce and business of the nation, through the power at will of expanding and contracting the currency ; having obtained for him and his subordinates Congressional absolution for all acts of illegal oppression against private rights ; having acquiesced in, if not ratified, all his usurpation, and made him the oblation of their entire subserviency ; having placed the whole militia under his orders freed from all control by the State Governments ; having obtained for him a conscription act which places every able- bodied man in the nation under his military control ; having allowed his military subalterns to stop the freedom of elections, to overawe and control the ballot-box ; having done so much to strengthen their main reliance, the corrupting influence of po"\A'er and patronage ; having done so much to make him the head of a consolidated imperial government ; having throttled the whole Government and holding the Constitution in a death agony, they lost all remembrance of responsibility and all fear of retribution at the hands of their masters, the people, and thus by a crowning perfidy attempt the surrender to him of the great palladium of liberty, leaving him the uncheckable arbiter of the liberty of every citizen in this great republic. The nation must cast olf the too long indulged lethargic slumber of a pernicious apathy. Whoever prides himself on being worthy the name of an American freeman ; whoever claims a responsive feeling to that noble sentiment of Patrick Henry, which should actuate every patriot, " Give me liberty^ or give me death ;" whoever would "rather die a freeman than live a slave," will need no incentive but the present exigency of our country to do what he lawfully and rightfully may to swell the voice of a grand national protest against the strides of this party to permanent absolute power — to the enslave- ment of our country. There is still great vitality, still much efficacy, in the popular sentiment of this nation. Witness the sudden stoppage of arbitrary arrests and secret imprisonments after the elections of last fall. Every duty to country requires of each citizen his aid in calling forth the free, bold, manly 318 HABEAS CORPUS. expression of that sentiment. Let the nation tell the leaders of this party : If, with the unstinted aid of our twenty millions, you feel incompetent to put down this detested, ever detestable rebellion of five millions, without trampling out om- liberties under the iron heel of unconstitutional military rule, then stand aside, resign your positions, give the people an opportunity to elect men competent to that task, competent to national sal- vation, competent to the restoration of the Union under and by the Constitution. Lack ye still a stimulant to exertion, ye degenerate sons of liberty-loving sires ? then know that at least one of the most talented and influential leaders of this party in Congress has more than once had the impudent efirontery publicly, deliberately to claim a power in himself and his fan- atical colleagues, to give a master to this great nation of free- men — by a dictator of his and their appointing, to supersede the President, and all the other public servants of the nation's own choosing. In the light of this avowal, view and study the acts of this party, ye recreant sons, then hold back if you can. The fourth section of the act attempts to indemnify the Pres- ident and his subordinates against any suit or prosecution "for any search, seizure, arrest, or imprisonment made by his order." Having recently published in the Louisville Journal an argu- ment to prove the unconstitutionality of such an act of in- demnity, and that argument remaining unanswered in or out of Congress, it needs neither repetition nor enlargement. It will suffice for the present to say, that though it has been held the ex fost facto clause does not strictly apply to any but penal statutes, yet it is agreed by courts and commentators, that retroactive legislation is so repugnant to the whole spirit of the Constitution, that it will not be allowed to divest a vested right. A man's legal claim to remuneration for an illegal seizure, arrest, or imprisonment, is as much a vested right as any claim for debt or property. Congress has no more power to release the one than the other. The Federal Government has no power, by way of pardon or otherwise, over the criminal jurisprudence of the States; it can neither nullify their penal laws, nor absolve those who vio- late them. The attempt to do either is mere rank usurpation. The indemnifying acts of England proceed from the omnip- HABEAS CORPUS. 319 otence of its Parliament, and are not, therefore, justifying pre- cedents for our Congress, which lias no omnipotent power, but only such as has been specially granted by the nation. No. V. A REVIEW OF PRESIDENT LINCOLN'S RESPONSE TO THE ALBANY MEETING. It is matter for no little gratulation to every lover of the Constitution, to every loyal patriot, that President Lincoln has thus placed in tangible form before the public what there is of reason, or its semblance, in support of his usurped power to abridge and punish freedom of speech and of the press. It is what he and his advisers in and out of the Cabinet have to present in his behalf at the bar of reason. Let not the flimsy and wholly inadequate character of the reasoning induce an inference of any deficiency in him or them. The fault is not theirs, it is not from any lack of capacity in them to do justice to the subject, for the argument is really as good, just as plausi- ble as any that has been, or can be, made on that side of the question. It is, however, so discursive and unmethodical as necessarily to impart much of the same quality to this brief notice of it. The first noticeable thing which it presents is his seizing hold of the fact stated in one of the Albany resolutions, that the great safeguards to free speech, free press, and personal liberty were adopted into the Federal Constitution after the close of the Revolution, for the sake of making what he no doubt deems a telling retort. He asks whether the demon- stration would not have been better, if it could have been truly said, that these safeguards had been adopted during our Revo- lution, instead of after its close. During the Revolution they could not have been so adopted into the Federal Constitution, for it then had no existence ; but those safeguards were taken almost verbatim from the Constitutions of several of the larger States which were made during the actual pendency of the Revolutionary war, and for the rule of government in an actu- ally existing civil war. As an exposition of the views of the framers of the Constitution, as a revolutionary authority to 320 HABEAS CORPUS. prove that those safeguards were specially meant for times of war and civil commotion, the precedents from the Constitu- tions of those States are fully as authoritative as if the Federal Constitution itself had been adopted during the Revolution. To escape from those safeguards, he asserts that the military arrest, trial, and banishment of Mr. Yallandigham, was not a holding him to answer for a capital or otherwise " infamous crime," nor were the proceedings against him a "criminal prosecution." The effrontery of mere denial cannot go be- yond this. "What classification must a crime belong to which is not infamous, yet justifies its punishment by close imprison- ment for life, according to the sentence of the court-martial, or to banishment for life, according to the illegal alteration of the President ? He does not tell us, and ingenuity will waste its astuteness in any effort to ascertain. The whole burthen of his attempt to justify the punishment is by affirming that the speeches of Mr. Vallandigham were aiding and assisting the enemy, or, in other words, were ^wase treasonable — at least, they were the perpetration of moral treason. There being no legal punishment, as he wrongfully affirms, for the supposed offence, he makes the absence of all such law the very founda- tion of his claim to inflict the punishment. The Constitution having carefully defined treason, and precluded that engine of tyranny, constructive treason, and Congress not having, as he alleges, provided any penalty for such an offence, he under- takes, ex 'post facto ^ to create this new constructive treason and punish it by a penalty of his own enacting. Verily, Mr. Lin- coln, this is sad work you are making with our Constitution, if you prove that it gives you such latitudinous discretion to tyrannize over the liberties of your countrymen. As to his denial that Mr. Yallandigham's persecution was a " criminal prosecution" within the meaning of the Constitution, it must astound every man of sense. There is no denying that it is a criminal prosecution of some sort, and of course must fall within the broad, comprehensive prohibition of all prosecu- tions, except those legally made with the aid of jury trial. The only exception is that carefully made by the Constitution itself for the punishments, by military courts, of persons employed in the military service, the making of which exception conclu- HABEAS CORPUS. 321 sivcly proves the intention to exclude any other. The tneory of the Constitution is, that it is far better crime shoukl go un- punished, than that its punishment should be entrusted to anybody but courts and juries. The recent glorious meetings of the people to protest against the punishment of Mr. Vallan- digham show that such is the national understanding, with a fixed resolve not to be robbed of their liberties by a destruc- tion of the Constitution. Mr. Lincoln should take heed how he disregards this national sentiment, or he may have a civil \yar at the IlTorth, in addition to that at the South. The Constitution says, " excessive bail shall not be required, nor cruel and unusual punishments inflicted." What say you to this safeguard, Mr. Lincoln ? You cannot deny that the punishment you have inflicted here, for the exercise of free speech, is unusual, nor can you properly deny that it is cruel also, or if you do, then it can only be by affirming that the punishment is barely commensurate with the heinousness of the offence. But if such be the character of the offence, then what becomes of your other plea, that it is not an "infa- mous crime." If this newly invented crime, this constructive treason, is so thinly divided from actual treason as in foro conscientioe to require so dire a punishment as life-long im- prisonment or banishment, it surely must be an "infamous crime." As actual treason is by common consent the most infamous of all crimes, all its proximate congeners, such as this, must partake largely of that infamy. Your countrymen generally give you credit for doing all you could, by your usurped legislative and judicial authority, to brand Mr. Vallan- digham and his children with the infamy of a convicted traitor. Without reference to the personal hardship of such a sentence, with right-minded men such damage to character is an infa- mising punishment ; and, such being the punishment, the crime if so punished, must be " infamous " also. It was precisely to prevent such oppression in time of war or civil commotion, by party majorities in Congress or by party chiefs in the Presi- dential chair, that those safeguards were placed in the Consti- tution. Mr. Lincoln adopts and bases his defence mainly upon the flimsy dogma that the Constitution was made for peace and 41 322 HABEAS CORPUS. not for war — tliat new and "weak invention of the enemy" to civil liberty. He relies upon that clause of the Constitution giving Congress power to suspend the privilege of habeas cor- pus " when, in case of rebellion or invasion, the public safety may require it." This, he says, " attests the understanding of those who made the Constitution, that ordinary courts of jus- tice are inadequate to cases of rebellion — attests their purpose that in such cases men may be held in custody whom the courts would discharge." This is sound doctrine ; but whence does he receive the power to ex post facto, or otherwise to cre- ate a new criminal offence and punish it at his discretion, with or without the instrumentality of a court-martial of his ap- pointing ? The two things are altogether different. The peo- ple are accustomed to seeing men arrested and held to bail upon mere suspicion of unprovable crime, and it is but a small stretch of the same policy to allow their arrest and temporary detention without privilege of trial in time of public danger. Public necessity may require, sound policy may allow thus much, but nothing more. It is a wide stretch beyond this for the military to undertake to punish as well as arrest. This the Constitution nowhere allows, but expressly forbids. The clause referred to, so far from sustaining the detestable dogma, tends very strongly to its disproof, according to the sound rule of construction that expressio unius est exclusio alterius. The Constitution having given Congress discretion to suspend the exercise in one particular instance, no other, during war or re- bellion, of one of the functions of civil authority, is demon- strative proof of two things, either of which utterly annihilates his whole argument. First, that such suspension must not be carried beyond that particular instance ; second, that the Con- stitution was made for time of war or rebellion, as well as for time of peace, otherwise there would have been no need for the habeas corpus clause, for without it, according to the dogma, the Executive would have had unstinted power both to arrest and punish. The Constitution gives the Government power to declare war, and provides for its being carried on — it con- templated rebellion, and authorizes its suppression — yet, ac- cording to the dogma, was not made for time of war or rebel- lion ! There are other instances in which the Constitution HABEAS CORPUS. 323 trenches on the reserved rights of the citizen during war or rebellion, and going to show that its framers had the occur- rence of those junctures full in view as likely to fall under its sway : First. " No soldier shall, in time of peace, be quartered in any house without the consent of the owner ; nor in time of war, but in a manner to be prescribed by law." Now, accord- ing to Mr. Lincoln's logic, this clause attesting as it does the understanding that the citizen was not entitled to the same perfect immunity from arbitrary requisitions during war as in time of peace, there was to be one mode of law for war and another for peace, and therefore the Government may, during war, make what arbitrary requisitions it pleases, — that is, take a farmer's crops or horses without "just compensation." Second. " No person shall be held to answer, etc., except in cases arising in the land or naval forces, or in the militia when in actual service in time of war or piihlic danger.'' Here, by neces- sary implication, the military, are authorized to take cognizance of, and punish offences by specified persons in time of war or public danger, which, according to the same logic, authorizes them to punish all persons, — that is, a clause expressly intro- duced for the purpose of preventing the military from punish- ing anybody, except those engaged in the military service, is construed to give power to punish everybody, whether so en- gaged or not. This effectually runs the argument into absurdity, and there it will be left. Mr. Lincoln says that Mr. Yallandigham " was laboring with some effect to prevent the raising of troops ; to encourage de- sertions from the army ; and to leave the rebellion without an adequate force to suppress it;" and furthermore, that if this be not true, then he was improperly arrested and punished. "Well, this is not true. So far from it, he in Congress did not vote against the men and money the President asked, and said not one w^ord in the speech for which he was punished, to pre- vent the raising of troops, or to encourage desertion from the army. If he had done both or either, then he would have come within the act of Congress defining and punishing the offence, for which he could and certainly would have been adequately punished by the courts ; so that, according to Mr. Lincoln's own worst showing, there was not even the miserable pretext 324 HABEAS CORPUS. of public necessity for liis punisliment by the military. If, by a circuitous course of ratiocination, lie means to contend tbat every speech made in opposition to the justice and policy of the war in some slight degree tends to discourage enlistment and encourage desertion, then to that extent there is semblance of truth in his affirmation, otherwise there is none. But such slight prejudice to a vigorous prosecution of the war is but an unavoidable incident to the exercise of free speech, and is alto- gether of too problematical and trivial a character to induce the nation to acquiesce in the suppression of that inestimable right, — a privilege which Chatham, Burke, Fox, and others, illustrated iji strains of ever-living eloquence, whilst freely and repeatedly denouncing the war against this country during our Revolution, as impolitic, unjust, cruel, and unchristian, — a priv- ilege which the noblest patriots of England have freely exer- cised for the last hundred and fifty years, during almost every war in which England has been engaged, — a privilege which the whole Federal party, in and out of Congress, exercised with almost ferocious license during the whole of our last war with England, — a privilege which Mr. Lincoln himself, in company with very many other "Whigs, freely exercised during our war with Mexico. If President Polk had arrested him and other Whig leaders, and kept them imprisoned during the war, in punishment for their use of the privilege, he and they, to- gether with the whole country, would have deemed it a gross, tyrannical violation of their rights, as American freemen. Mr. Lincoln wishes to make it a damaging point against Mr. Yallandigham, because he has always been opposed to a war of invasion against the South for its subjugation into submis- sion. Whether viewed as fault or error, or both, it is one by no means peculiar to him, but equally belongs to at least one distinguished abolition friend of Mr. Lincoln, and with which he himself and his whole Cabinet were equally imbued so late as April, 1861, when Mr. Seward wrote to our ministers in Eu- rope that the Administration had definitely decided against the policy of such a war, and that there was no one in its favor. Now, though it is undoubtedly permissible for Mr. Lincoln and his Cabinet to abjure and change so vital a policy, yet surely it is equally permissible for Mr. Vallandigham to adhere to an HABEAS CORPUS. 325 opinion wliicli originally so identically coincided with theirs. Such coincidence should at least have the effect of exempting him from all blameworthiness in their estimation. Yet this is one of the specified grounds of his punishment. It is so em- phatically, because it presents the only substantial ground of distinction between him and those distinguished abolitionists who, with impunity, have been allowed to say and speak more than ever he did in di8j)aragement of the capacity and trust- worthiness of the Administration — more to bring it into odium and disrepute. Notwithstanding this, Mr. Lincoln solemnly affirms that the punishment of Mr. Vallandigham was not at all " because he was damaging the political prospects of the Administration;" or, in other words, that his punishment was not at all influ- enced by party feeling. This affirmation was much needed, and will afford matter of gratulation and consolation to all those who can give it full credence. It is not meant even to insinuate here that it is not entitled to the fullest credence ; l)ut it is a fact of great importance that a large part of the nation, possibly a decided majority of even our Union-loving citizens, give it no credence whatever. Certain it is, that the great Democratic party believe, as they say, with unanimity, that the main reason for his punishment was because of his being a Democrat. However calumnious such an imputation may be, yet Mr. Lincoln and every member of his Cabinet ought to have had the sagacity to foreknow that such would be the result of his persecution ; that such result would be very damaging to the Administration, vastly more so than the speeches of a hundred such men. Every principle of policy, every dictate of common-sense prudence, forbid the persecu- tion. Yet for some inadequate, undivulged reason, the perse- cution has been indulged in — the consequence being, that, notwithstanding the many objections to his peculiar notions in politics, and especially his very foolish vagaries as to the mode of stoppirg the war and obtaining peace, the Adminis- tration will make him Governor of Ohio by the vote of a very large majority of its enlightened, patriotic people. As much as such a thing is to be deprecated, j^et it is useless for us to disguise from ourselves the fact that this Administration has 326 HABEAS CORPUS. equally in its power, by a similar act of folly, to make him our next President ; that is, by his incarceration after he is elected, to prevent his filling the office of Governor. "Whoever will recollect the immense run which the cry of " Wilkes and liberty' had throughout all England will see nothing overstrained or fanciful in this conjecture. This essay has already been protracted to an unanticipated and improper length, but having said what has been said in disparagement of Mr.Vallandigham's views of national policy, it will not do to close it without according him some portion of his well-earned meed of praise. In the estimation of a ma- jority of the heart-devoted lovers of the Union, of whom the writer claims to be one, his loyalty stands pure and unsoiled ; he is not merely the equal in point of loyalty of Mr. Lincoln or any member of his Cabinet, but in all the higher attributes of an enlightened patriot he is decidedly their superior. Ac- cording to remembrance, he has never, in his many speeches, given utterance to a single disloyal sentiment. But, to his eternal honor, he has signalized his patriotism by a chivalric defence of the Constitution against Congressional and Presi- dential usurpations. For long he stood manfully forth like another Bayard, almost single-handed, doing battle against a host in defence of civil liberty. There are few true patriots who, whilst they may forbear to envy, cannot forbear to admire the proud position he has so well earned for himself in history. In his reference to the case of General Jackson at New Or- leans, Mr. Lincoln says Congress thirty years after approved his martial law and proceedings under it. This is a mistake. The fine was refunded not in consideration of such approval, but in despite disapproval, and in consideration of his great public services and his alleged then need of money. His friends in preparing the refunding bill, to secure its passage took special pains not to say one word in the preamble in his approval, or in disapproval of the judge who inflicted the fine. But on the contrary, the Judiciary Committees of both the House and Senate made reports in strong condemnation of the pretended power to declare martial law. Mr. Lincoln ought to have remembered to state, that in addition to the cotemporaneous decisions to the same effect of the District Court of the United HABEAS CORPUS. 327 States and of tlie Appellate Court of Louisiana, the very court- martial that Jackson selected to try Louallier unanimously de- cided in the same way, and that they had no jurisdiction to try a person not engaged in the military service. Mr. Lincoln says, " nor does any one question that the Con- stitutional safeguard will, after the rebellion, stand the test" for much longer than they have yet done. This is a terrible mis- take. The very reverse of the proposition is nearer the truth. There are very few men of historical information and intelli- gence who do not so question, who do not live in awful appre- hension of the hour when our enormous army shall be called upon to disband. There is no worse moral treason than the advice to let the Constitution sleep during the war, under the chimerical belief that it will awake in full vigor after peace. Such a sleep is one that "will know no waking." All history affords no example of the resurrection to new life of the Con- stitution of a republic, after it has once been trampled out by military power. The fathers warned us that military despotism was the prob- able if not necessary result of just such a war as is now going on. It seems, from the action of the recent great mass meeting in Illinois, that the people have taken the alarm, and are urging a speedy peace, from fear of and in avoidance of this and other dangers to our liberties. It is much to be feared that the split in the North, caused by Mr. Lincoln's improper measures, will precipitate us into an improvident and improper peace. No. VI. FURTHER REMARKS ON PRESIDENT LINCOLN'S RESPONSE TO THE ALBANY MEETING. The extraordinary response of Mr. Lincoln to the Albany meeting deserves much more extended comment than could be given in the previous essay, or than can be properly intro- duced here. He substantially, nay literally, unequivocally claims the rightful power to suspend during this rebellion, anywhere and everywhere in the loyal States, even those untouched by the actual presence or near approach of war, all the constitutional 328 HABEAS CORPUS. " safeguards " of liberty, whenever and wherever lie may choose to say it is required by the public safety. Accompanying this he claims the rightful power to arrest and punish as he pleases any one of the twenty millions of free people inhabiting those loyal States, for anything he may choose to say is contrary to the public safety. This, too, when properly understood, with- out even the nominal agency of his courts-martial. For as the rules and articles of war give such courts jurisdiction over none but persons engaged in the military service, all the authority they have to try or punish other persons must be derived from him, and consequently he could as lawfully confer the same authority upon a provost marshal, or any other citizen he may iind willing to obey his illegal mandate. In the face of this bold, frank avowal of such a preposterous claim of power, we find men of intelligence, to whom the taint of patronage cannot be imputed as their principal motive, ad- vising to let the Constitution sleep during all of this probably long war. The people cannot be too often, or too earnestly, warned against such pernicious advice. The Constitution should be kept from such sleep, with the vestal vigilance that should guard the sacred flame of national life, which must never go out. If suffered to go out, the certain doom of Amer- ican liberty is death, without resurrection. Such resurrection is wholly unknown to the history of republics. With a President, backed by a million of armed men, and two billions of patronage, publicly claiming the power to sus- pend the nation's right to free speech, free press, and jury trial, that he may punish who he pleases, and as he pleases, under the pretext of the public safety, we may cease to wonder at that daily increasing manifestation of popular alarm, as at a near and fearful danger to national liberty. ]N"or is this all the cause for such alarm. Many officers of the arm}^, including some of high rank, have had the insolent frankness to pub- lish their intention of returning N'orth after peace, and with the iron heels of their soldiers to " crush the heads" of North- ern Democrats. This published threat has recently been formally and deliberately reiterated by the man placed at the head of all our armies. Such an insult to the whole nation should have been promptly redressed by ignominious expul- HABEAS CORPUS. 329 sion from the army of that man, and all others so ofiending. But nothing of the sort has been done, nothing of rebuke even to that man, who has evinced so little competency for his posi- tion that his dismissal would cause little reOTet in or out of the army. "Why is nothing done to allay the nation's fear, that the infamous purpose of these men has the sympathy, if not the sanction, of the President ? But, however that maybe, all know he would prove perfectly impotent toward their re- straint. Even should he then still be President, his influence or power of restraint would not be worth a straw. Still fur- ther, the nation sees the rapid enrolment of a standing army of negroes that Congress has authorized the President to raise to an indetinite number, and for an indefinite time. iSTothing can be more perilous to our liberty than such a standing army, officered by men mean enough to accept commissions in it. Increase it only to the three hundred thousand authorized by the bill, which the abolition party passed through the House of Representatives at its last session, and the nation will be perfectly at the mercy of any part}^ having control of such an army. It is sufficiently trying to the national patience to witness the corruptions in the expenditure of public treasure, the bung- ling waste of men and means, without having it strained by such threats from our officers as the promised outcome of all the nation's sacrifices, — an outcome, after the rebellion is sub- dued, which promises, if not a military despotism in perma- nency, at least all the horrors of another reign of terror, under the sanguinary rule of soldiers, a negro army included. Surely Mr. Lincoln must be the only President we have ever had who would permit these officers to make, with impunity, such infamously treasonable threats against the people whose servants they are, whose pay they receive, and with whose mo- ney they are clothed and fed, — threats made for no cause but the manly expression of opinions, now proven to be in accord- ance with those of majorities in five, six, or seven of the largest States, constituting a large majority of the loyal part of the whole nation. Dead, indeed, must the American heart be to every liberty-loving pulsation, when such things shall not arouse it with the salutary fear of a great peril, when it shall 42 330 HABEAS CO E PUS. not indignantly resent such treasonable insolence on tlie part of its military servants. Let us not be surprised at the daily increasing impatience at the continuance of the war. The great need of the hour is to restrain that impatience, lest it precipi- tate an improvident peace. The vp-ay to restrain it, is to soothe popular feeling by removing the causes for such alarm. No man could well have a more flattering manifestation of national trust and confidence than had Mr. Lincoln up to that evil hour when, submitting to the dictation of a fanatic faction, he issued his martial law and abolition proclamations. Those ill-advised, disastrous proclamations have failed as to every one of their real or imputed objects. They have caused no slave insurrection ; they have not terrified the South nor alarmed the North into abolitionism or tame acquiescence in the sus- pension of all the safeguards of liberty. All that they have accomplished has been to give him a divided North, with which to contend against a united South. The hopelessness of such a contest ought to be apparent to him and every member of his Cabinet. It may not be too late, and every dictate of patriot- ism requires that he should promptly endeavor to reobtain national confidence by undoing what has caused its loss. There is no use in trying further the intimidation policy. lie and his Cfabinet, with all military ofiicers, ought to be satisfied by this time that the nation cannot be bullied into permissive destruc- tion of the Constitution and consequent loss of liberty. In addition, he ought to be told, by those in whom he has confi- dence, what possibly he does not himself know, and what his Cabinet will not tell him, but what nevertheless is notoriously true : that is, that the odium toward the fanatic faction, with which he is allied, is a weight which would break down any Administration, even if composed of the ablest and most popu- lar statesmen the nation has ever produced. From their full participation in the crime of instigating the present rebellion ; from their avowed hate of the Union and the Constitution ; from their avowed disregard of all those obligations which influence the conduct of patriots ; from their ferocious pursuit of their demoniac hatred against the Southern people by indiscriminate massacre, they have brought themselves to be viewed as devoid of a Christian, or what may be termed an American, moral HABEAS CORPUS. 331 sense, and by at least tliree-tbiirtlis of the wliole nation Avith a perfect abhorrence. With a word lie can crush them into ap- j)ropriate insignifieance. Insignificant they are in point of numbers, and would be equallj' so in point of influence, but for their supposed control over him. Let him emancipate him- self from their thraldom, give also some reliable guarantee that for the future he will administer the Government under the Constitution, and all may yet be well. Let him fail to do this, let him fail to conciliate that host of Union-loving citizens who arc daily flocking to the Opposition standard, and his Secretary of the Treasury can tell him that there is great danger of his being starved into a peace before six months for want of money to carry on the war. It is sheer madness, the most reckless folly, not to say positive wickedness, in him to carry on the war upon a policy or in a manner contrary to the wishes of a majority of the people of the Korth, provided he believes such to be their wishes. If he does not so believe, then those who have access to his ear ought to inform him, in the necessary performance of a great duty they owe their countr}-. Mere pecuniary self-interest will not command much of the seven or eight hundred millions on permanent loan required to meet the expenses of the ensuing fiscal 3'ear. The main reliance of the Secretary must be on the eflicacy of an appeal to the undivided patriotism of an undivided ISTorth. It needs but a small por- tion of Mr. Secretary's sagacity to assure the President that collision with even the prejudices, much less the guaranteed rights of the people, is not the way to procure unanimity and secure the success of such an appeal. There is another matter of policy in the conduct of the war, not sufficiently dwelt on in public discussions, and to which too much attention cannot be paid. It is the policy enunciated and so lucidly vindicated in that ablest of our State papers, the message of Governor Seymour, — a State paper which, for ability and importance, ranks among the very ablest that the nation has ever produced, and places him at the head of our living statesmen. The policy alluded to is, that in prosecuting the war for restoration of the Union, coercion and conciliation should go hand in hand. This is commended for adoption not merely because it is just, but also as the only policy by which 332 HABEAS COEPUS. restoration can possibly be eifected, or at least tlie only policy wbicb, after the war is over, will leave tlie two sections in such a state of feeling toward each other as to render restoration very desirable. Yet this ruling party has done nothing tend- ing that way. Their every measure has been the . very opposite of conciliation. Nothing will be said here about the abolitionizing of the war. That is, perhaps, past remedy dur- ing Mr. Lincoln's term ; for it is a subject about which he will not now even patiently listen to remonstrance. But there is another, in which every American who cherishes the honor of our country has a deep interest, and in which Mr. Lincoln, personally, has a much larger interest than any other citizen. The allusion is to the wanton destruction, by our armies, of private property in the South. If private information and the boastful letters of newspaper correspondents can be relied on, our armies are making a broad track of desolation wherever they move. This, too, for the avowed purpose of starving women and children, and other non-combatant inhabitants. That this is contrary to the well-established usage of civil- ized warfare is well known to Mr. Lincoln and every member of his Cabinet. Even the literary General, who seems to en- joy so large a share of the President's confidence, is said to have proved this, in his book on the law of war, beyond cavil by an uncontradicted array of authorities. Mr. Lincoln cannot reasonably be supposed to seek any rivalship in that infamy with which history has loaded Louis the Fourteenth for his devastation of the Palatinate. But let him take care lest he be placed still higher on that bad eminence. Louis was warring against a foreign enemy, whilst he is warring against his countrymen. Louis devastated a foreign State, whereas the armies under Mr. Lincoln's control are devastating his own country. Suppose that, in retaliation, the Southern armies should pursue a similar course in all their invasions of the North. The next step, and an early one too, will be the hoist- ing the black flag on both sides. This will afford that occasion for intervention for which England and France are impatiently awaiting. The moral sense of all Europe will sustain them in putting forth their whole strength to stop such a war. The "higher law" of the great brotherhood of Christian nations HABEAS CORPUS. 333 will not permit sucli a war to be waged. With sucli an inter- vention against ns, every man of sense will see the utter im- practicability of our sul)duing the South into submission. Blockade its ports, destroy all its commerce, let its soil become the theatre of war, and even doughty New England wouM soon cry loudly, yea, most piteously, for peace on any terms. If the claims of justice, of humanity, of the law of nations, have not sufficient restraining influence against such a policy, yet the obvious great danger of its pursuit proves it to be a short-sighted bad policy that ought at once to be abandoned. The licentiousness of our soldierj^, if the fault be there, should be restrained by the most stringent orders to our Generals. N'o one knows better than Mr. Lincoln that, outside the feel- ings of mere patriotism, there is no reason so strong with the people of the I^orthwest, for desiring a restoration of the Union, as the reopening of that bountiful Southern market, with which they have so prosperously dealt. A desolated South cannot furnish that market. This they well know, and, as he ought also to know, they will not sanction a policy of desolation or extermination as a means for suppressing the rebellion. If the Union cannot be saved but by the use of such means, they will adopt the Yankee motto and say, " let it slide." The entire destruction of the thing contended for, can never be true policy in a war for its acquisition. So, also, Mr. Lincoln and his Generals may rely, that the loyal part of the nation will never consent, in avoidance of territorial disintegration, to governmental consolidation, or any form of imperial power. They will not consent to let the Constitution sleep during a long war, merely to try whether the party in power will be honest enough to let it wake again. It is not intended to impute to iSIr. Lincoln personally, the intention of enslaving his white countrymen for the sake of emancipating the blacks. A majority of the nation would probably relieve him personally from such an imputation, however justly his party may be supposed to have earned it. It may be mere ignorant recklessness, in the pursuit of his mad scheme of immediate emancipation, which induces him to place the permanent liberties and well-being of his country in such imminent peril. With his party it is different. Their 334 HABEAS CORPUS undisguised policy is, coute que coute, tlie anniliilation of slavery, or tlie annihilation of the South. Recreant as they have proved to their most solemn pledges, in and out of Congress, and re- gardless as they avow themselves to all duty of affection or olbedience to the Constitution, the nation may well suspect them of an intention never to permit power to pass peaceably from their hands. Mr. Lincoln's own patriotism may soon be brought to the test. The theory of our Government, much more even than that of England, requires that in time of war, especially of civil war, the Administration should act in accord with the national sentiment. Its success can be attained in no other way. To attempt it even would be either mere insanity or the worst wickedness. Should the recently elected House of Represen- tatives, the immediate representatives of the national will, pass a vote condemning his policy, and Mr. Lincoln does not there- upon either resign or change that policy, all men will know full well what to think of his patriotism. The English Consti- tution, no more than our own, makes it illegal for an Admin- istration to hold on to power after a vote of want of con- fidence by the representatives of the people. But an immemo- rial usage, based upon obvious policy of necessity, makes resignation an imperative necessity in England, as much so as if it were an express part of the Constitution. So also must ultimately be the rule here. Any President or Cabinet attempt- ing to frustrate the adoption of such a rule here would be as inevitably crushed by popular odium in this country as would be a Ministry in England for refusing obedience to the rule. CONFISCATION AND ATTAINDER. 33{ CHAPTER XVII. Februart, 1862. CONFISCATION AND ATTAINDER. 1^0. I. "^?? legislative powers herein granted shall he vested in Congress. The Executive power shall be vested in a President. The Judicial 2J0wer shall be vested in one Supreme Court" etc. — Con. U. S. " The powers of the Government are divided into three dis- tinct departments, and confided to separate bodies of magis- tracy. It is of the hist importance to the purity of our insti- tutions that this division of powers shouki be preserved, and this barrier against the encroachment of one department upon another shouki be properly kept up." Gaines vs. Buford, (1 Dana, 505), decided in 1833. So also has it been held by the Supreme Court and all the State Appellate Courts. " To enjoin what shall be done or what left undone, and to secure obedience to the injunction by prescribing appropriate penalties, belongs exclusively to legislation. To ascertain a violation of such injunction, and inflict the penalty, belongs to the judicial function." " So far as the act in question undertakes to divest Gaines of his title and vest it in the State, it is a legislative infliction of the penalty; it is an assumption to that extent of judicial magistracy without affording the accused the benefit of those forms and guards of trial which are his constitutional right whenever a citizen is sought to be punished, either in his per- son or by forfeiture of his property, for alleged violations of the penal enactions of the State. The right to forfeit is merely an incident of the power to punish guilt. Without the guilt the forfeiture cannot be incurred. The guilt cannf»t be ascer- 336 CONFISCATION AND ATTAINDER. tallied by the Legislature, nor otherwise than hy a direct crimi- nal procedure of some sort, and a judicial determination there- on. — (1 Dana, 506, 510). "iVo bill of attainder shall he -passed.'' "iVb State shall pass any hill of attainder.'" — Con. U. S. " Bills of attainder are said by "Woodson, in his lectures, to be acts of the supreme power pronouncing capital sentences where the Legislature assumes judicial magistracy, and hills of pains and penalties those which inflict milder punishments. But it is believed that hill of attainder is a generic term, com- prehending both description of acts. Such, at least, is believed to be its true signification, as used in our Constitutions. Thus it is said by the Supreme Court in Fletcher vs. Peck (6 Cranch, 138) : 'A bill of attainder may affect the life of an individual, or may confiscate his property, or both.' So, also, it is said by Judge Tucker, in his edition of Blackstone, vol. 1, page 292 : ' Bills of attainder are legislative acts passed for the especial purpose of attainting particular individuals of treason or felony, or inflicting pains and penalties beyond or contrary to common law.' That the term should be received in the large sense thus given to it, is consonant with the true republican character of our institutions. A condemnatory act of the Legislature in- flicting upon an individual, or class of individuals, pains and penalties is as much within the reason of the prohibition as if it inflicted capital punishment. They are both equally hostile to the principles of civil liberty and the spirit of our written Constitutions. They are equally engines of tyranny and op- pression — equally unsuited to the Government of a free peo- ple."— 1 Dana, 509. Bills of attainder have generally designated their victims by name, but they may do it also by classes, or by general des- cription fitting a multitude of persons. Either mode is equally liable to moral and constitutional censure, l^ov will these suggestions be answered by the obvious difiiculty, if not im- practicability, of enforcing forfeiture by direct criminal pro- ceedings against such a host of unknown delinquents. If the power attempted to be assumed is a wholesome one, and was wisely, equitably executed in this instance, it will be a matter of regret that other and higher considerations induced the C X F I S C A T I X AND ATTAINDER. 337 framers of the Coustitution to withhold from the Leirishiture the power of giving such wholesale, summary redress. If, on the contrary, the existence of such power would be noxious to the common weal, and in this instance its exercise was oppres- sive, unwise, and unjust, then it will be matter of gratulation that the wisdom of the Constitution has secured the commu- nity against such extensive oppression, and that the very ex- tent of the evil intended is a security against its perpetration. But with this we have nothing to do. The validity of the act must be tested without regard to those qualities." — 1 Dana, 510—512. Judge Story (3 Com. 211), speaking of bills of attainder, says : " The injustice and iniquity of such acts, in general, constitute an irresistible argument against the existence of the power. In a free Government it would be intolerable ; and in the hands of a reigning faction, it might be, and probably would be, abused to the ruin and death of the most virtuous citizens. Bills of this sort have been most usually passed in England in times of rebellion, or of gross subserviency to the crown, or of violent political excitements ; periods at which all nations are liable (as well the free as the enslaved) to forget their duties, and to trample on the rights and liberties of others. During the American Revolution this power was used with a most unsparing hand ; and it has been a matter of re- gret in succeeding times, however much it may have been iii>- ■plauded fiagrante belloJ" This view of justice and policy has received our national corroboration, and the repugnance of enlightened modern legislation to confiscation in punishing crime has been amply illustrated. Congress has never yet so used its power to punish treason, and it is believed that every one of our States has abolished that forfeiture of estate which was the common law incident to attainders for every other sort of felony. Vengeance, not policy, must be the ruling motive in any attempt to con- fiscate the estates of five millions of rebels. "Xo person shall be held to answer for a capital or other- wise infamous crime unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia when in actual service, in time of war 43 338 CONFISCATION AND ATTAINDER. or public danger ; nor shall any person he deprived of life, liberty, or property, without due process of law ; nor shall private property be taken for public use without just compensation." — Con. U. S. Without due process of law, or the equivalent phrase, hy the law of the land, means, according to Lord Coke (2 Inst., 50), " so that no man be taken, imprisoned, or put out of his free- hold without indictment or presentment of good and lawful men," etc., etc. "Against this ancient and fundamental law of Magna Charta," says he, "I find an act of Parliament made, that justices without any presentment or finding of twelve men, upon a bare information, should have power to hear and determine all offences committed against any statute. By color of which act," shaking this fundamental law, it is not credible what horrible oppressions and exactions, to the undoing of in- finite numbers of people, were committed throughout England by Justices Empson and Dudley." Such, also, is the signifi- cation given to those phrases by the most eminent American jurists. See 2 Kent's Com., 10 ; 3 Story's Com., 661 ; and 1 Tuck. Bl'k. 304. The inference is, that no man can be divested of the right or title to his property by mere legislative action, without the co-operation of a regular judicial investi- gation and condemnation. It being the unanimous concession heretofore of all parties, abolitionists alone excepted, that Con- gress has no power of emancipation within a State, it would be doubtful whether Congress could, in any mode, affix eman- cipation as a penalty for the treason of a slave owner ; but even if Congress had such power, when pursued in a legitimate manner, it would still also follow that its sole action, proprio vigore, without judicial co-operation, could never emancipate the slaves of rebels or traitors. Another reason why Congress cannot emancipate slaves : It has always been conceded that Congress cannot interfere with the municipal regulations of a State, at least with such of its laws as define what shall be property, or direct how it shall be conveyed or managed. All the slaveholding States have very special regulations as to emancipation, built upon the policy of preventing an undue increase of free and pauper negroes. This policy the Federal Government can in no way interfere CONFISCATION AND ATTAINDER. 339 witli. If it becomes the owner of slaves, as it legitimately may in various ways, it must hold as all other owners of property do, subject to the law of the State, which precludes the eman- cipation of slaves otherwise than in the mode pointed out for other owners of such property. This is practically illustrated by the requisition uniformly made of a renunciation by the State of its right to tax any real estate the Federal Govern- ment is about to buy for national use. Whether the policy be right or wrong, which restrains a slave-owner's right of eman- cipation, because the unfettered right might cause a public nuisance or injury to similar property of other owners. Con- gress in the management of its slave property can have neither power or right to violate that policy. " Congress shall have power to declare the punishment of treason, but no attainder of treason shall work corruption of blood or forfeiture, except during the life of the person at- tainted." — Con. U. S. Congress having been forbid to pass any bill of attainder, this clause must have exclusive reference to judicial attainder. In that sense it precludes Congress from all power to prescribe a forfeiture, in any mode, beyond the life estate of the offen- der, in any description of property, as a penalty for treason. Consequently, Congress can, under no view of its power, eman- cipate a slave by way of forfeiture for longer than the lifetime of its owner, and so to exercise the power would be obviously unjust, because of the injury that would thereby be inflicted on the ultimate owner. Judge Story, in commenting on this clause (3 Com., 172), gives thus the reason for this limitation of the power of for- feiture : " It is surely enough for society to take the life of the offender, as a just punishment for his crime, without taking from offspring and relatives that property which may be the only means of saving them from poverty and ruin. The his- tory of other countries abundantly proves that one of the strong incentives to prosecute such offences as treason has been the chance of sharing in the plunder of the victims. Rapacity has thus been stimulated to exert itself in the service of the most corrupt tyranny ; and tyranny has thus been furnished with new opportunities of indulging its malignity and revenge, of 340 CONFISCATION AND ATTAINDER. gratifying its envy, and of increasing its means to reward favorites, and secure retainers for the worst deeds." The restriction of the power of Congress, as to extent of forfeiture, is confined to attainder for treason, as such is the fair construction of the clause, unless by liberal intendment the kindred offence of sedition be also included. But that in- tention is also to be inferred from the fact that Congress is not 80 restricted as to the other crimes it is expressly authorized to punish. The fear of the power being abused by a dominant party for the purpose of persecution did not apply to any crime but that of treason and its cognates. No.n. THE POLICY OF CONFISCATION AND EMANCIPATION. As all loyal Union men look forward to the day when the present execrable rebellion will be suppressed, and the law restored to its supremacy, it is obviously worse than idle to resort to any mode of confiscation or forfeiture which the law, when so restored, will not recognize as legal and valid. The proclaimed emancipation of three millions of slaves is equivalent to the proclamation of exterminating war against all the men, women, and children of the South, without regard to a million of the white population against whom no political fault can properly be alleged, except from circumstances which they could not control, and of which they have been made the victims. It will also bring probable destruction upon most of the negroes, who are free from all fault toward the Government. The adoption of such a policy would, in the estimation of all Christendom, rule the l^Torth out of the pale of civilized States, and place the war out of the rules and usages of war- fare among civilized nations. So says our Declaration of In- dependence, than which there can be no higher authority among Americans. There never was a people so craven as not to meet such a measure with the severest retaliation. The war would be carried on by both sides under what is termed the black flag. That pretext, if not justification, which Eng- land and France are apparently so eagerly seeking for, would CONFISCATION AND ATTAINDER. 841 be afiorded them on tlie score of humaiiit}', as was done in the war between Turkey and Greece. The power to inflict such terrible calamity on the nation — such an indelible stigma on its character, is claimed as part of the law of war. The power to wage the war is derived exclu- sively from the acts of Congress, the power to pass which is derived exclusively from the Constitution. "What Congress cannot do directly, it cannot accomplish indirectly, through the agency of the army. Congress having no abolition power, it can institute no measure, however indirect, which has aboli- tion for its object — such as enticing slaves to our camps, or otherwise exciting servile war. If that object cannot be at- tained directly for the great purpose of philanthropy, national peace, and prosperity, most surely abolition cannot be used indirectly as a means for attaining any other purpose — such as aid in carrying on the war. It cannot be pretended that the Constitution expressly sanc- tions or contemplates the employment of such means in sup- pressing rebellion. Its framers had recently been rebels — had achieved their freedom by rebellion, and could not have held rebellion in such abhorrence as to contemplate such in- human, sanguinary means for its suppression. Such presump- tion would be foul calumny on their virtue, their humanity, and their intelligence. They explicitly said what entirely negatives any such idea, and what impliedly forbids the em- ployment of such means. They made it the express duty of the Federal Government to suppress slave insurrection. iN^othing could be more absurd than to suppose permission to incite such insurrections, when as soon as they occur the Government is bound to suppress them. The Constitution gives power to Congress " to make rules for the government of the land and naval forces," that is, to govern the war. Every officer, from the President down, would readily admit that he is hound to obey the rules and articles of war established by Congress. ^Now, suppose that all the clauses of the Constitution, protecting the personal liberties and private property of citizens, were embodied in the rules and articles of war by Congress, no man, not even a soldier, would doubt that they must be obeyed. Yet, without any 342 CONFISCATION AND ATTAINDER. such Congressional adoption, those clauses are, to every intent, parts of the rules and articles of war, so far as they apply, and on every score are entitled to better obedience, stricter observ- ance, than those enacted by Congress. l\naat doubt, then, that the Constitution is the law of the war ? This utterly extinguishes all idea of the Constitution being made for time of peace, and not for war. The power of emancipation is also claimed under the law of necessity ; but neither does that law allow it, even accord- ing to the construction given to it by the higher-law men them- selves. They admit there must be an actual, not a mere ficti- tious necessity for the intervention of their law, and the shoving aside of the Constitution. Such necessity does not exist, nor even its semblance. That the present causeless, infamous re- bellion is hard to put down cannot be denied. But that the existence of the people of the loyal States, or that of their Government, is in any sort of peril from the rebels, is what no truthful man will considerately affirm. "We are in round num- bers twenty millions against five. When we consider our greater condensation of population, our greater facility of rail- road and water transportation, our exclusive naval power, our greater pecuniary and other resources for the equipment and maintenance of armies, this disparity of mere numbers should be doubled in estimating the comparative military strength of the two sections, and upon a very low estimate the ratio fixed at eight men to one. It is merely absurd to surmise that the eight can be conquered by the one, though the one in a defen- sive war may long keep the eight at bay. "What will merely expedite or facilitate putting down the rebellion falls far short of the requirement of the higher-law problem of necessity. But we are told the expense of the war is so enormous — a million and a half a day — as to render its speedy termination an actual necessity. That enormous expenditure is not at all necessary, not more than the third of it for the safety of our people or their G-overnment — it is the result of a foolish effort to do what is impracticable, with any amount of expenditui'e, any aid derivable from emancipation proclamations ; that is, the sudden suppression of the rebellion and the submission of the traitor States. Time will be required for that. It is una- CONFISCATION AND ATTAINDER. 343 voidably a slow, protracted, process that ever brings all tliat about. A milliou of men, with a daily expenditure of two millions of money, cannot accomplish it without the aid of time. AVith that aid it no doubt can be and will be ultimately accomplished, unless there should happen some one of several causes for its prevention. Prominent among these would be a course of policy inducing a servile war, with its accompaniment, a war of mutual exter- mination, justifying and ensuring European intervention. Or without a servile war, a law of general confiscation of all South- ern property, accompanied by a military success which will drive the South to desperation, and cause the buying of French protection, by the cession of Louisiana and Western Florida, and even, if absolutely necessary, of Texas also. Or, by the bankruptcy of the Government. This last may happen during the present year. Waiving all discussion for the present of the two former, let us consider a little the chance of the latter calamity. It would be rash criticism which should venture to censure the course of the very intelligent Secretary of the Treasury without knowing what he knows, and without seeing affairs in the light with which it is presumable that he sees them. But if such criticism were allowable, to the uninitiated it might be respectfully suggested, that he made a great mistake in not using every effort from the first to obtain a European market for our bonds. There is not now in this country, nor will there be for half a century, dormant, unemployed capital enough to absorb the enormous amount of bonds he will have to sell during the present year, to say nothing of next year. There is not now, and probably will not be this year, enough such capital seeking permanent investment in those bonds to the amount of even a third of what he will need. Whatever he may do toward forcing or coaxing the bonds into the hands of those who cannot permanently hold them, will only serve to force them upon the market and precipitate their fall, pos- sibl}^ as low as sixty cents to the dollar before the year is out. Any indication of such rapid depreciation will eff'ectually close the European market. What induces tlie belief of the dearth of dormant capital here, in addition to our comparative high 344 CONFISCATIOX AND ATTAINDER. rate of interest, is tlie fact that nearly all our canals and rail- roads have been built with foreign capital. For some years prior to 1860, it was estimated that not less than sixty millions annually of foreign capital were invested in our State bonds. If he has to depend upon assignats, any mode of currency largely in excess of the wants or convenient use of the nation, their certain fate is well known to all. They can serve only as a very short, temporary expedient. The Secretary is not old enough to have witnessed it, but the experience of the last war with England gave no cause for confidence in oiir people for standing heavy war taxation. The writer well recollects that it was the opinion of intelligent men at that time, that if the war had lasted a year longer the Federalists would have got into power. The Secretary ought not to rely too much upon that source of revenue, whatever the enthusiastic coercives may tell him as to the present temper of the people on that subject. There seems no alternative against extreme pecuniary embar- rassment, but the reduction of the expenditures within the means of the Government. The way to do this is to fall back upon something like the original plan of General Scott for conducting the war, which was, after taking N^ew Orleans, to make it altogether a defen- sive war — leaving it to time, the pressure of taxation, and the loss of trade, to restore the people of the South to their senses. This can be done with an army of about two hundred thousand men, which will be a reduction of two-thirds of the expense. Subsequent events would now require the retention of Beau- fort, the taking of Pensacola, and the driving of the rebels from most of Tennessee. In the opinion of some of our most intelligent men, this has always been, and still is, the only certain mode of obtaining a restoration of the Union. It is not only accompanied with no hazard of the ultimate success, but, as they have thought, it would also be the most expeditious. To obtain the national acquiescence in that plan, it is only necessary that its readop- tion shall be preceded by one or two victories on a large scale to wipe out the remembrance of the Bull Eun disaster. It is e\'identfrom Mr. Seward's letter to Mr. Adams of 10th of April last, that some such plan must have been the one unanimously CONFISCATION AND ATTAINDER. 345 agreed upon by the Cabinet up to that time. Indeed, some- thing short of that would then have been approved by public sentiment. On the 11th of April last the writer, in a publica- tion then made, recommended a similar plan, but found little or no co-operation from any quarter. Some of those who are now among the intolerant, proscriptive coercives even rebuked him for intemperate zeal. It was then still doubtful whether the Administration meant to coerce payment of duties. The departure from the original plan, and adopting one of invading coercion, is deemed one of the most stupendous blunders ever committed. Its only parallel is to be found in the very similar one committed by the Lord North ministry, which lost the American colonies to the British crown. Had they contented themselves with holding New York, and a vigorous blockade, and for the rest trusting to time and conciliation, instead of coercion, the result might have been reversed, leaving it to the force of mere increase of population in twenty or thirty years to have brought about an amicable separation. The great benefit from the re-adoption of the plan, besides removing all danger of permanent separation, and preventing an increase of sectional animosity, is that it will at once remove all pretext of necessity for inhuman measures, or for violating the Constitution, and postpone indefinitely the great impend- ing danger of its permanent destruction. The imminence of that danger can be appreciated from the ratification of all acts of the Administration, the character of the measures pending before Congress, and especially from the declaration of prin- ciples and opinions made by leading members of both houses. A specimen of them is to be found in a recent speech made in the House by the Chairman of its Finance Committee. He said : " The question recurs how can the war be carried on so as to save the Union? 'Universal emancipation must be pro- claimed.' If any unforeseen emergency should arise, endan- gering the existence of the Republic, the section of the Con- stitution which says ' that the President shall take care that the laws be faithfully executed, creates him as much dictator, for the time being, as a decree of the Roman Senate made a consul dictator. * * * But when Congress assembled they would have the same full powers. If no other means were left 44 346 CONFISCATION AND ATTAINDER. to save the Republic from destruction, I believe we have power under the Constitution, and according to its express provision, to declare a dictator, without confining the choice to any officer of the Crovermnent." This man, after the utterance of these sentiments, was neither called to order, hissed, nor kicked out of the House. Yet simultaneously with their utterance the Senate was trying one of its members for disloyalty, and his expulsion actually took place, because, among other things, he never voted for an ap- propriation for cariying on the war — that, according to the avowed opinions of Senators, being full proof of such disloyalty as to authorize his expulsion. If these are not rapid strides toward absolute despotism it is difficult to understand what would serve for proof of such tendency. No baser moral trea- son ever befouled human lips than the words uttered by this man, yet he received not the mildest rebuke, whilst his party in the Senate was treating it as a ground of expulsion, that a Senator did not vote in accordance with the views of the ma- jority. All this, too, claimed to be said and done " under the Constitution, and according to its express provisions." Con- gress, with full power to expel members who do not vote to suit them, and to establish a dictator over us whenever it may choose to think it required by public safety ! This ranter after universal emancipation, this fanatic so eager for the freedom of negroes, is ready and willing, claims the power in Congress, to make slaves of his white countrymen ! He ought never to have been born an American. He is fit only to have been born a Russian serf, and kept a serf for life. He is the recorder of his own infamy. He has made himself the enduring mark for the unmoving finger of national scorn. With six hundred thousand armed men in the field, and these advocates of dic- tatorship in Congress, much the greatest of our national perils will begin when the rebellion has been suppressed. The reduc- tion of the army beforehand is the only way to avoid the peril. A bill was presented to the House of Representatives, which is probably now pending before that body, for the purpose of confiscating all the property in the eleven seceding States at a single blow. It names a day, by which if the taxes apportioned by Congress on those States are not paid, the confiscation shall CONFISCATION AND ATTAINDER. 347 take effect, and the title become vested in the United States. This is an attempt, by a small cunning, to pettifog a confisca- tion and emancipation bill round the obstructions of the Con- stitution. The deviser of the scheme had seen sheriffs selling property for non-payment of taxes, without any judicial order for so doing, and not understanding why it can be so done without violating the Constitution, fancies he can slip his bill through the Constitution by the aid of that brilliant analogy. The ignorance of the Constitution betrayed in these times by men in high political station is really marvelous. The pro- jector of this device wants to resuscitate the old Articles of Confederation, make a requisition on the States, and, for failure to comply, inflict this sort of summary punishment — a punish- ment for which there is not the slightest warrant, cither in those Articles or the present Constitution. K he could be sent back for a day or two to a law school, he would there learn, that to get rid of the old mode of requisition upon the States, and to impose the tax directly upon the separate individual citizens, was a leading motive for adopting the Constitution, and that it does not permit any requisition by Congress upon the States. He has also some recollection from his reading of outlaws and outlawry, and suspecting, from the way the Con- stitution reads, he might not be able to get at a rebel or his property by way of punishment for treason without the instru- mentality of the courts, by a single flourish of his legislative pen he outlaws some five millions of our citizens, and then he thinks they \%'ill not be entitled to the protection of the Con- stitution or any other law. He first puts them " out of the law," and then fires at them his tremendous confiscation blun- derbuss. He is no petty larceny fileher from single men one at a time, but, with a most lofty ambition, at one fell swoop strips the people of eleven States of all their property, and vests it in the Government. "What a pity that such commend- able ambition should be thwarted by that vexatious prohibition ag^ainst bills of attainder ! The talented leader of the abolitionists out of Congress in- sists that the Constitution is already all gone, broken up, and destroyed, and that for the present we can work along well enough without one, but as soon as we have leisure the nation 348 CONFISCATION AND ATTAINDER. must make a Constitution ! His friends in Congress seem to be acting upon his idea. One of them, a leading Senator, ex- claimed in a speech lately : " By heaven, if I was your Presi- dent, and you did not give me the necessary authority, I would usurp it, and you might help yourselves ! " What a beautiful Constitution it will be that these men will give us ! The confiscation bill reported by the Senate committee is another petifogging dodge to get round the Constitution, and punish treason with forfeitures, without the aid of courts and juries. It attempts to assimilate forfeiture for treason to for- feiture for smuggling, and directs the forfeiture to be enforced by a sort of proceeding in rem, without any sort of jury trial. The attempted trickery on the Constitution cannot avail ; the courts will not lend their aid. That mode of punishing smug- gling is a sort of anomaly in our jurisprudence, which, so far from justifying other steps in the same direction, is liable to great doubt as to its own constitutionality. If it had been seriously resisted in the first instance, it is doubtful whether it would have received judicial sanction. Following English pre- cedent, without particular attention to the application of such precedent under our Constitution, it was treated as a quasi oficnce in the thing smuggled — like the old law of deodand, and not as an offence of the owner, or as an offence separable from his. With much plausibility it might have been supposed that such mode of procedure was a depriving the owner of his property by " due process of law," within the meaning of the Constitution, that being the established mode in England, not- withstanding the clause in Magna Charta, the same as that in our Constitution, against depriving a citizen of his property without due process of law. Let this conjecture be right or wrong, whatever the principle upon which such procedure is based, it manifestly admits no extension without impairing the sedulously guarded right of trial by jury. As to property Ij'ing in rebel States, the bill authorizes its confiscation and sale by any person the President may appoint, that person, of coiirse, to be the judge of the guilt of the owner, thus constituting him both judge and jury. The author of the bill said in his speech, that the intention was, though the bill does not say so, to confiscate the real estate CONFISCATION AND ATTAINDER. 349 during tlie life of the owner, but tlie personal estate, including slaves, absolutely. He does not say where he finds authority for the distinction, nor does he give any reason for it. The Constitution, in giving power to Congress to punish treason, says : ^'■But no attainder of treason shall work forfeiture, except during the life of the person attainted." "When it is recollected that, at common law, attainder worked forfeiture of all the offender's estate, both real and personal, the words of the Con- stitution furnish no room whatever for making any such dis- tinction. The perishable quality of personality affords no suf- ficient reason for arbitrarily making such distinction ; for the property can be sold and vested in permanent stock by order of court, the Government being allowed to receive the in- terest, whilst the principal is reserved for the ultimate owners after the death of the offender. As to slaves, there is no need for their sale, they not being deemed perishable property, and the law allowing a remainder after a life estate in them. The attempt of the bill to divest the title out of the traitor, and by force of its own action, ^'' ipso facto,'" vest it in the Gov- ernment, falls directly within the prohibition against bills of attainder. It is a plain effort to usurp judicial magistracy, and inflict punishment directly by mere legislation. As to the danger of a war with France, from driving the South to desperation, that is a topic which probably had better be hinted at only rather than publicly discussed. But it must not be overlooked. K we once get into such a war, no one can tell when it will cease. Kentucky, Missouri, and the other States occupying the upper waters of the great river, will never consent to let Louisiana go as the price of peace. They would force the nation into another war in less than a year after any peace made on that basis with any foreign or confederate power or powers whatever. That is a national possession which their ten millions of hardy freemen will neter surrender, whatever may be the suffering of their Eastern countrymen from a for- eign war. This ought to convince the advocates of wholesale confiscation and emancipation that the ordering of beneficent Providence does not permit such enormous inhumanity either to a debased, despicable pigmy-minded fanaticism, or to the even worse diabolism of a raving vengeance. 350 CONFISCATION AND ATTAINDER. The following extracts from the speech of a talented and leading Republican Senator, which have been commended as "noble words," corroborate entirely the main view of this and preceding pamphlets, and though it must be confessed that the action of the Honorable Senator has not always conformed to his precept, he shall be allowed to conclude the discussion : " I do not place the power on the ground assumed in some quarters, that in times of war or rebellion the military is supe- rior to the civil power ; or that, in such times, what persons may choose to call necessity is higher and above the Constitu- tion. Necessity is the plea of tyrants, and if our Constitution ceases to operate the moment a person charged with its obser- vance thinks there is necessity for its violation, it is of little value. I hold that the military is as much subject to control by civil power in war as in peace. " I want no other authority for putting down this gigantic rebellion than such as may be properly derived from the Con- stitution. It is equal even to this great emergency. The more we study its provisions, the more it is tried in troublous times, the greater will be our admiration and veneration for the wis- dom of its authors. "I am for suppressing this enormous rebellion according to law, and in no other way. We are fighting to maintain the Constitution, and it especially becomes us not to violate it our- selves. How are we better than the rebels, if both alike set at naught the Constitution ? I warn my countrymen who stand ready to tolerate almost any act done in good faith for the suppression of the rebellion, not to sanction usurpations of power which may hereafter become precedents for the destruction of consti- tutional liberty. " "While fighting this battle for constitutional liberty, it be- hoves us to see to it that the Constitution receives no detriment at our hands. We will have gained but little in suppressing the insurrection, if it be at the expense of the Constitution. The chains that a bondman Avears are none the lighter because they were forged by his own hands. Let us preserve the Con- stitution perfect in all its parts, with all its guarantees for the protection of life and liberty unimpaired." CONFISCATION AND ATTAINDER. 351 No. m. Maech 6, 1862. The following numbered postulates need no proof, but will be recognized by every constitutional lawyer as of near kin to axiomatic principles : 1. Congress has none but legislative powers. It can exercise neither judicial nor executive functions. Its power is exclusively mandatory, — to the judiciary and the executive belong the execution of its mandates. 2. Neither the judiciary nor the executive can legislate; nor can either exercise a function properly belonging to the other. Hence the necessity for the conjoint action of the legislative with one of the other -departments, for the legal execution of any Congressional will. • 3. To prescribe a penalty is legislation; to ascertain guilt and enforce the penalty belongs to the judicial functions. Hence Congress cannot deprive a citizen of his property " without due process of law," — that is, judicial process. Hence, also, there was little need for prohibiting bills of attainder, if the bill of rights had originally been part of the Constitution. 4. The Government has no absolute right of eminent do- main over private property in a republic. Hence private property cannot be taken by our Government but for public use, and not even then "without just compen- sation." 5. Except as punishment for crime or violation of law, Con- gress has no power of confiscation or forfeiture over the pro- perty of citizens, the confiscation or forfeiture being a mere incident to the power to punish. To ascertain the crime or violation *of law and inflict the penalty is an exclusively judicial function. Hence no forfeiture or confiscation can be legally enforced without a judicial sentence; nor except as a penalty for some 352 CONFISCATION AND ATTAINDER. act which Congress is authorized so to punish. The case of the Venus, (8 Cranch, 253), relied upon by Senator Trumbull, is no authority to prove power to confiscate property of a citi- zen, otherwise than as an incident to the power to punish crime. It is rather an authority the other way. The confiscation was maintained on the ground that the claimant by his domicil in England having acquired a right to protection of the English Government, had lost his right to the protection of ours for his goods in an enemy's ship, though he still remained a citi- zen of this country. The very basis of the decision was, that he no longer retained all the complete rights of a citizen ; or that his property connected with the trade of the enemy, was "adhering to the enemy," and therefore subject to confisca- tion, though he himself" cannot be considered an enemy in the strict sense of the word. His other case of Cooper vs. Tellfair, (6 Dallas), has as little application, having been decided in re- ference to a confiscation made by the Legislature of Georgia, before the adoption of the Constitution of the United States, and there being nothing in that of Georgia to prevent such confiscation. So, also, as to his Maryland case, (6 Cranch). The facts of the case recently decided by Judge Sprague are too imperfectly stated to permit an opinion as to the correctness of the decision, or whether it had any bearing on the subject. 6. A leading object of the Constitution was to secure the right of trial by jury; it declaring that " the trial of all crimes, except in cases of impeachment, shall be by jury." Hence the anomalous proceedings in rem for the confiscation of smuggled goods, &c., if not of doubtful constitutionality, can never serve as analogy for the extension of such mode of proceeding to new subjects, in derogation of the right of trial by jury. It can never be done except where the particu- lar use made of movable property renders it liable, like smug- gled goods, to seizure without reference to any criminal offence committed. by its owner. Mere ownership by a rebel traitor is not such use. Otherwise the limitation to the power of Con- gress in punishing treason by forfeiture would be of no avail. 7. Treason is a " capital and infamous crime," for which no man can be punished by forfeiture of his property, or other- wise "held to answer, unless on indictment of a grand jury." CONFISCATION AND ATTAINDER. 353 Hence the attempt of the bill before the Senate to punish treason by mere information or proceeding in rem, without the interposition of g-rand or petty jury, is clearly nugatory. By no chicanery or legal device can the reign of Empsom and Dud- ley be established in this country. The difficulty, if not impracticability, of obtaining forfeitures against such a multitude as are now in rebellion, by due pro- cess of law, constitutes no sufficient reason for violating the Constitution and obtaining forfeitures by illegal or arbitrary methods. If it be a casus omissus, or if it be a faulty structure of government, the only proper remedy is by an amendment of the Constitution. For, as said by Washington, "If in the opinion of the people the distribution or modification of Con- stitutional powers be wrong in any particular, let it be corrected by an amendment in the way Avhieh the Constitution designates. But let there he no cliange hy usurpation ; for though this in one instance may be the instrument of good, it is the customary weapon by which free governments are destroyed. The pre- cedent must always greatly overbalance in permanent evil any partial or transient benefit which the use can at any time yield." The want of such power is no doubt very vexatious to those who are blinded by a rankling hate to any other consideration than the indulgence of a ravening thirst for vengeance ; but it is a great mistake to suppose that any large portion of the con- siderate, intelligent part of the nation will grieve over the escape from confiscation by self-banishment of very many of those engaged in rebellion. Banishment is no light punish- ment. According to the modern usage of Christian nations, it is the usual mode of punishment for even most of the lead- ers of rebellions. Confiscation of property, as a mode of punish- ment, has never been a favorite with this nation. Witness the fact that Congress has never to this day prescribed general con- fiscation as a mode of punishment for treason or any other crime. Witness also the other fact that all our States have repealed the common law penalty of forfeiture of estate, as one of the incidents to every judicial attainder for felony. But, above all, witness the restriction placed by the Constitution upon the discretion of even Congress in punishing treason, that highest crime, by forfeiture, by limiting it to the life estate 45 354 CONFISCATION AND ATTAINDER. of the offender. The enlightened friends of civil liberty, the admirers of the Constitution, have been wont to look upon this limitation to the power of vengeance as perhaps its most beau- tiful and lovable feature. They exultingly viewed it in pride- ful contrast with the unstinted power of vengeance in other governments, as manifested in their drawing, disembowelling, quartering, hanging in chains, corruption of blood, and total forfeiture of estate. This limitation in behalf of mercy is believed to have been the germinal principle in the great ame- lioration of the criminal codes, not only of our own States, but of those of Europe also. It is said that no less than fifty capi- tal punishments have been abolished in England during the present century, greatly influenced thereto as her Government no doubt has been by our example. Yet Senator Trumbull has the audacious frankness to say that the evasion of this wise, beneficent feature of the Constitution is the very purpose of his bill. After the rebellion has been suppressed, and popu- lar passion has had time to cool, if it should be thought that public justice in the way of example, or in vindication of the majesty of the law, requires hangings or confiscations to be inflicted upon some of the leaders, enough of them can no doubt be secured to answer that purpose. Wliatever may be the desire of discreet, intelligent men to see these leading traitors adequately punished, there are but few enlightened citizens who would not greatly prefer the whole should go unpunished, rather than the President should have the enor- mous perilous power over all the property of eleven States, which is attempted to be confided to him by this bill. There is one result of this bill, if it passes, of which we may be certain beforehand, that is, that though the President may perform his duty with perfect fairness and integrity, yet, in despite of him, the frauds and individual persecution and wrong practised under it, to the enriching of the vilest men in the country, will be beyond all precedent, and inflict a last- ing stigma on the Government. A result from which the nation will turn with loathing and disgust, learning in sorrow and humiliation, how much superior was the wisdom of the framers of the Government to that of the men of the present generation. Those framers intended to put it out of the power CONFISCATION AND ATTAINDER. 355 of a dominant party to create a corruption fund by tlie per- version of the criminal justice of the nation. Tliey thought it better that innocent women and ehikh-en shoukl enjoy a traitor's property rather than it shoukl fill the maws of party sharks. 8. Congress has power " to declare the punishment of treason," but the punishment, by way of forfeiture of i)roperty, shall not extend beyond the life of the person attainted — that is, judicially convicted. Attainder by bill being prohibited, there can be none but judicial attainder. This limitation applies to every description of estate, real or personal, l^o exception is made, and there is no power to interpolate an exception. This precludes .the Government from obtaining such a right in slaves by forfeiture as to author- ize their emancipation, even if the Government had power to emancipate such slaves as it may rightly own in fee. The tenant for life has not, and rightfully cannot have, the power of emancipation. The offences which the bill proposes to punish are all treason, and nothing but treason. It matters not as to the mode in which the punishment or forfeiture is inflicted, whether by ex parte proceeding in rem, or by indictment. Con- gress cannot go beyond the limitation to its power of forfei- ture, the power to inflict the punishment depending upon the Constitution equally in either mode. 9. Congress can pass " no bill of attainder." Hence, if there be diflerent kinds of such bills, none can be passed that are in the nature of a bill of attainder. The pro- hibition has received and will continue to receive a liberal construction from the courts, covering everything in pari ma- teria. As said by the Supreme Court: "A bill of attainder may aft'ect the life of an individual, or may confiscate his pro- perty, or both." Or, as said by Judge Tucker, a bill of pains and penalties is a bill of attainder. All of them are equally bills of attainder, whether they designate their victims by name or b}^ general description fitting a multitude of persons. It matters not as to the degree or amount of penalty ; any punishment, however light, attempted to be inflicted by Con- gress by its own sole action, constitutes a bill of attainder. Outlawry is grievous punishment; so, also, is the denaturaliz- 356 CONFISCATION AND ATTAINDER. ino- of citizens and converting tliem into "alien enemies," the attempt to inflict eitlier bringing a bill clearly within the pro- hibition. Senator Trumbull says, " this is not a bill of attainder at all; it does not corrupt the blood of the party, but it is a bill ope- rating upon property." It seems strange, very strange, that he should need to be told that corrupting the blood is no in- dispensable requisite to a bill of attainder. Does he suppose that Congress could order a man to be hung, and give validity to its act, by merely making an express reservation against the corrupting his blood ? Is there no end to the vagaries which !^et possession of the minds of men, even of those in the most elevated position ? He further says, that because Congress can confiscate the property of a foreign enemy, " the act of confiscation must be something different from a bill of attainder, because the Con- stitution expressly declares that no bill of attainder shall be passed." Such an act of confiscation is certainly a very dif- ferent thing from a bill of attainder. First, because an alien enemy is entitled to no protection under our Constitution ; whereas, a citizen is entitled to such protection, even though he be an unconvicted traitor enemy; and, second, because Congress has full right and power to confiscate the property of an enemy, whereas it has no right to confiscate the property of a citizen, except as punishment for crime or for violation of law, and all such punishments must be inflicted by the judiciary. As to his other idea of its not being a bill of attainder, be- cause it operates merely on property and not in personam, it is fully answered by the Supreme Court, which has said that it is none the less a bill of attainder because it merely confiscates property. If that answer is not conclusive, then he can find a sufficient objection in the clause which says, no man shall be deprived of his property without due process of law. His idea of convicting a piece of land as an active co-opera- tor, an aider and abettor in the rebellion, must prove a most desperate eflfort before any tribunal having a particle of com- mon sense. Yet that idea, superlatively absurd as it is, forms the very basis of his bill for subjecting the whole estate to CONFISCATION AND ATTAINDER. 357 confiscation, and getting rid of the necessity for grand and petit jurors. His scheme is to treat the crime of the owner as the crime of the property, and to punish the property instead of the owner, not perceiving that his imputed punishment of the property is nothing but punishment of the owner, the ex- tent of which is limited by the Constitution, whatever may be the mode used by tlie Government in applying the punishment. 10. The law of nations has no bearing or operation within our own territory, as between our citizens and their own Gov- ernment. It expressly repudiates any such pretension in its own behalf, declaring explicitly that its only operation is be- tween different nations, as nations regulating their relations toward each other, whether in peace or war. Hence our Government can derive no power whatever from that law ; but the law itself is wholly dependent upon the will of our Government for its being recognized here at all. We do not need that law to toll us we may confiscate the property of an enemy ; for even when recognized and acquiesced in, it only serves to mitigate, not to create, an otherwise clear natural right Still less do we need that law to toll us when and how we may confiscate the property of our own citizens, or punish their crimes. That all depends exclusively upon our own na- tional volition. The nation has in the Constitution fully ex- pressed its will on that whole subject, and that will so expressed is the only law for its own government. Especially as to the crime of treason, which it is the sole purpose of this bill to punish, the Constitution is very explicit. After carefully de- fining the crime, it gives Congress the poAver to prescribe its punishment under a fixed limitation as to the extent of punish- ment. Within that limit Congress may use any mode of pun- ishment — fine, imprisonment, confiscation, banishment, or death. It may, as now, punish with death alone, or by confis- cation alone, or by confiscation in combination with banish- ment. But, wdiatever the punishment, it can be inflicted only by the judiciary, or, in other words, by due process of law. In defining treason to be the levying of war against the United States, the Constitution has told us that we may liave citizen enemies, and in limiting the amount of confiscation to 358 CONFISCATION AND ATTAINDER. be used in pmiisliiDg treason, it concedes it right so to punish it within that limit. How and by whom that punishment may be inflicted, its other provisions fully and clearly point out. If the remedy is seemingly too slow, or if it be inefllcient, or if there are cases which the remedy will not reach, that was all foreknown, and it was made so in avoidance of supposed greater evils ; but, above all, in full answer to all cavils, be- cause such was the national will. That wnll is the paramount law of the land, which cannot be altered in the slightest de- gree by the combined wills and laws of all the nations of the earth. A deliberate effort knowingly to transgress that will by any of our sworn functionaries is moral treason of the deep- est dye. An appeal to the law of war, in justification of such transgression, is merely preposterous. If that law is consonant to, or is derived from, the Constitution, then it is a mere ap- peal from the Constitution to the Constitution itself. If it be different from the constitutional law of war, being a bastard law, having no paternity but that of his Satanic majest}^, or some of his progeny, the execrable race of usurpers', then the nation, with all the emphasis of the whole Constitution, has denounced it as no law, but as an accursed thing to be shunned and avoided for any and every purpose. "When the Constitution gave Congress power to make rules for the government and regulation of the "land and naval forces," it gave plenary authority to Congress to make all the law of war, whether foreign or intestine, permissible in this country. There it is, ample, complete, unstinted, leaving no need to borrow from any supposed law of foreign war, or any law of nations. K there is any desired power which Congress cannot confer on the land and naval forces, it must be because of some express inhibition of the Constitution, which equally applies to the President and all our military commanders. They can have no power which Congress, the sole arbiter of the law of war, cannot directly confer, as they have no power of waging war which Congress cannot repeal out of their hands. They are as much bound by the Constitution as if it were bodily engrafted by Congress into the rules and articles of war. It is, therefore, merely absurd to attempt to derive CONFISCATION AND ATTAINDER. 359 any extraordinaiy power either to Congress, the President, or the army, from the so-called law of war. The Constitution is the sole paramount law of war. May it ever remain so in practice as well as theory. Note. — " It is admitted by Senators that the words of the Constitution do not forbid the forfeiture of personal estate ; so that a person attainted of trea- son -would be made to forfeit all his personal estate, no matter what its amount." — Senafoj- SiiJnner, Congressional Globe, 2190. To prevent a repetition of such blunders, attention is invited to the follow- ing citations from so familiar and accurate authority as Blackstone's Com- mentaries : "By attainder for treason or other felony, forfeiture of lands and of what- soever the offender possessed, was the doctrine of the old Saxon law." — Yoh 2, 251. " Upon judgment of outla-\vry or of death, for treason or felony, a man shall be said to be attainted." — Vol. 4, 381. " The forfeiture of goods and chattels accrues in every one of the higher kinds of offence : in high treason or misprision thereof, petit treason, felonies of all sorts, whether clergyable or not," etc. — Vol. 4, 386. " There is a difference between the forfeiture of lands and of goods and chattels. Lands are forfeited upon attainder and not before ; goods and chat- tels are forfeited by conviction. Because, in many of the cases where goods are forfeited there never is any attainder; whicli happens only where judg- ment of death or outlawry is given. The forfeiture of lands has relation to the time of the fact committed, so as to avoid subsequent sales and convey- ances ; but the forfeiture of chattels has no relation backwards ; so that those only which a man has at the time of conviction sKall be forfeited. Therefore, a traitor or felon maj-, honajide, sell any of his chattels, real or personal, be- tween tlie fact and conviction, for no buyer could be safe if he were liable to return the goods he had fairly bought, provided any of the prior vendors had committed treason or felony." — Vol. 4, 387. Hence the only difference between a forfeiture of land and a forfeiture of goods by attainder was, that the former related back to the date of the offence, whereas the latter related back only to the time of conviction. For obvious reasons the conviction gave the right to sequester personality, but it amounted only to an inchoate forfeiture till judgment upon the conviction, when the at- tainder and consequent forfeiture became complete. Before that the Crown could neither sell nor donate the chattels. It Avas the attainder that made the forfeiture complete in both instances. Therefore, the Constitution, in saying " no attainder of treason shall work forfeiture, except during the life of the person attainted," includes personal as much as real estate. Therefore, also, Congress can in noway, directly or indirectly, punish trea- 360 CONFISCATION AND ATTAINDER. son by emancipation ; for qtio ad the punishment of treason the owner of a slave has only a life estate, and the owner of such life estate has no power of emancipation. Or, at most, all that Congress could do in the way of penalty, would be to emancipate during the life of the owner ; but this would be so manifestly unjust to the remainder-man that no fair-minded person would contend for that mode of exercising the power. There is still a stronger reason against such exercise of the supposed power. Senator Sumner, in the same speech, (page 2190) admits: "Congress has no power under the Constitution over slavery in the States." " Congress has no direct power over slavery in the States so as to abolish or limit it." Now, all the slave States prohibit emancipation, except in the manner their statutes specially prescribe. Congress can rightfully, legally, do nothing in reference to this peculiar property, whether by way of punishment or otherwise, in violation of this necessary settled policy of those States. Congress may for- feit and hold, or forfeit and sell slaves by due process of law, in punishment of treason, but the Government or its purchaser must take and hold the pro- perty subject to the State law. ;) This equally disposes of all claim of power in the President, or one of his sub-military commanders, to emancipate by proclamation. They can have in that particular, or any other, no power not given by Congress expressly or impliedly. As Congress cannot give such power directly, it cannot be im- plied. If claimed as an incident to the right of eminent domain, then it be- comes private property taken for public use, for which just compensation must be made to the owner, according to the recent precedent of emancipation in the District of Columbia. If claimed as an incident to the power of carry- ing on the war, then it is met by that highest authority, the Declaration of Independence, denouncing it as contrary to the usages of civilized warfare. It therefore cannot be implied in the silence of the rules and articles of war nor can Congress rightfully make it part of them. LAW AND CONSTITUTIONAL REFORM. 361 CHAPTER XYIII. 1849. LAW AND CONSTITUTIONAL REFORM. JURY SYSTEM. The first half of the present centur}^ has been signalized for the extent and judicious character of the law reforms made in this country and in Europe. The latter half of the century promises to be still more signalized in the same way. The work may be said to have commenced in the latter part of the last century, by the earlier legislation of our States, in extir- pating much of the feudal system engrafted on the common law, and by the change in the law of descents, and the abolition of the law of entail, adapting the common law to our repub- lican institutions. The most extensive and thorough reforma- tion was that effected in France, under Bonaparte, by the adoption of what is known under the name of the Code Xapo- leon. Our States have been gradually but unremittingly car- rying on the reformation, by partial, detached legislation, with various deg-rees of boldness and skill. Under the influence of our successful example, England has within the last twenty or thirty years set herself seriously to work in the same way, and, by the superior care and artist-like skill manifested in what she has done, has put most of our work to shame for its want of com- prehensive and consistent design, and especially for its lack of ekill and completeness in the finish. Among ourselves the New Yorkers have borne the palm, not merely in skill, but in boldness also. They alone, until very recently, have had the good sense, like England, to entrust the work to boards of commissioners appointed for that purj^ose. The consequence is, that, in a very few years, they have attained a point, ap- proaching thorough reform, full a century in advance of Ken- 46 362 LAW AND CONSTITUTIONAL REFORM. tucky and tliose other States, who hke her will wait for reform upon the ill-devised and worse executed acts of occasional legislation. What New York had already done, though of startling intrepidity to most of the legal men in other States, was so successful in the estimation of its own citizens, that the recent Convention held for the revision of the Constitution urged the work forward, by making it the duty of the Legis- lature to appoint a board of three commissioners to revise, reform, simplify, and abridge the rules of practice and plead- ing and forms of proceeding in courts of record. The board organized under this direction have reported a code, which has been adopted by the Legislature, that not merely reforms, but entirely revolutionizes, the modes of procedure in courts. It is understood not merely to have abolished all distinction in the forms of action, reducing all to the simple form of the petition of the civil law or the bill in chancery, allowing only one plea or response, disallowing all pleading after replication, and doing away with all distinction between chancery and com- mon law jurisdiction. The object of most of these reforms everywhere has been to diminish the uncertainty, the delay, and the expense of liti- gation. There is no little hazard in undertaking to speak upon the mere reported purport of the JSTew York system. But no practical lawyer will feel any hazard in predicting, if the report be correct, that it will prove a most signal failure, and that its result will prove a great increase in the uncertainty, the delay, and the expense of litigation. This opinion is ventured because the New York Convention has retained in their new Constitu- tion a clause similar to that in the Constitution of Kentucky, which says : " The ancient mode of trial by jury shall be held sacred and the right thereof remain inviolate." Now, if the construction there be, as it is here, to secure the jury trial in civil as well as criminal cases, then one of two results must ensue — either all cases must pass through the hands of a jury, which would unavoidably render the dispatch of litigation perfectly imprac- ticable, or the disputes arising out of the question, whether cases properly belong to the jury or to the court acting as chancellor, will create as much delay and litigation as the adjustment of the pleadings under the old common law forms of action. A LAW AND CONSTITUTIONAL REFORM. 3G3 clause of the new CoDstitution of Xew York requires that " the testimony in equity cases sliall be taken in like manner as in cases at law." Understanding this clause not merely by its literal import, but also from the discussion in the Convention which induced its adoption, the intention actually was, strange as it may appear, to compel the judges who decided equity causes to hear the proof ore tenus at the bar. Every practical lawyer knows that if they do this, and superintend the taking down of the proof, their whole time will be consumed thereby, or that they will have so little left as to disable them from dis- charging their other functions as common law judges, and the necessary consequence must be greatly to retard instead of accelerating the trial of both common law and chancery causes. Under our system of allowing any justice of the peace or notary public to take proof, the preparation of a hundred chancery causes can be carried on simultaneously in the same court ; whereas, under this new system, the proof in only one cause can be heard and taken at a time, and all other causes in court must wait upon that. This seems so perfectly preposterous that the presumption is we do not properly understand their system, and that their language does not actually mean what it so clearly seems to import. The fault of the old chancery sys- tem of New York was in expecting a single judge to dispose of the chancery business of three millions of people, when our practical Kentucky experience has proved that it will require the exclusive time and attention of at least eight judges to do the same business for six hundred thousand people scattered over the State ; provided it be done in the convenient mode of having a chancery court held twice a year in each county. The result of all these multitudinous reforms has been, both in this country and England, to strip English jurisprudence of that imputed sanctity and perfection of wisdom, which alone has for centuries preserved in use principles and modes of pro- cedure that are foul blemishes on any code, and could only have originated in an age of barbaric ignorance and superstition. AVhilst all the, reforms of law proceedings look mainly to diminish the uncertainty, the delay, and the ex-pense of litiga- tion, none of them have struck at that, which, beyond all other things in our judicial system, tends most to produce uncer- 364 LAW AND CONSTITUTIONAL REFORM. taiiity, delay, and expense — that is, the use of juries in the trial of civil causes. "When the American people have long since exploded the idea that any degree of antiquity, or any amount of immemorial usage, can consecrate a folly or inconvenience, our jurisprudence, whilst the English themselves are freely applying the reforming knife to many of their own most ancient and sanctified legal forms and usages, it may be permitted to inquire whether the use of juries, which has so long proved such an incubus upon the administration of justice in civil causes, is such a necessary and unavoidable evil that we cannot even partially relieve ourselves from it. It is true the late Convention of 'New York seems to have felt the evil and un- derstood the necessity for a change, yet they lacked the cou- rage to make the necessary reform. All the action of that Con- vention seems to have been mainly influenced by deference to a supposed popular sentiment. "Whilst bowing to the very dust in pretended homage to the infallibility of that sentiment, it could not be expected of such men that they should do aught which seemed to trench upon the popular participation in the administration of the law and justice of the country. Hence, they contented themselves with solemnly declaring in their Constitution that " a jury trial may be waived by the parties in all civil causes." A most timid, puerile, and imbecile effort truly. This is a right which they would have had, as they always have had, without their gracious sanction. It is a right that seldom or never has been or will be exercised whilst the law}^ers understand the advantage of a concluding speech to a jury, and the advantage which a bad cause has in being sub- mitted to the uncertain decision of such a tribunal. In the first place, twelve is a most inconvenient and too large a number for the jury. "We have no distinct historical infor- mation why this number was adopted. Lord Coke conjectures that it was in analogy to the twelve Apostles, or the twelve tribes of Israel, and as no better reason is given in favor of the number by any of the encomiasts or apologists for the system, we may well infer that to be about the best reason which can be given in its favor. "Whatever force such a reason may have had with legislators a thousand years ago, it needs no answer at the present day. Its bare statement carries with it the ex LAW AND CONSTITUTIONAL REFORM . 3G5 position of its absurdity. The whole range of liuman expe- rience in the affairs of life does not afford a solitary example where men of intelligence, in their voluntary private action, have indicated that as the proper number of men to discharge such a duty or function. On the contraiy, men most com- monly refer their private disputes to the arbitrament of a single man, or to that of two men and their umpire. iN'o intelligent man could well be induced voluntarily to refer a heavy and complicated controversy to a mob of twelve arbitrators. If he had confidence in his case, nothing could induce him to do it but the privilege of naming the whole twelve himself. Yet this function of arbitrators, no more or less, is precisely the duty the law ajipoints the jury to perform between litigants who will not voluntarily submit to arbitration. It may well be concluded, therefore, that the judgment and experience of every intelligent man, as evidenced in the management of his private affairs, is against the number as entirely too large. That same unerring guide would seem to point to about four as the largest suitable number, \vith the power in three to control the verdict. A system which thus runs counter to, and thwarts the settled convictions of every intelligent man in society, needs no other exposure to prove its unsoudness, or to show that it is not based upon sound principles, either of justice or policy, and that it owes its adoption and continuance to some antiquated superstition or phantasy — to some motive other than that of promoting the true administration of justice. IS'or do we lack the frequent example of society at large, when voluntarily acting for itself, in modern times, in the formation of governments, equally to prove that the number is too large, and that at most it should not exceed about four. The best example that the world affords on this subject is that to be found in our State Constitutions. A large majority of them, probably four-fifths if not nine-tenths, limit the number of judges to three or four for administering all the large powers of the Supreme Court, or court of final resort in a State. Indeed, practical experience has long since proved to the legal profession that four is the highest number of judges that can advantageously co-oi>erate in the decision of causes, "\^^len more than four, they prove a hindrance rather than aid to each other, and when as many 366 LAW AND CONSTITUTIONAL EEFORM. as six or seven, they partake more or leSs of tlie nature of a mob, an epitliet by wliicli that exalted tribunal, the Su- preme Court of the United States, has irrpverently been cha- racterized by many intelligent men. Upon the mere abstract principle of law, twelve learned judges would rarely disagree ; but in the ascertainment of the facts, and the application of the law to the facts, arise the great difficulty in most causes. It is here that, with all their learning and experience, they neces- sarily and unavoidably disagree. Yet thi^ is precisely the func- tion that twelve inexpert jurors have to perform, and the law neither contemplates nor tolerates disagreement among them. The ancient law of their institution contemplates that they should be coerced into agreement by starvation. Even if they resort to that primitive mode of settling the difficulty, for which they have apostolic sanction, and draw lots for the verdict, this vitiates the verdict, if it comes to the knowledge of the judge, and he is bound to punish them therefor. And here lies the second great fundamental objection to the jury system, the requiring unanimity on the part of the jurors. "Why this pernicious anomaly was engrafted on the system, we are not told by the books. It is based on no example of either the apostles or the twelve tribes. It is sustained by no analogy in any other department of the law or machinery of Govern- ment. It is sanctioned by none of the usages of civilized so- ciety, as indicated by single men or collections of men in the transaction of their private affixirs. On the contrary, the whole individual and collective action of society, whether in dis- charging the duties of members of a convention, members of the Legislature, judges on the bench, trustees of towns or corporations, and private arbitrators, is allowed to be performed by a plurality or some larger majority of votes. Probably, if the whole legislation of England and these States, for a century past, were thoroughly ransacked, not a single instance could be found where a duty of any character, public or private, judi- cial or otherwise, was imposed upon twelve men and unanimity required from them, other than as part of this jury system. It may, therefore, be confidently pronounced to be repugnant to the enlightened, practical common sense of both nations at the present day. If it had none of the sanctity of immemorial LAW AND C X S T I T U T I N A L R E F 11 M . 3G7 usage, and was now for the first time proposed as an oriijinal institution, it would not receive one vote in a, thousand. It is a dark blemish — a sad reproach to the wisdom of English and American jurisprudence. Judge Christian, the learned annotator on Blackstone, says : " The unanimity of twelve men, so repugnant to all experience of human conduct, passions, and understandings, could hardly in any age have been introduced into practice by a deliberate act of the Legislature." The time and cause of its introduc- tion as a part of English jurisprudence, he treats as one of the most obscure and inexplicable parts of the history of the laws of England. He conjectures that the ordinary inquest, like the grand jury, might originally have consisted of some twenty or other number more than twelve, but less than twenty-four, and that out of so many the concurrence of at least twelve was, as it still is with a grand jury, necessary to a finding, and that in the lapse of time, for the sake of mere convenience, they ceased to empanel more than the twelve who were indispens- able to a verdict. Thus, by a mere change of practice as to the number empaneled, unanimitj- in the jury became an ac- cidental innovation upon the system as originally established, and even the dark, barbaric age in which the system had its origin, is not liable to the charge of the folly implied in the voluntary and designed requisition, — that it is in truth an ac- cidental, not a designed, change of the original system, which only required a bare majority, twenty-three being the full number of the inquest. Another not improbable conjecture is, that it ma}- in no small degree owe its origin to the contempt in which the judges of early times held the intelligence and integrity of jurors and sheriffs, before whom inquests were then ordinarily held; deeming nothing less than the unanimous concurrence of the whole of twelve such men as a sufficient authentication of any fact. Of this contempt for jurors we have abundant evidence in the fact that the law required them to be kept without meat, drink, fire, or candle, until they agree in their verdict, and if they would not agree, the judge might have them cartered like malefactors from town to town round his whole circuit. The rigor of this discipline toward jurors 368 LAW AND CONSTITUTIONAL REFORM. gradually fell into disuse, until the judges began to feel a dis- cretionary power over tlie wliole of it, and suiFered nearly the whole to fall into disuse. But it was in truth as much a part of the jury system as the required unanimity, and the judges had in strictness no more power to dispense with the one than the other. If, then, the imputed wisdom and sanctity due to a system, because of its adoption by a remote ancestry of Anglo- Danes or Anglo-Saxons, are to be weighed in the scales, then let us take their system and judge of its wisdom as a whole as they formed it, and not as it has been adulterated by their less remote posterity — the vassals or liege-men of the N'orman conqueror. If modern light and intelligence compel us to abolish part of the system, it cannot be a much greater degree of irreverence toward antiquity if we submit to the coercion of that same light and intelligence in abolishing that other still more faulty part, which was the sole occasion for that se- vere discipline. It must have been an ignorant and barbaric age indeed which compelled a man to swear to return a true verdict according to his own judgment, and then starve him into a violation of his oath, by a surrender of his own judg- ment to that of his fellow-jurors. It is a part of the progeny of that same wisdom, which instituted the ordeal and the trial by battle. They are equally entitled to our reverence and re- spect. It makes or may make the decision of the cause turn upon the question, whether a personal friend of one of the parties may chance to be upon the jury, and whether he can stand starvation better than his fellow-jurors. Even the miti- gated system of discipline employed toward jurors in modern times, is a no inefficient coercion upon men to surrender their consciences for the sake of their personal ease and comfort. It is a snare for the consciences of men. The frequent recur- rence deadens their conscience, and diminishes with society generally, the standard of the moral obligation of an oath, which the law should so sedulously inculcate. It is matter of no little coercion upon ordinary men to be kept for days and nights in a jury room, secluded from their families and business and all the comforts of their homes. Convene tog-ether twelve of the ablest judges of the Union, if they be properly scrupu- lous and regardful of the moral obligations of an oath, and no L A ^Y AND CONSTITUTIONAL R E F 11 .M . 309 temptation would iiuluec tliem to take tlic oath to return a true and unanimous verdict, in a complicated cause dependent upon the contradictory statements of many witnesses, under the penalty, in case of disa^^reement, of being subjected to an indefinite continuance of even that amount of coercion. The}-, each of them, know from personal experience that it is next to impossible they should all conscientiously agree in the same verdict. Indeed, when it is known that a juiy has been for some time hung, it is with a feeling of regret that a conscien- tious man sees them afterwards come into court and announce that they have agreed in their verdict. There is an involun- tary feeling of apprehension that there must have been some- where a straining of conscience. Can a system be right which unavoidably leads to such consequences ? Can a system be right which puts it in the power of a single ignorant, and obstinate, or dishonest man to subject eleven respectable men to such personal hardship and inconvenience ? Can it be right, when it subjects the administration of justice to be thwarted and defeated by a single fool or knave, found among twelve men, accidentally picked up from the mass of society ? Yet such is our jury system, sanctified almost by the use of ages. So sanctified as to render it the extreme of temerity in any man to even attempt to assail it. When any sj'stem of jurisprudence challenges for itself such sanctity and imputed infallibility of wisdom as places it above scrutiny, and all attempts at reform, it ought to be coherent throughout, and at least consistent with itself. ITow the prin- ciples of law are, or ought to be, or at least are presumed to be known certain, or at any rate certainly ascertainable, and not dependent upon the uncertain, fluctuating opinions of the fallible judges appointed to administer the law. It would seem, therefore, that there ought to be no difference of opinion among honest, competent judges in determining what the law is, and it might with much plausibility of right, reason, and policy be contended that no freeman should be deprived of his life, liberty, or property, unless so small a number as oidy three or four judges should concur in pronouncing the law to be against him. Yet, in no instance, either in England or this country, is more than a bare majority of judges required. Xor 47 370 LAW AND COXSTITUTIOXAL REFORM. is this confined to the adjudicating of mere questions of law. The rule is the same as to all questions of fact. By far the most difficult and complicated litigation as to the matters of fact, and by much the heaviest in amount, is on the chancery side of the court. There a single judge decides for himself in the first instance, all questions of fact, though they may involve millions, and his decision is finally reversed by two out of three judges of the court of appeals. N"ay, even in common law causes, when the judges come to supervise the facts, in England a bare majority can set aside any number of verdicts as con- trary to the evidence, and with us two of the three judges of the appelate court can set aside for the same cause two suc- cessive verdicts, even though they were approved by the pre- siding judge in the circuit court. Why is this ? "Why,- when the number of judges is so small, when they are so much bet- ter qualified to understand a case, so much better opportunity and leisure for its proper investigation, and when there is every reason for supposing them so much more apt than twelve jurors to come honestly to an unanimous decision, why are they not required to be unanimous when deciding mere matters of fact ? Simply because the common law held the decision of a jury in such perfect contempt, when it came in conflict with that of a judge, and when the question has been presented to modern legislators, they have deemed it utterly preposterous to allow the opinion of one to negative or control that of two judges. How much more ridiculous to allow the opinion of one juror to control that of eleven others ! Prolix as these remarks may appear to some, they are a mere outline of the objections to the number of jurors, and the rule requiring their unanimity. They are made, principally, in the hope that they may aid in bringing about the necessary reform in our civil jurisprudence. Most of them equally apply to the administration of our criminal code. The number is too large even for criminal cases, and a large majority, such as two-thirds or three-fourths, ought to control the verdict in criminal cases also. Under an arbitrary government, where the governors are a distinct hereditary class, having distinct interests from the governed, the unanimous verdict of twelve men may be a necessary safeguard to the citizen against the oppression of LAW A X D C X S T I T U T I X A L R E F R M . 371 liis Govenimeut But in a mild, paternal Government like ours, where there is no distinction of rights and interests be- tween the governors and the governed, and especially where we have such a mild penal code, enforced with so much leni- ency, there is no conceivable reason of justice or policy ade- quate to prove that the verdict should not be controlled in criminal cases by two-thirds or three-fourths of the jurors. It is believed that public sentiment in this State denuinds a more prompt and certain administration of the criminal law. Every man can readily understand, without explanation, how the proposed change would tend to greatly promote that desirable object. All that is hoped for is, that the Convention shall leave it in the discretion of the Legislature to make trial of such change. It is proposed, in future numbers, further to develop the per- nicious influence of the jury system in the trial of civil causes; its promotion and delay of litigation ; the onerous burden it imposes on witnesses, and those who serve as jurors ; the bur- den it imposes on the State treasury and the pockets of the people ; and thence to infer the necessity of leaving it discre- tionary with the Legislature to abolish the system altogether in civil actions growing out of contract, or, which would be still better, in all actions but such as where the amount of re- covery cannot be measured by any certain rule or standard, or it rests mainly in the discretion of a jury. Also to allow the Legislature, in its discretion, to reduce the number of jurors in civil cases to at least six or seven, and sutler four or five to control the verdict. It is scarcely credible that the English should have so long submitted to the inconvenience and expense of the jury system in civil causes, if it be not in actual practice there a very dif- ferent system from what it is with us. There is good reason for supposing that it is so. There, either party has the privi- lege of requiring what is called a picked jury; that is, a jury in point of character and intelligence much above the average of ordinary juries. He does this at the hazard of being made to pay the extra costs of a special jury only in tbe event the judge shall certify that the cause did not, from its magnitude or difficulty, require such a jury. This is a practice wholly un- 372 LAW AND COXSTITUTIOXAL REFORM. known to us. Here the litigant has to submit his cause to such a jury as he may chance to find in the box, however illy quali- fied they may be for deciding such a case. From the larger amount of population, and consequent greater amount of ma- terial from which to make proper selections, the presumption is that the average quality of their jurors is much superior to ours. But the great point of distinction betw^een the practice under the system there and here is, that there the presiding judge always gives a charge to the jury in both civil and crimi- nal cases, whereas, here, and also in most of the other South- ern and South-western States, he does not. This charge, fol- lowing the concluding speech of counsel, enables the judge to remove or neutralize its undue influence. In his charge, the judge not merely discusses the facts, show^s their true bear- ing upon the point in issue, elucidates the application of the law to the facts, tells the jury what matters of fact or argu- ment to discard from their consideration as irrelevant, but also, whenever he chooses, exercises the privilege of telling them his own opinion on the facts. Such must be the controlling influence of these charges upon the minds of the jurymen that they no doubt, with few exceptions, regulate the verdict. In this way much more certainty and correctness of decision is obtained there than with us. One of the great vexations of the system here, is the uncertainty of obtaining any verdict at all — an uncertainty which is enhanced just in proportion to the amount of time and labor that are consumed in the trial of a cause. A single cause not unfrequently occupies an entire week, at an expense to the Commonwealth of at least one hundred and fifty dollars, and full as much more to the parties, not merely retarding all other business on the docket, but so deranging it as to preclude all certainty for a hearing of any cause during the balance of the term, and still at the end of all this time and labor, the chances are there will be no deci- sion, because the jury cannot agree. But heavy as that griev- ance is, it is light in comparison to the undue and imj^roper influence of counsel, and especially of the concluding speech. In any difficult, contested case, when counsel are well matched, the chances are equal that there will be no verdict, and at least three to one that the jury will be hung, or decide in favor of L A W AND C X S T I T U T I N A L II i: FOR 51 . 373 tlie concluding speech. Tliere cannot well be a greater re- proach to any system of jurisprudence, than that after the parties, theu' counsel, and the court have expended a large amount of time, trouble, and monc}- in having the case tried, there should be so much hazard of mistrial, and the whole of their time, trouble, and money thrown away because the jury cannot agree upon a verdict. But it is a still heavier reproach to our system that the verdict should depend so much upon the concluding speech. That such is the fact, involves neces- sarily no improper reproach upon a majority of our jurors. They are called upon to discharge a duty for which they are wholly unqualified by education, habit, and experience. It requires much habit and training, even on the part of a well- educated lawyer, to recollect and understand all the proof and its bearing upon the point in issue in a cause. It is still more difficult for him on the sudden, and without time for proper reflection, to detect the fallacy of the arguments of ingenious advocates. It is perfectly absurd to expect the ability to do this from ignorant, inexperienced men, such as are ordinarily found in a jury-box. Hence the high estimate placed by dex- terous practitioners upon the importance of the concluding speech, and the great pains they take to secure that advantage for their client. The well known personal and political influence of counsel over jurors is another grievance. It has become a common habit of late to note the political complexion of juries, and bystanders have been able too frequently to predict a split among the jurors according to their party predilections. This improper personal and political influence of popular advocates, together with the uncertainty of any verdict being given, and the still greater uncertainty how the verdict will be, if given, has brought the whole system into disrepute, if not utter contempt, as a mode of administering civil justice. Litigants and lawyers, who have confidence in their cause, always strive to keep it away from a j ury . If a court of chancery has concurrent jurisdiction, or by any method it can be so con- trived as to give the chancellor jurisdiction, they invariably give him the preference. Prudent men will compromise away their riorhts, rather than incur tlie hazard of the issue before a 374 LAW AND CONSTITUTIONAL REFORM. jury. If the system is to be kept up, it must be redeemed from this disrepute. This can only be done by thorough re- formation. As a practical mode of administering criminal justice it is in still worse repute. It has become next to impossible to convict a man of wealth, or one of extensive family connex- ion. This is because of the unanimity required in a verdict, and the facility of packing one or two friends on the jury. It is sufficiently difficult to force such a man to trial. But after he has had one or two mistrials, the prosecuting attorney and witnesses are wearied out with an apparently hopeless pursuit, and relax their vigilance ; the offence being stale, public indig- nation gradually wears out, and the offender ultimately goes quits from mere chicanery and delay. Whilst the prisoner is allow^ed twenty peremptory challenges, it would be right that the Commonwealth should be allowed at least five. This right should be secured to the Commonwealth in the new Constitu- tion, as it is doubtful whether the Legislature possesses the power, and has always refused to grant it. With this right and the power, in eight or nine of the jury, to control the ver- dict, the enforcing of our penal laws would be rendered much more certain. The personal inconvenience of serving on juries is a never ceasing cause of complaint on the part of those citizens who are compelled to perform that duty. The compensation is so inadequate, that it is the next thing to no compensation at all. It not unfrequently happens that men of business could well afford to pay a hundred dollars to be exempt from a single week's service on the jury. Poorer men cannot afford to pay so much for the exemption, but their time is relatively of equal, if not more importance to them. Both classes complain most justly of the loss of their time in attendance upon court, for the hearing of paltry litigation, which they feel and know would be much better settled by the judge, without their in- tervention. They contrast the compensation received by the judge and the lawyers with their own, and feel that they are suffering a sort of oppression. Until the number of jurors is reduced to four, and the class of cases greatly circumscribed in which they are used, the State can never afford to make LAW AND CONSTITUTIONAL REFORM. oT.j tliem adequate compensation ; and this complaint will never cease. It is a burden from which the Government ought most certainly to relieve them, as far as sound policy in the proper administration of justice will permit. Few men of intelligence will doubt that the quality of the justice administered will be greatly improved by abolishing the jury trial in all civil cases, except those where the damages lie mainly in the discretion of a jury. Ko man can doubt that the quality and conduct of the jurors wall be equally improved by reducing the number to four or six. It is difficult to imagine any adequate reason why they should not be relieved to the extent of these salutary changes. The only reason now recollected as ever having been given for keeping up the system is, that it is a mode of teach- ing law to the people, and disseminating legal information through the community. It is doubted whether any man would estimate it at the value of five dollai-s all the legal information he ever picked up by serving on a jury. The old maxim is as true as trite, that a little learning is a dangerous thing. It is especially true in reference to the law ; more so, perhaps, than any other department of knowledge. The best informed law- yers never act as their own advisers, but, like skilful physicians, call in the aid of a brother of the craft. The profession has an axiom that the lawyer who is his own counsel has a fool for a client. Any man who would venture to apply the few scraps of law picked up by serving as a juror to the regulation of his private affairs, would be more generally injured than benefited. At any rate it is a most costly mode of teaching. There would be great economy in employing competent professors, at ade- quate salaries, to traverse the State and deliver public lectures. If all the loss of time to litigants, jurors, and -witnesses, which is caused by the jury sj'stem, could be summed up and added to what is paid to jurors, clerks, sheriffs, and law3'ors, from the same cause, it would produce a sum nearly adequate to main- tain a system of common schools. It matters not that onh* some twenty or thirty thousand dollars of this large amount comes annually from the public treasury, and that it goes prin- cipally into the pockets of lawyers and officers of the court, and not into the coffers of the State — it is still an indirect tax 376 LAW AND CONSTITUTIONAL REFORM. paid by our citizens, and improperly, because unnecessarily im- posed upon them by our system of Government. Large as is the grievance to those who serve as jurors, it is many times still more upon those who have to attend as wit- nesses. Because a man happens accidentally to be privy to a transaction between two litigants, he is liable to be dragged from a distant county, and compelled to give his personal at- tendance for the inadequate compensation of fifty cents a day. Even when he resides in the same county, it is no small bur- den for him to be compelled to leave his private business and attend court for days together, twice or three times a year, for several years in succession. If there is a press of business, or from any cause the docket becomes deranged, neither judge, clerk, nor lawyer can tell him certainly the day, much less the hour, when the cause will be called ; yet he is compelled to be present at the very minute. If from misinformation, or other- wise, he is accidentally absent at the proper minute, he is at- tached for contempt ; and if not fined, he is let off" by paying the costs of the attachment, and giving a recognizance for his attendance at the next term. Such is the facility of obtaining a continuance, that it is believed a dexterous attorney can never be forced into a trial, where his client has five or six material witnesses, unless the witnesses themselves will voluntarily aid in forcing him to trial. That business is not generally thus ^vilfully procrastinated, because the attorneys are paid by the job, and not for each continuance. Now this presents a case of no small hardship upon citizens, who are compelled to at- tend as witnesses, upon the litigation of other men with which they have no sort of personal concern. This hardship will be more severely felt and complained of, when it becomes gener- ally known to be an unnecessary burden imposed by the Gov- ernment, as a part of jury trials, from which true policy requires them to be relieved, without any hazard to litigants in nine hundred and ninety-nine cases out of every thousand that occur. Except for the jury trial, the convenience of a witness might be consulted ; and, after an average attendance of fifteen or twenty minutes before some officer appointed to take the proof, his testimony could be written, and he thus relieved from all further concern about the litigation for the balance LAW AND CONSTITUTIONAL REFORM. 377 of his life. It may be asked why he is not now so relieved from personal attendance on court ? The answer is, that the only pretext for a preference in favor of the jury trial, in any case, except those of tort,, is from the superior advantage a viva voce examination of witnesses, in the presence of the parties and the court, is supposed to afford for eviscerating the truth, and unmasking fabricated testimony. If the proof were ahowed to be taken by depositions, then there would be no pretence for the jury trial in nine-tenths of the cases where it is now used, and personal attendance of witnesses is enforced in that large majority of cases for no good reason which can be per- ceived, but for the purpose of preserving the semblance of an excuse for keeping up the jury system. It may be conceded that there is a very small class of cases that will be better un- derstood by judge or jury from an orc-tenus examination than from depositions, and that there are some witnesses fi'om whom the truth can be better extracted in that mode. But it is witliin the personal knowledge and experience of every laAvyer that this kind of case and witness are the rare exception, not ex- tending beyond one in the hundred of cases, nor one in the five hundred of witnesses. Why should our whole system of jurisprudence be regulated with a view to these rare excep- tions exclusively, instead of being adapted to the so much larger number of both cases and witnesses ? Why not sutler these cases to constitute an exception, in which either party may have the selection of the jury trial, upon the pa3-ment of the extra costs, according to the plan pursued in England of allowing special juries? The number of cases for jury trial would then be so small that the parties could attend on the assigned day, with some degree of confidence in obtaining a trial. Even where there was no jury, for the cause shown, an ore-tenus examination could be had of all the witnesses, or only some of them, or only in relation to a particular jioint. The notion which once obtained among common law lawyers of the preference of jury trials for investigating matters of fact is nearly exploded. The chancellor still has, as formerly, the right of directing issues of fact to be tried by a juiy, but he has derived so little benefit therefrom that the practice lias be- come almost entirely obsolete, and is never resorted to now 48 378 LAW AND CONSTITUTIOXAL REFORM. but for tlie purpose of dodging a responsibility which properly should be shouldered by the chancellor himself. We have a striking exemplification through the two courts sitting in Louisville of the relative merits of the modes of pro- cedure. The common law court having four terms in the year, and the chancery court sitting every week, all the business prepared for hearing, before either court, is promptly dis- patched; yet such is the supposed superior certainty in the decision and regular dispatch of business in the chancery court, that no contested case is ever carried into the common law court which by any contrivance can be brought into chancery. From this or other causes, full two-thirds, if not a larger por- tion, of the important litigation of this city and county is car- ried on in the chancery court ; and it is believed that the num- ber of appeals, in proportion to the amount of litigation, is as small or smaller than from any common law court in the State. Experience has proved that three or four weeks is ample time for the defence, preparation, and hearing of a large majority of the cases brought before that court. The opportunity of examining the whole proof on paper, and having the witnesses re-examined, and examined again before hearing, together with the total absence of all such improper arguments as are com- monly used to juries, the eifect of which cannot be known, causes the unsuccessful party to retire much better satisfied than he ordinarily is from a defeat before a jury. The practical experience of Louisiana is also strongly illus- trative in the same way. There either party has the privilege of demanding a jury trial, but the right is seldom exercised, and the consequence is, that litigation is dispatched with more certainty, promptness, and satisfaction to the parties than in any other State of the Union. The truth is, that a chancery cause with ten witnesses on each side, can be prepared forbear- ing with more certainty in three weeks, than a common law cause, w^ith only two witnesses on a side, can be got to a hearing at the first term. The reason is, that the deposition of a wit- ness can be taken under interrogatories at any hour of any day that may suit the convenience of the witness, and if any of them chance to be sick, their depositions can be taken at their homes ; whereas, in a common law suit, the parties and their witnesses must all be present at the uncertain minute, of an uncertain LAW AND CONSTITUTIONAL REFORM. 370 day, when the cause may chance to be called. Another great advantage of the chancery mode is that testimony is seldom lost, and much less liable to be lost, after suit brought, by the death of witnesses. Other avocations will prevent the further extension of these remarks on the grievances of our juiy system, as was originally intended, in future numbers. The writer will close with respect- fully submitting to the consideration of the Convention the following amendment, in lieu of the present clause of the Con- stitution : "The ancient mode of trial by jury, in all prosecutions for penal offences on behalf of the Commonwealth, shall be held sacred, and the right thereof remain inviolate ; except the Legislature may define the causes for which the Common- wealth may challenge jurors, and allow challenges in her behalf, without cause shown, not exceeding five in number, and may also allow three-fourths of the jury to render a verdict." It is believed that the adoption of this amendment will send the subject to future Legislatures, wdth such force of recom- mendation from the Convention, as will induce them to take it into serious consideration, and from time to time experiment- ally adopt such changes in the jury system in civil causes as necessity shall point out and experience shall warrant. It would, of course, be much better if the Convention would at once order to be done what ought to be done, and not leave it to legislative discretion.. But as the subject is comparatively new, and as political men are instinctively timid in touch- ing all such questions, where there has been no opportunity of feeling the popular pulse, it may be best not to hazard all chance of reform by seeming to grasp at too much. There is another cause, besides the sanctity of an immemo- rial usage, which has so long preserved the system of jury trials in the States of the Union, l)ut direct reference to it has been forborne, as it could not well be made without some readers inferring an implied censure on the members of the writer's own profession, and his thereby incurring the hazard of having ascribed to him the arrogant self-assumption of ex- emption from the same fault. This arrogance he is so far from feeling, this censure he is so far from defying, that he is not willing even to incur the hazard of the imputation. 380 THE NEW CONSTITUTION OF KENTUCKY. CHAPTER XIX. February, 1850. THE NEW CONSTITUTION OF KENTUCKY. No. I. " Men are generally more honest in tlieir private than in their public capacity, and will go greater lengths to serve a party than when tlieir own private interest is alone concerned. Where a great body of men act together, the check of honor is removed ; since a man is sure to be approved by his own party for what promotes its interest, and he soon learns to despise the clamor of adversaries. " Of all men that distinguish themselves by memorable achievements, the first place of honor seems due to legislators and founders of States, who transmit a system of laws and institutions to secure the peace, happiness, and liberty of future generations. As much as legislators and founders of States ought to be honored and respected among men, so much ought the founders of parties and factions to' be detested and hated. Factions subvert government, render laws impotent, and beget the fiercest animosity among men of the same nation. They rise most easily and propagate fastest in free governments, and are most difficult to eradicate. " When the people of Rome became very numerous, they were cajoled by every one that affected popularity, and were supported in idleness by the general distribution of corn and by bribes, which they received from almost every candidate. By this means they became every day more licentious, and the Campus Martins w^as a perpetual scene of tumult and sedition." So says the celebrated philosopher and historian Hume. In which of his categories are the members of the late Con- vention to be placed ? In that of the wise founders of stable THE NEW CONSTITUTION OF KENTUCKY. 381 institutions, fit to secure tlie peace, liappincss, and liberty of future generations ; or as the founders of factions, by erecting a feeble government whicli invites tlieir assaults, and rewards them for corrupting it, and tiiereby rendering peace, happiness, and liberty insecure ? The short experience of fifty years gives no reason to sup- pose that our own is to escape the doom of all other free gov- ernments, and become the prey of political factions. AVe have rioted for half a century in the enjojTuent of an excess of liberty and prosperity, such as no other people knew. We have ceased to know, and become careless to inquire, what it is that has given us this liberty and prosperity. Instead of looking to and gratefully acknowledging the Government founded by our fathers, as the source of all, we repine at the slight restraints under which they placed themselves, as well as us, for our benefit and that of our posterity. We are arrogating to our- selves that we are a peculiar and chosen people, whom God has set apart for the reception of his peculiar, if not exclusive blessings, above all the other nations of the earth. "We have grown to that excess of folly to believe that, as a chosen people, we need no self-restraint, and may indulge freely even in licen- tiousness, without any peril to our liberty. "We forget, what all history proves, that every government must come to an end, and that death is its inevitable doom, as it is that of individual man. Like the lusty, riotous youth, we may know that it must die, but we take no care to preserve its healthful action, and thereby increase its longevity. Unmindful of that debt of patriotism which every generation owes to its successors, each one contents himself with believing it will last his time, and bids posterity take care of itself. Such was not the sense of duty of the men who framed our Government. They considered their powers as a sacred trust, which should be exercised as much for the remotest posterity as for themselves. Has experience thus far warranted the belief that they were over-cautious, and too much afraid of the influence of political factions ? Have we had no demagogues or popular parasites, no political factions carrying on inveterate, reckless contests for the public spoils, for all such as have been within their reach? Have we had no action of political parties to prove 382 THE NEW CONSTITUTION OF KENTUCKY. the triitli of Hume's words, that the personal honor, which is so salutary a restraint upon the private individual, is lost in the politician, or he who becomes a heated political partizan ? Is not the Union itself, at this moment, in actual peril from the selfish manoeuvres of the two great political parties, to make advantage each to itself out of the action of a contemptible faction of abolitionists ? Did not the House of Representatives spend a whole month in fruitless efforts to organize itself for business? Is not the same true with regard to the Senate of Ohio, at the present, and its House of Representatives at the last session ? Have we not seen the Senate of Pennsylvania purged by a mob ? Have not poll-books been suppressed and altered in our State and elsewhere ? Is not bribery at elections and all manner of frauds upon elections rife in the land? Surely these are no inducements for breaking down all safe- guards and throwing the whole patronage of the Government into the arena, as additional incentive to these strifes, and as the abundant means with which still further to corrupt our elections. The question was raised in the first Congress held under the Federal Constitution, whether the President had power to remove ofiicers who were commissioned during good behavior at his mere will and pleasure. In answer to arguments based upon the possible abuse of such power, for the purpose of rewarding political partisans, Mr. Madison and other distin- guished members contended that no such abuse of power could ever arise — that it would excite the indignation of the whole nation, would be punished by immediate impeachments, and the Senate would hurl from his seat any President who dared so to act. What a contrast between the political principles of that day and this ! It is now the accredited dogma of both the great political parties, for they have both freely acted upon it, that such rewarding of political partisans with the Govern- ment spoils is the very purpose for which the people elect their President, and that he is a traitor to his party who does not' so reward them. The pmctical workings of this spoils system has been to throw the whole powers of the Federal and State Governments into the hands of parties. We have no officers but of their THE NEW CONSTITUTION OF K E N T U C IC Y . 383 giving. From the liiglicst to the lowest, we luive no ulHccrs but of their providing. Freedom of suffrage no longer exists but in name. We are, all of us, the irreclaimable doomed serfs of one or the other of these parties. AVe must vote ac- cording to the dictation of their corruptly appointed and cor- ruptly constituted caucuses, or we have no vote. We have not even the poor comfort of throwing away our votes on some adventurous candidate wdio is the nominee of neither party. Such efforts have so frequently and uniformly proved abortive, that we no longer have any such candidate. Sw'orn allegiance and blind obedience to party, are the indispensable pre-requis- ites to any candidate for any office. Such is the fact now, when full four-fifths of the patronage of our State Government is so locked up that it cannot be got at directly through the elections. AVhen these four-fifths are thrown into the arena, we add that much more to the motive for party combinations — w^e add that much more to their means of corruption, and of course to their power of enforcing blind obedience to their vile mandates. To adopt this scheme is, at once and forever, to throw the whole powders of government into their hands. Once gone, the people can never reclaim them. A majority of the people will constitute the dominant party, and a domi- nant party was never knowm to relax its hold of powder or the means of corruption. The political men who have fashioned this scheme are cheer- ing themselves with the flattering hope that it is to prove an easement to their private purses, and that they are to pay their way to political preferment with the public spoils. But not so. God, in his organization of the human fiimily, has pro- vided that such motives shall not escape a retributive jus- tice. Instead of using their money, as heretofore, in buying votes at the polls, they will have to spend it, and more of it, too, in buying votes for delegates to party conventions, or in buying the delegates themselves. Men wall become dele- gates for the purpose of selling themselves to aspirants. There will be in their own party as active a competition for the nomi- nation, and one full as difiicult to manage, as the pretensions of the opposite party. It will be a saving of expense to no one. The price of nothing increases more certainly and rapidly 384 THE NEW CONSTITUTION OF KENTUCKY. by the frequency and enlargement of tlie use tlian that of bribery. In England, where it has been in use for a century, in despite the severest penal laws, the expenses have become enormous. The known expenses of a single election in Liver- pool were eighty thousand pounds sterling, or ^400,000. The regular expense of an election to the two parties in the city of New York is never less than |100,000. The late election in Louisville of delegates to the Convention is said to have cost the candidates and their friends not less than $10,000. The tax paid to carry on elections will soon be the heaviest burden to property-holders in carrying on our State Govern- ment. They "v^'ill not permit themselves to be ruled by dema- gogues without an effort to prevent it. Men will make a prac- tical state of things out of every situation in which they are placed. To obtain a participation in the Government, they will have to submit to a voluntary taxation for the purpose of briber3\ The practice will become so common that there will cease to be any of that tittle of concealment and shame about it which is still left. In England, comfortable livers, well-do- ing mechanics, men who stand fair and are trusted in their business, church-going men of good standing among their neighbors, openly and unblushingly sell their votes. So it will be with us. There they have the balance-wheels of the throne and the peerage to correct the excesses of popular corruption. "We have no such conservative principle. When you corrupt the stream at its source, it must continue corrupt throughout its ramifications. The Government must become one mass of corruption in all its departments. A republic has no safe basis but that of an uncorrupt and incorruptible people. Governeur Morris, one of the shrewdest and most talented men this country has ever produced, said, forty years ago, that time would prove that the democracy had been guilty of a short-sighted policy in adopting the system of universal suf- frage. That under that system, whenever the population be- came dense, and the poor outnumbered the property-holders, the heaviest purse must always carry the elections. We al- ready begin to see the sagacity of the remark and the probable fulfilment of his prediction. The aristocracy of England so understood the matter, or they would not have agreed to the THE NEW CONSTITUTION OF KENTUCKY. 385 recent reduction in the property qualification of voters. Tlio reduction they view as enlarging the field of hribery, and so increasing the influence of property. In order that they may not be cheated in their bribery, they have steadily refused the vote by ballot. Have our politicians been influenced by a simi- lar motive in refusing the vote by ballot to the people of Ken- tucky under their new Constitution ? Party caucuses and party conventions are to become tlic sole appointing power in our State. Every officer will virtually owe his office to their appointment. Without their nomination, no man can or will be elected. This is almost literally true, as to all elective offices, even now. These party caucuses and con- ventions will be composed of, or created by the very dregs and ofF-scourings of party — political hacks, men who make a trade of managing elections and live by it, seekers after the crumbs of patronage, election-bullies, and drunken grog-shop politi- cians. The mass of the voters of neither party will have any controlling say in their creation, or the exercise of their powers. Sober, industrious men of property, who stay at home and mind their own business, and who pay by taxes nearly all the expenses of the Government, will be virtually excluded from all influence in its administration, because they will not mingle in the polluted orgies, where these caucuses and conventions are manufactured. All this was well known by the practical politicians who filled the Convention. Why, then, when they were thus throwing all the patronage and practical powers of the Government into the hands of these conventions, was not some provision made for having them created and conducted upon some fixed principles of fairness and justice? As they are to become the great controlling, almost despotic power of the State, surely nothing could be more worthy of the serious consideration of the Convention than the devising some plan for controlling, upon just principles, the mode of their creation and the exercise of their powers. If it be answered that no such mode can be devised, then why so frame the Government as that its unavoidable practical action will be to throw the whole of its patronage and most of its power into such corrupt and irresponsible hands? Why extend the mischief beyond what any considerable portion of the people had desired, by 49 386 THE NEAV CONSTITUTION OF KENTUCKY. throwing all tlie offices, big and little, without any discrimina- tion, into the ballot-box ? All officers for the State at large, and whose duties do not pertain to some county or district business exclusively, must be elected by the votes of the peo- ple of the whole State. Even a librarian to a paltry State library, or a keeper of the State-house, must be so elected. 'No considerable portion of the people demanded the election of even the Treasurer, Auditor, Register, or Attorney-general. Every man of sense and candor will admit that all such ap- pointments would have been better made, and should there- fore have been left with the Governor and Senate. To require one hundred and fifty thousand voters to determine who should be Register, or who fill the office of Attorney-general, with a salar}" of three hundred dollars, is to make a mere mockery of elections. Yet no doubt there was a motive for this. One mo- tive is quite obvious. It was necessar}^ to make these offices elec- tive, in order that there might be a batch of candidates, whom the party could tax to defray the election expenses of the Central State Committee. This indicates the most careful forecast and attention to all the minutioe of the wants of party. No rational motive, based on sound views of State policy, could have in- duced this foolish arrangement. No man believes that one- tenth of the voters of the whole State can be induced to take any interest in the question of who shall fill these minor offices, or even the more important offices of Auditor and Treasurer. Men best qualified to fill these offices seldom or never have a very extended reputation. They are but little known out of their respective counties. To say that they shall be elected by all the voters of the State is nominally giving their appoint- ment to the people, but actually giving it to somebody else ; for the mass of the people, full nine-tenths, never will take the trouble to obtain the information necessary to a selection. We all know who will have the making of these appointments — that they necessarily and unavoidably will belong exclusively to irresponsible party conventions. The Constitution of New York authorizes the Governor to suspend the powers of a tricky treasurer until the meeting of the next Legislature. Whilst freely copying so many bad things from that Constitution, why was not that salutarj^ pro- THE NEW CONSTITUTION OF KENTUCKY. 387 vision also copied? It is not even required tliat the treasurer shall give sccuritj for the safe custody of the puhlic money, nor is the Legislature directed or permitted to require it to be done. The Legislature has power to regulate his duties in office, but it is doubtful, as he is elected by the people, Avhether it could prescribe a condition or qualification to his entering into office. But the better opinion is, that in analogy to what has heretofore been done under the old Constitution, such securit}' might be required from him, if unfortunately the Constitution did not expressly say that clerks, sheriffs, surveyors, coroners, constables, and jailors should give bond and securities before entering on the duties of their offices. Having thus carefully enumerated the officers from whom security shall be required, all construction is precluded which, from analogy and other- wise, would go to enable the Legislature to require security from the treasurer. The special enumeration of certain officers, from whom security shall be required, wholly precludes the 'idea of its being required from any other officer named in the Constitution. This is the undoubted legal construction of the whole instiTiment. Negligence or ignorance must be the scape- goat for this want of security in the safe custody of the public treasure. It is true that it might prove a most convenient thing to a party to have free access to the treasury, through the instrumentality of an insolvent treasurer of their own appoint- ing, but so base a motive could with no propriety be imputed to any member of the Convention. Still, the danger to the State is just the same as if it had been actually intended. That such use shall not be made of the public money, we will not be indebted to the prudence and forecast of the Convention, but merely to the personal integrity of each treasurer. Should the treasury be robbed for that or an}- other purpose, and the State have no indemnity, it will afford but little consolation that it was the mere negligence of the Convention which pre- vented the State from obtaining proper indemnity. The Government will commence its career under bad aus- pices for the sanctity and security of the public treasure. That act of unparalleled impudence on the part of the members of the late Convention, in thrusting their hands into the treasury, and helping themselves to more than the people had allowed 388 THE NEW CONSTITUTION OF KENTUCKY. them as pay for tlieir services, is of dark boding for the future. "When such an act can be pointed to as a precedent set by the founders of the Government, what may not be anticipated from the corrupt action of political parties ? K it could be conceded that they had the lawful power to take the money, still it could not be considered as a fair transaction between men in mere ordinary business. But when considered as a wilful violation of the highest and most sacred trust known among men, the fault becomes very grave. If they were not content with the compensation which the people had allowed, and meant to avail themselves of the supposed power to take more, every principle of fair dealing required that they should have ap- prised the people of their intention before their election. Did a solitary man of them do this ? Could any one of them have been elected if he had made such an avowal ? But when we recollect that they had no lawful power to take the mone}^ the transaction looms far above the region of mere effrontery — it becomes a usurpation, that highest crime against a republic. Some of their leaders, who arrogate for themselves such super-eminence of wisdom, had early in the session startled the community by madly proclaiming that they had power to do anything and everything not prohibited by the Federal Con- stitution, and consequentl}", that they held in the hollow of their hands the life and fortune of every citizen, all subject to their arbitrary will and caprice. Power to do anything and every- thing ! Why the very reverse of this detestable dogma is almost literally true. They had lawful power to do nothing, absolutely nothing, but that one single thing for which they were appointed — that is, to make a Constitution. Their whole power was derived from the old Constitution, and is embraced in the unambiguous words, wdiicli say that the delegates shall meet " for the purpose of readopting, amending, or changing this Constitution." That was their whole authority. They had none of that undefined and undefinable divine right which monarchists, a century ago, ascribed to their kings, and which a few would-be slaves in this country are willing to ascribe to a majority of the people, whilst in their natural state, before the institution of defined government. But whatever the slaves, or would-be slaves, of either hemisphere, may think of this long THE NEW C X S T I T U T I N OF KENTUCKY. 080 exploded and now almost universally ridiculed dogma of the divine right, it can have no application to the powers of the Convention. Those powers are indisputably of human institu- tion alone, and derived exclusively from the old Constitution. The power to make a Constitution and the power to administer the Government are very distinct and difi'erent things, — tlie for- mer embracing no part of the latter in any shape, mode, or form whatever. The line of demarcation between the two is broad and distinct. There is no blending or unavoidable ming- ling. The distinction between them is and always has been acknowledged and well understood throughout the Union. Of the sixty or more conventions which have sat in the United States, not one of them has ever dared before to attempt to cross the boundary and usurp administrative power. Most of those conventions received no compensation what- ever for their services ; or if any, only such as the people gra- tuitously accorded to them after the Government got into opera- tion under the constitutions which the conventions made. The men of 1792, who framed our first Constitution, not only got no pay, but felt' themselves amply rewarded by the honor which so distinguished a trust conferred on them. The power to pay themselves, at their own discretion, out of the treasury, is therefore not at all a necessarily or implied power of the mem- bers of the Convention, but is contrary to the practice and understanding of the whole American people. No convention ever before attempted to pay its own members. To give even the figment of legal validity to their order on the treasury, it was clearly indispensable that they should have eno-rafted the order into the Constitution itself. As all the power they possessed was merely to make a Constitution, of course they could exert no power but through and by means of the Constitution. But that would have been a mere figment, which would have given the order no additional validity, unless, indeed, a ratification by the people might legalize it. Upon the same principle they might have helped themselves to ail the money in the treasury, or, if that was not enough, enriched themselves and their relations by the confiscation of individual property. Principles wliich lead to such consequences cannot be tolerated by freemen. Indeed, they received a most admi- 390 THE NEW CONSTITUTION OF KENTUCKY. rable rebuke from a large majority of the Convention, in an amendment to the bill of rights, which declared that absolute, arbitrary power exists nowhere in a republic — not even in the largest majority of the people themselves. Of course no such power can attach itself by mere inference to any delegates of the people for the performance of a specified defined duty. The bill of rights did not need this amendment — the principle was there before ; but those apostles of absolutism needed and deserved the rebuke. The pretension having been made, it was right to crush it at once and forever. So the act of the Convention, in unlawfully abstracting this money from the treasury, needs- and deserves from the Legis- lature the most solemn rebuke. Two or three thousand dollars may be a trifling matter to the State, but the principle upon which it was abstracted from the treasury is of incalculable importance. As an unchallenged precedent it might work infinite mischief hereafter. It is a question far above mere party ties, or the obligations of personal friendship toward the members of the Convention. Suits should be ordered for the recovery back of the money. There is not room for a fair legal doubt that the money can be had. iTo.n. ELECTIVE JUDICIARY. It will be impossible, even in a brief manner, to go into any discussion of the importance of a stable and independent ju- diciary ; but it may not be amiss, before portraying what our judiciary are to become under the new Constitution, to refresh the memory of the reader by a few short quotations from what some of the wise men of England and this country have said on that subject: "Men engage to establish political society in order to ad- minister justice, without which there can be no peace among them, nor safety, nor mutual intercourse. We are, therefore, to look upon all the vast apparatus of our Government as hav- ing ultimately no other object or purpose but the distribution of justice, or, in other words, the support of the twelve judges. King and Parliament, fleets and armies, officers of the court THE NEW CONSTITUTION OF KENTUCKY. 301 and revenue, ambassadors, niinisters, and privy counsellors, are all subordinate in their end to this part of administration. Even the clergy, as tlieir duty leads them to inculcate morality, may justly be thought, as far as regards this world, to liavo no higher object of their institution." — Hume. " Personal security and private property rest entirely upon the wisdom, the stability, and integrity of the courts of justice. In monarchical governments the independence of the judiciary is essential to guard the rights of the subject from the injustice of the crown ; but in republics it is equally salutary in protect- ing the constitution and laws from the encroachments and the tyranny of faction." — Kent. " Whatever may be supreme in a State, the judicial authority should be so constituted, as much as possible, as not only not to depend upon it, but in some sort to balance it. The State ought to give security to its justice against its power. It ought to make its judicature, as it were, something exterior to the State." — Burke. "The manner in which this is to be accomplished must mainly depend upon the mode of appointment and the tenure of the office of the judges." — Story. " The standard of good behavior for the continuance in office of the judicial magistracy is certainly one of the most valu- able of the modern improvements in the practice of govern- ment. In a monarchy it is an excellent barrier to the despot- ism of the prince. In a republic it is a no less excellent bar- rier to the encroachments and oppressions of the representa- tive body. It is the best expedient which can be devised to secure a steady, upright, and impartial administration of the laws. " Liberty can have nothing to fear from the judiciary alone, but would have everything to fear from its union with either of the other departments. As from the natural feebleness of the judiciary, it is in continual jeopardy of being overpowered, awed, or influenced by its co-ordinate branches, and as nothing can contribute so much to its firmness and independence as permanency in office, this quality may therefore be justly re- garded as an indispensable ingredient in its Constitution, and, 392 THE NEW CONSTITUTION OF KENTUCKY. in a great measure, as the citadel of the public justice and public security." — Madison. It was from a confident belief in the wisdom of such opinions as these that the members of our conventions of 1792 and 1799, and the members of some sixty other conventions held in the diiFereut States to establish or revise their Constitutions, gave" a life tenure to the judicial of&ce. This was not done at all for the sake of the individual men who might chance to be the incumbents, but entirely and exclusively for the sake of the institution itself. It was well known that incompetent men, and even bad men, might be appointed to office — that such a hazard was incident to every mode of appointment ; but still it was thought much better to risk the evils of an oc- casional bad appointment than to shake the independence of the whole department by having the judges appointed for only a term of years. Besides, it was thought that in an economi- cal Government like ours, where none but low salaries would be offered, it would add to the inducement to competent men to quit their business and accept the office if it were made permanent. Short terms and the privilege of reappointment would not do, because it was believed that would render a judge subservient to the appointing power, and because it would give too much power to the Governor. Besides, the frequent recurrence of such patronage in his hands would ren- der the judicial offices the objects of contention between po- litical parties. The permanency of the tenure would render the occurrence of vacancies so infrequent and uncertain as to prevent such contentions ; and if the Governor should be in- fluenced by party considerations in filling the few vacancies that might happen in his term, still the permanency of the term would be a sure inducement to the judge to obey the promptings of liis own pride of character, and cast himself free from the trammels of all party ties. Thus far this anticipation has been almost universally fulfilled throughout the United States. The judges have forgotten their party ties and obliga- tions as soon as they become seated on the bench, and, whilst the other departments of the National and State Governments have been badly corrupted by party action, its maligu influence has nowhere soiled the judiciary. THE NEW CONSTITUTION OF KENTUCKY. 393 The action of tlie late Convention speaks loudly in holiiilf of tlie Kentucky judiciary in this regard. "Whilst stripping the Governor of nearly all power, and curtailing that of the Legislature in many particulars, in some perhaps iujuricjusly, they have taken away none of the vast powers of the judiciary, nor thought it necessary to place any additional guards for in- suring their proper exercise. This is the highest possible tribute to the pure and safe working of the old system, and an ample acquittal to the judiciary of Kentucky from having, in any important degree, abused their power. No sj-stem could possibly earn for itself a higher encomium. Is it not near akin to sheer madness at once to cast aside the whole of such a well- doing sj'stem, and recklessly plunge the State into the career of an untried experiment ? If the old system needed any further illustration of its ex- cellence, beyond the successful trial made in all the States of this Union, it can be found in the judiciary system of England. For a century she has had a body of judicial magistrac}', which, for eminent qualification, fidelity, and purity, cannot be paral- leled in the history of any other country, not even our own. At least we have not yet equalled them in qualification. By reason of this, her citizens have the enjoyment of all the sub- stantial benefits of practical freedom, under an hereditary throne and peerage, and despite the constant agitations kept up by corrupt political factions. "Why put the whole of such a system at once to hazard upon an untried experiment, under a Constitution, too, which its authors, in their self-sufficiency, have taken care to make the most difficult to be reached of any in the Union ? They could have suffered the appellate judges to have been appointed as heretofore, during good behavior, and elected the inferior judges for a term of years, or have suffered the mode of ap- pointment and tenure of the latter to remain, whilst the appel- late judges were elected for a term. Either plan would have enabled us to experiment with a part whilst the rest remained out of danger, until experience had tested the efficacy of the new scheme, and justified us in bringing the whole under its influence. Or the people would have been avcII content, if the Convention, from motives of prudence, had made only two of 50 394 THE NEW CONSTITUTIOX OF KENTUCKY. the appellate judges elective, leaving tlie otlier two to be ap- pointed by tlie Governor and Senate. There are various other modes by which the new experiment could have been put to the test of practical experience, without periling the whole system, l^ot to have used some such caution, bespeaks noth- ing but the arrogance of self-conceit in the all-sufficiency of the wisdom of the Convention. If all the judges were to be elected, and for a term of years, there was still nothing in public sentiment, or the pledges of the members, which required that the judges should be re-eligible. That is the worst feature of the whole plan. We might well have been spared all the evils of at least that much of the experiment. Thus far a discussion of the relative merits of the old and new plan for electing judges, if they have had serious discus- cussion anywhere, has been confined mainly to the question of the competency of the people to make proper selections, or of their superior competency to the Governor and Senate. But that is neither the whole question, nor the true question. Are the people actually or only nominally to have the election of the judges ? That is a preliminary question, which, if decided on the latter alternative, ought to settle the whole controversy ; whereas, if decided the other way, the main question is only then opened up for fair discussion. If it could be shown that the judges are to be elected with an exclusive eye to the rela- tive personal pretensions of the candidates, and that the people were to make their choice between them, after an honest, can- did interchange of information and opinion between neighbor and neighbor, without any extraneous bias from ordinary elec- tioneering tricks, and without the influence of any party obliga- tions, then there might be ample room for much honest differ- ence of opinion as to a preference between the two plans. But unfortunately this cannot be shown. This is not the manner, nor these the circumstances, under which the people will decide an election. They will actually have but very little hand in the election. The power of appointment will be taken out of their hands, and usurped into those of a self-appointed set of agents called party conventions. These will make their nomi- nations exclusively, because the nominee is either a Wliig or Democrat ; and the people, or nearly all those who vote, will THE NEW CONSTITUTION OF K E N T U C K Y. 30o cast tlieir suiFrage, because the voter is for or against a tarift* for or against a sub-treasur}-, or on account of his views con- cerning some such point of diftereuce between tlie two great political parties. This is no speculation, no mere matter of conjecture. Un- fortunately we foreknow its truth as certainly as if the thing had already happened. How is it with regard to all the elective offices now within the gift of the people, — are they not all tilled in that w^ay? With this personal knowledge and experience of every man, is it possible that the great mass of the people have been gulled into the belief that they were really to have the appointment of the judges, and that an election of judges was to constitute an exception to all other elections ? There is not the slightest ground for even hoping that their election will constitute any such exception ; on the contrary-, there is every reason for knowing that it will not. Patronage or power never yet came within the reach of any political party that it was not seized and used. But there are peculiar circumstances attend- ing our situation which must put this matter beyond a doubt. The Democratic leaders have gone into this reform movement, if not exclusively w^ith the view and hope of obtaining thereby a party ascendancy, yet so at least the Whig leaders believe, and are fully determined to balk them in the elibrt. Promi- nent Democrats have taken no care to disguise their belief that the movement will have the eifect of throwing a majority of the offices into the hands of Democrats. This the AVhigs also greatly fear. Now, w^hether it be a law of all minorities, or only something peculiar to the Democratic party of Kentucky, it is very little liable to split, and its whole force can be brought out and combined for any purpose desired by their leaders, without the public demonstration of those efforts at organiza- tion which seem to be so indispensable to Whigs. This the latter well know, and therefore will not trust to any seeming quiet on the part of Democrats, nor to any of their professions or protestations that party ought not to be mingled in the elec- tions, especially where these are made in Whig counties and districts. The Whigs will not soon forget that it was by the ciy of " no party " the Democrats obtained a majority in the Con- vention. Whig organization to secure the safety of the party 396 THE NEAV CONSTITUTION OF KENTUCKY. will be a sort of law of necessity, carrying with it, as a matter of course, Democratic organization, even if we had reason for supposing these two parties at all exempt from that thirst for power which is natural to every political party. The inevitable consequence is, that party Conventions will become the sole appointing power in the State, and they will virtually appoint all our judges, together with all the ministe- rial officers, clerks, sheriffs, and even down to constables. The sole power of the people, a majority always acting with one or the other party, will be the mere power of ratification. They will not have the power of the Senate over the nominations of the Governor; for, by rejecting his nominations, the Senate can compel him to nominate other persons. But this the people cannot do ; for, by rejecting the candidate nominated by their own party, they infallibly elect the candidate of the opposing party, who will have received his nomination from an equally corrupt source. This of course cannot be thought of, and we shall, all of us, have to lend our aid in electing the nominee of the one or the other party, or we shall have no vote at all. Whenever the means or power can be devised for putting down all parties, and relieving the nation from the shackles of the two great parties that now hold us in thraldom, we may expect the people to effect their emancipation from this state of things, and become the appointers of their judges by means of elec- tions. Even if party conventions were not to become the appoint- ing power, the matter would be but little improved, for the candidates for judgeships, like all other candidates, would resort to stump-speaking and the usual arts of corrupt electioneering. This is the course the thing has taken in Mississippi. From the great preponderance of the Democratic party in that State, it has felt no need for grasping the judgeships as part of the party patronage ; and from the influence of the members of the bar, who are personally interested in having the bench well filled, the Whigs have been allowed a full share of the judge- ships. The several candidates are mainly left to their election- eering talents. But here, the majority not being so decisive, the dominant party can dispense with none of its power of patronage, and the example of IS'ew York is the one we are THE N E W CONSTITUTION V K E N T U C K Y. 39Y most likely to follow, — that is, all judicial and otlicr appoint- ments will flow directly from party conventions. It matters uot what promises and assurances political leaders may have given, or may give, to -the people on this suhject; tliey cannot be fuller or stronger than those given by similar men to the people of New York, Yet, notwithstanding those promises, there has been no judge elected in that State, since the adop- tion of their new Constitution, but as the nominee of a party convention. Nor can there be a spectacle more humiliating to a republic than the one there presented, of four hundred thousand freemen casting their votes between two candidates for a supreme judgeship, on the sole ground of their allegiance to the corrupt factions of that State. "We need not therefore stop to trace the probable consequences of our judges having to electioneer for their offices and for their re-election, nor specu- late upon the question whether, by becoming a judge a man will so far change his nature as not to use the powers of his office to pay his election debts, whether of favor or hate, and to promote his re-election. Continuing our inquiry to the more probable event, that our judges will all owe their appointments to party conventions, and will have to look to the same source for their re-election, must they not sooner or later become mere party tools ? Several prominent men of the Democratic party in our State do believe, or pretend to believe, that they have felt the influence of party feeling against them in the decisions of our appellate court. If they do actually believe this of a court appointed as that was, and so far removed from party influence, how can they possibly doubt that motive and feeling will operate upon judges who shall receive their appointments directly from party con- ventions, and who will have to look to such conventions for their re-election ? For a time this may not be directly required from them as a duty to party. The two parties ought to live thrivingly for many years upon the abundant patronage they have provided for themselves under the new Constitution. But those means are not inexhaustible. With increase of population and increase in the price and sphere of bribciy, exhaustion of the fund must ultimately ensue; and tlion the great law of necessity, party supremacy, will compel them to 398 THE XEW CONSTITUTION OF KENTUCKY. resort to other means. Tliey will not he slow to discover tliat tlie powers of the judiciary are a great storehouse of inexhaus- tible means, nor will they fail to use them. Before the dissolution of the Roman Republic, its judicial officers, elected by the people, had become thoroughly corrupt. They not only sold their decisions for money, but rendered them in aid of the factions who elected them. This corrup- tion, we are told, tended greatly to alienate the aftections of the people from their Government, and to facilitate its over- throw. It must be so everywhere. For what people can tolerate a Government whose civil and criminal justice is corruptly dis- pensed ? The obtaining of justice being the very purpose of men in instituting political society, whenever it ceases to flow from their Government, when the rights of life, liberty, and property are no longer secure, anarchy ensues, and, as a relief from that, despotism becomes an actual boon. It might be, as before stated, a question well worthy of much honest difference of opinion, whether the old or new plan of appointing judges were most likely to secure us good appoint- ments, provided the people were actually to have the choosing of their judges, without any sinister bias or influence. Thus far experience has proved that both modes of appointment are liable to abuse. There can be no doubt, to say the least, that the judicial appointments made by our Governors will fully bear a just comparison with the elections made by the people of either members of the Legislature or members of Congress. But this is not a proper mode of comparison. The test lies not there. The question is whether self-appointed, irresponsi- ble party conventions are likely to make better appointments than would be made by our Governors under the supervision and control of the Senate. That is the true question. Let every man then put it to himself whether, if his whole fortune were involved in a lawsuit, and he had confidence in the law and justice of his case, he would prefer it should be decided by some unknown man, to be appointed by the Governor and Senate, or by a man to be appointed by one of these party con- ventions. No man of sense and experience in the affairs of the world would hesitate in his choice. "Well, what would be THE NEW CONSTITUTION OF KENTUCKY, 309 tlie clioico of each man of good sense for himself ought to be the choice for the whole State. That which would be the best mode of appointment for each one separately must ha the best for the whole of us collectively. Conceding that the members of the Convention were under a necessity, from their pledges, or for the purpose of carrying out the supposed wishes of a majority of the people, to make all the judges elective for a term of years, still they were under no such necessity to sutler the judges to be re-eligible. What- ever maybe the objections to barely electing the judges, those objections are as nothing when compared to the evils incident to an elective system which permits them to be re-elected. Whether the judges have to depend upon their own personal popularity and powers of electioneering, or will have to look to party conventions for their election and re-election, this ob- jection applies with equal force. If there be a fault in the Federal Constitution which experience has thoroughly ex- posed, and one which a majority of the people would heartily concur in amending, it is the re-eligibility of the President. One of the great political parties has attempted to nullify this evil in practice, by regularly, for years back, making it a part of their published creed, that no man shall be elected President for two terms in succession. Most of the State Constitutions forbid the election of the same man as Governor for two terms in succession. This feature of our old Constitution the Con- vention has retained in the new, even after they had stripped the Governor of all his patronage, and consequently after there ceased to be any substantial reason for keeping up the restric- tion. They have also said that sheriiFs shall be re-eligible for only one term of two years, whilst the judges are to be re-eli- gible for any number of terms. The reason for these provisions in our own and other Con- stitutions against the re-eligibility of certain officers needs no explanation or vindication. Every one knows that they pro- ceed from a well-founded distrust of human integrit}', and from an almost universal belief that most men, when they have in their hands the public patronage or power, whicli can be used to promote their re-election, will use it for that pur- pose. Poor human nature is wholly unwortln' of a trust which 400 THE NEW CONSTITUTION OF KENTUCKY. implies that power will not be abused in that way. Each of us, upon self-examination, Avill find the number of persons few, indeed, to whom we would be willing to trust the powers of a judge, with perfect confidence that he would not use those powers to promote his re-election. Most of us will have to come to the conclusion, after a close scrutiny, that we know not a single man in whom we could place such confidence ; or, at least, those among us who know the perfect facility with which a judge can bestow judicial favors, and covertly exercise favoritism without the fear of exposure. Indeed, no perfectly honest man would be willing to trust even himself in such a situation. He would rather avoid the danger and pray the Lord to deliver him from such temptation. In fact, the liability to the imputation will, with sensitive men, constitute an objec- tion to seeking the of&ce. Men of worth, who hate all strife and contention, have been willing to serve the State, for mod- erate salaries, as judges, because it was the only public station they could attain without a blackballing of their private char- acter, and the only one in which their actions will not be per- verted with all the malignity of party hate and electioneering rivalry. There is danger that some of these men might decline to seek the ofiice under any mode of tenure, through the ordeal of a popular election. This danger must be increased when they know that the fact of their re-eligibility places their repu- tation at the mercy of malignant sneers and imputations. Bad men are callous to such things, and do not fear them. Another reason against this part of the scheme is, that it is likely to prove of little benefit to good men, whilst bad men may profit by it. The bench, when worthily filled, is a poor place to acquire personal popularity. It will seldom be ac- quired or preserved by a man who honestly and firmly dis- charges his duty. Those who are benefited by honest judicial decisions return no thanks to the judge, because, as they right- fully conceive, they receive nothing more than they are prop- erly entitled to. • But even the best of us, when we feel what we deem to be injustice toward us, cannot avoid a sort of re- sentment against the judge through whom the injuiy is in- flicted. On the other hand, the knave must be a fool who cannot so use judicial power as to promote his re-election. THE NEW CONSTITUTION OF KENTUCKY. 401 And, surely there can be nothing more abhorrent to a virtuous and intelligent mind than that bad men nhould not merely have the power, but be thus tempted, so to prostitute the civil and criminal justice of the country. This worst, most abominable feature of the whole scheme is of their own voluntary contriving, on the part of the mem- bers of the Convention. There was no known or even prob- able public sentiment urging its adoption. On the contrar}-, rotation in othce is a principle of known popularity in this country, and especially so with the Democracy. "Wliilst popu- lar favor was so sedulously propitiated in every other way, wh}' was it not attended to in this particular also ? There were at least forty la\\^^ers in the Convention ; and we have it on the authority of its most prominent leader, that not less than twenty of them would be candidates for the judgeships about to be vacated. In the estimation of these gentlemen candidates, and even of the whole legal corps, the offices might well be considered as more valuable if incumbents were allowed to be re-elected. Their influence, of course, would be a preponderating one in the Convention on any such sub- ject, especially if there was no one there to expose the fact that their interest might be one way, whilst that of all the other people in the State was different. This is one mode of answering the question. There is another. It might well occur to shrewd politicians that, under a system of ineligibility, the judge would have no motive for retaining his party ties ; that he might, for the sake of personal independence and self-respect, forget his obliga- tions to the party that made him, and thus become too inde- pendent, as it was once complained that the judges in Ken- tucky were. But make him re-eligible, and he can never forget the power that made him, because he must always keep it in view as the power upon whieh he must rely in obtaining a re-election. Having wilfully and Icnowingly cast the whole judicial power of the State into the grasp of party, the mem- bers of the Convention cannot complain of uncharitableuess in a supposition which imputes to them ordinary wisdom and forecast in so modelling the scheme of an elective judiciary as to render it a source of efficient party strength. 51 402 THE NEW CONSTITUTION OF KENTUCKY. It "was pretended to be necessary to make judges re-eligible, in order to induce competent men to seek the office. But tills, if not a mere pretext, was a most shallow reason. In view of the doubts and difficulties of being re-elected, there is no man who would not gladly surrender that chance, and content himself with a single term, for the sake of not more than $200 addition to his annual salary. At the cost of only some $3000 annually to the State that difficulty could have been easily removed. And would it not have been money well spent ? Could we not have well affi3rded to pay a much larger sum to save us from so pernicious a scheme ? ijnder the Constitution of 1792, sheriffs were eligible for a single term only. The new Constitution makes them eligible for two terms, but for two terms only. Why this arrange- ment ? Common prudence and obedience to the principle of rotation would not permit them to be made re-eligible indefi- nitely, but, if restricted to a single term, they would not have sufficient motive for being party sheriffs, and the party that elected them might get no service out of them. Eender them eligible for a second term, then they would have the motive, and the party might rely on having in them most efficient ser- vants for two years out of every four. No. in. PROMOTING POLITICAL PARTIES. Government generally acts through its legislative and exec- utive departments, on a large scale, affecting society only in the mass, and seldom reaching the single private citizen in any direct manner. Its action through the judiciary, on the contrary, seldom operates on the mass, but comes in detail on each individual separately, and affecting him in his most im- portant personal interests. The State is a stout subject, which can endure much maltreatment from empirics, and long bide the buffetings of corrupt factions without much permanent injury. Great corruption, even in the legislative and execu- tive departments, may be long safely borne, and will be quietly endured, whilst the public justice remains pure. But men cannot endure the deprivation or corruption of justice — that THE X E W C N S T I T r T I X OF K E X T C C K Y. 403 tonclies every man to the quick through his clearest personal interest. Every man has to look to the judiciary for the re- dress of his private wrongs, the maintenance of liis private personal rights, and for the security of his property. Hence, the proper structure of that department is of such dccj) per- sonal concern to every man. The perfect protection to life, liberty, and property aft'orded by the stable independent judiciary of England keeps the people of that country content with, and even proud of their Government, whilst lal)()ring under a load of taxation such as no other people overbore, and whilst in political matters en- joying only a very limited approach to civil liberty. It was by permitting the stream of public justice to run pure in civil matters, that those usurpers, Cromwell and Bonaparte, kept the mass of their respective nations content with their mili- tary despotisms. The English boast that they have nearly realized the beautiful idea of Burke, that the justice of a State should be a thing apart and out of the reach of its power — that the supreme power, as represented through the House of Commons, never controls or even attempts to interfere with the independent action of the judiciary, but sufiers the judges to move undisturbed in a distinct, separate orbit of their own — that the party strifes and the popular heat and violence, which necessarily influence the action of the House of Com- mons, never influence, because they have no direct power over the judiciary. Our Federal and State Governments have been constructed with a view to a still nearer approach to that ideal. The per- manent tenure of office has given our judges the same inde- pendence, and the guarantees of our written Constitutions have placed them still further from the immediate reach of the majority or governing power. We have flattered ourselves, that, whilst enjoying a so much larger political liberty, we were deriving equal benefit from a pure administration of jus- tice. We believed that we were successfully proving, by our exam})lc, that the two could be safel}' combined in a represen- tative republic ; that constitutional written guards were real substantial restraints on the powers of Government ; and thus also proving the pre-eminent excellence of our Government 404 THE NEW CONSTITUTION OF KENTUCKY. over tliat of England, with its unwritten Constitution and om- nipotent Parliament. They depend for the preservation of their liberty on the checks and balances naturally existing be- tween a House of Commons on the one side, and an hereditary throne and peerage on the other. We have attempted, by our written Constitutions, to give much better security to liberty by denying omnipotence to Government, and by expressly excepting from its powers all that was deemed essential to liberty. It was our fond belief and proud boast that, by these constitutional restraints, we had secured the enjoyment of per- fect liberty ; that, with the right of universal suflrage, oppres- sion or wrong to the majority was physically impossible, whilst, with the aid of an independent judiciary, and the trial by jury, these constitutional guards would afford ample protection to individual citizens and minorities against the unjust aggres- sions of the majority. We can no longer make this proud boast. Our modern wise men, unmindful of this theory, and heedless of the necessity for keeping the justice of the State apart from its supreme power, have brought them into direct contact, and placed the judiciary as much under the immediate influence of the ma- jority as the Legislature and Executive. They have done worse. For, according to the practical working of all popular elections, they have brought the judiciary under the direct control of party. If any man doubts this, let him look at the Senate of the United States — a body composed of men not merely of ma- ture years, but in the decline of life ; men of talent, who, from their success in attaining such station, must be of more than ordinary firmness and energy of character ; men who occupy the dignified attitude of representatives of sovereign States ; men who hold their offices with adequate salaries during the long term of six years ; and men, too, who do not derive their offices from an immediate election by the people. Look at this body, so carefully constituted to ensure their indepen- dence, and say whether they are not all imbued with party spirit, yes, perfectly under the dominion of party. Mr. Cal- houn has appropriately characterized it as a Magdalen asylum, a mere receptacle of party prostitutes. None of the function- THE NEW CONSTITUTION OF K E N T T C K Y. 40o aries of Government, State or Federal, are more tlioroiiglily partisan ; none more blindly submissive to the mandates of party. We can expect nothing better from our judges, when elected for a term of years directly by the people, as the nominees of party conventions, and looking to them as the only means of obtaining a re-election. They must remain party men, and act on the bench as the mere representatives of party, in the same manner as all our Senators and Representatives. It would be idle to expect anything else. It would be hoping against all knowledge and experience to anticipate any other result. We have already had many examples to prove that even juries sutler party feeling to influence their verdicts. By- standers have been able to predict a hung jury, and even de- signate the vote of every juror, by the simple test of party politics. This is most abominable. But what corrective is it likely to have from a sympathizing party judge ? Bad will be the chance for impartial justice before such a judge to a poor man, who has only his own vote to give at an election, when contending with the wealthy head of a large and influential family connexion. Still less will be his chance, when contend- ing with some popular lawyer, who has the reputation of in- fl.uencing all the party operations of his county. Suppose that a dominant party, as they are most apt to do, have overstepped the barrier of the Constitution, and that the minority party is violently assailing them, in hope of pulling them down for this act of usurpation, will a party judiciary, ap- pointed by the dominant party, and looking to that party alone for reappointment, be apt to prove impartial arbiters of the controversy ? There is nothing we can foreknow more certainly than that such a judiciary will not lend its aid to the con- viction and prostration of its own party. Yet, the honest, im- partial discharge of that duty is what the theory of our Gov- ernment anticipates and indispensably requires. Without that, the Government ceases to be one of limited powers. We shall all have to live as we may under a Government, which, in its actual operation, will be nothing but the unrestrained will of a party majority. The people of England, with their 406 THE NEW CONSTITUTION OF KENTUCKY. hereditary tlirone and peerage, will enjoy more than we of the substantial benefits of liberty. The enjoyment of liberty and property will be more secure there than here. ^Yith a party Legislature, a party Governor, a party judi- ciary, and party sheriffs, ours must become a purely party Gov- ernment. Throughout all of its ramifications it must become thoroughly imbued with the spirit of party — that spirit which has the lust for power as its chief, if not the only incentive ; obedience to party as the chief, if not the only virtue ; and disobedience or desertion as the chief, if not the only crime in its moral code. Where then will be the great balance-wheel of Government — where th&t justice of the State, which, according to all sound theory, should serve as a counterpoise to its power ? All gone — gone into the great vortex of part^dsm. We shall have a limi- ted Government in form, but a despotism in reality. "We shall have the Government of an unrestrained majority, and the very worst form of that Government — a majority acting as a political party. The Constitution will still have limitations on power, the bill of rights will still proclaim the sanctity of life, liberty, and property, but where will be the men to enforce those limitations and guard those rights ? They were intended to secure private citizens and minorities against the unjust ag- gressions of majorities. But to make them anything more than mere dead letter precepts, there must be men to give them vitality — official power to resist those aggressions. Those men we shall not have. That power will be gone. Tlu justice of the State will have no representatives. All our officers, from the highest to the lowest, judges and all, will be the mere representatives of party. l^or is this any new lesson in the science of government which we have now for the first time to learn. Mr. Madison and other distinguished men of the Revolution, warned us long ago that limitations on legislative power, such as prohi- bitions against bills of attainder, ex post facto laws, laws infring- ing the right of conscience, right of trial by jury, freedom of the press, etc., " can be preserved in practice no other way than through the medium of an independent judiciary. Without THE NEW CONSTITUTION OF KENTUCKY. 407 this, all the reservations of rights or privileges would amount to nothing." What security, for instance, will there be for religion ? There is no subject about which majorities are more prone to oj)pres3 and persecute minorities than that of religion — none about which juries are so apt to catch and be influenced by the popu- lar feeling — none in Avliich their verdicts will more need the careful and resolute supervision of an independent judiciary. Can we rely upon a re-eligible elective judiciary to firmly dis- charge that important duty ? Let the facts of a recent occur- rence in a neighboring State, as detailed from his own knowl- edge, by a distinguished member of the late Convention, answer that question. Some sinister motive caused a Catholic priest, of amiable and irreproachable character, to be indicted for a rape. Prejudice against his religion had caused the community to prejudge him upon the faith of false and malignant rumor. Wlien the trial came on, it appeared that the priest was a feeble, small man, and the prosecutrix a stout, strong, German woman. The disparity of their strength was so obvious that it at once gave the lie to the whole story. Every unprejudiced mind was convinced that she was much more able to commit violence upon him than he upon her; yet the jury found him guilt}-. The verdict was received with shouts of applause by the crowd in and around the court-house ; and it was with difficulty that they could be restrained froin tearing him to pieces. An ap- plication was made for a new trial, on the ground that the tes- timony was clearly false, and obviously such as did not warrant a conviction. The judge confessed that he did not believe the man to be guilty, and said if he had been on the jury he would not have agreed to the vei'dict. But he chose to pretend that it was the exclusive province of the jury to determine the ques- tion ; and, as they had found him guilty, he would not grant a new trial. The man was accordingly condemned, and, though afterward pardoned by the Governor, will have to bear through life the opprobrium of a pardoned felon. Now this judge knew full well that there was no part of his duty of a more sacred character than that of shielding an innocent man from a ver- dict obtained through popular prejudice. lie knew full well 408 THE NEW CONSTITUTION OF KENTUCKY. it was liis duty to grant a new trial ; but tte censorious said he was afraid to grant it, either because his re-election was about to come on before the Legislature, or because he was about to become a candidate for Congress. In close connection with this subject, public attention may be here called to an act of the late Convention, as illustrative of the heedlessness or recklessness with which they have done their work. There is no subject about which Americans have heretofore been more unanimously agreed than the sanctity of the right of trial by jury in criminal prosecutions. 'Ho con- vention ever before set in this Union that did not carefully exclude that subject from legislative discretion. All our Con- stitutions declare in substance that the right shall be held sacred and forever remain inviolate. If any of them authorize a modification, they define how far it shall extend. Of all the parts of the ancient mode of trial by jury, there is none of more importance to the accused, none more necessary to im- partial justice, and therefore none which should be held more sacred, than his right of challenge. K there was anything in the old Constitution deemed so peculiarly sacred as that the hand of innovation dare not touch it, this very right of chal- lenge would have been one of the things pointed out as of that sort of sanctity. Yet the late Convention has dared to touch it, and that too with a bold and heavy hand. Art. 2, Sect. 39. — "The General Assembly may pass laws au- thorizing appeals or writs of error in criminal or penal cases, and regidating the right of challenge of jurors therein." Art. 13, jSecf. 7. — " That the ancient mode of trial by jury shall be held sacred, and the right thereof remain inviolate, subject to such 7nodifieations as may he authorized by this Constitution." The first of these two sections, being the only one in the Constitution that authorizes any modification, must be what is indicated or referred to in the latter clause of the other section. The two sections construed together would leave no room for doubt, even if the published debates did not prove the fact, incredible as it may appear, that the Convention actually did intend to give the Legislature full power to regulate or modify^ — that is, to alter the right of challenge at its mere will and plea- sure. A proposition so to restrict the power as that not more THE NEW CONSTITUTION OF KENTUCKY. 409 tliau one-fiftli as many peremptory challenges slionkl be given to tlie Commonwealth as might be allowed to the prisoner, was voted down by a large majority. This plenary discretion over the whole subject carries with it the power to take from the accused all challenge but for cause, and even to define and limit the challenge for cause. It also carries with it the power to give the Commonwealth any number of peremptory chal- lenges ; whilst all, or nearly all, ma}' be taken from the accused. All this discretion given, too, to a Legislature that the Con- vention would not trust with an unrestricted power to make a]3propriations of public money beyond the amount of one hundred dollars. It is not intended to impute anything so monstrous to a sin- gle member of the Convention, as to suppose he meant this discretionary power should be thus abused. But the absence of such intention in no degree palliates the mischief of the act. The evils that may ensue will be none the less grievous because the Convention did not foresee and know that they would occur. It w^as their business to have foreseen such things, and to have been very careful in guarding against their occurrence. That is a discretion which no other State has ever trusted to the Legislature. The people of Kentucky would be as little apt as those of any State knowingly to place such an amount of unnecessary confidence in any one. Our written Constitutions, with limitations of power, are all framed on the idea that men are naturally prone to abuse power ; that all po- litical parties are prone to hate and oppress each other ; in fine, that men can never be safely trusted with unrestrained power over their fellow men. Hence all the elaborately de- vised schemes of checks and balances, the eftbrt to obtain an independent judiciary, and last, not least, to secure the right of trial by an impartial jury. Hence also Government officers were not trusted with the exclusive selection of the impartial jury. To guard against the abuse of that power, the accused is allowed any number of challenges for cause and twenty to the favor, or without cause, — so cautious have wise men been against the abuse of power, and the oppressive action of ma- jorities. The jury, the impartial jury, was to be to the citizen 52 410 THE NEW CONSTITUTION OF KENTUCKY. a last refuge against the oppression of liis government. There was to be his certain reliance for sympathy and protection. These modern innovators, not content with giving us a party Legislature, a i^arty Executive, a party judiciary, and party sheriffs, have actually placed it in the power of a dominant party to deprive the citizen of even this his last refuge. De- prive him of his right of challenge, and you take from him even the pretence of a fair and impartial trial by jury. Elvers of blood flowed during the French Revolution, under party persecution, and from the instrumentality of sworn juries. Our citizens may become equally defenceless against similar perse- cution. Their appeal for protection against the oppression of a party Legislature will be to a party jury, packed by a party sheriff, and presided over by a party judge ; and, if they seek the clemency of the State, they will find the pardoning power in the hands of the very incarnation of all partyism, a party Governor. Yerily, verily, this is rare evidence of the march of human intellect, and of modern improvement in the science of gov- ernment. If our modest fathers could arise from the dead, how they would stand abashed at such a specimen of "all the wisdom of Kentucky." How they would admire the rapid improvement of their posterity, when seriously told that, such is the thraldom of party around us, there does not exist in modern Kentucky the power to prevent the adoption of such a Constitution ; that, from the immense amount of rewards it offers for support, it will infallibly bribe its own way into adoption. Men who, from self-suificiency, arrogantly presume the perfec- tion of their work, and take so much pains to perpetuate it, by making it hereafter of such difficult access to the people, ought to have been well convinced that they were perfectly incapable of committing so gross a blunder. Our courts had given different decisions as to the Common- wealth's right of challenge for cause, and, as the Legislature had no right to settle the question, it was very proper to de- fine the right in the Constitution, or even to have confided to the Legislature the power of defining it. And, in avoidance of frauds upon criminal trials, it would have been very well THE NEW CONSTITUTION OF KENTUCKY. 411 to have given the Commonwealth as many as four or five per- emptory challenges. But never before did it enter the heads of sane men in this country to give the Legislature power to take from the accused his whole right of challenge, No. IV. THE EXECUTIVE. Xo part of the Government will suffer more than the execu- tive from the inconsiderate and ill-advised action of the Con- vention. Its great importance as a necessary part of every good government requires that the people should bestow a most heedful attention to the injury the Constitution will sus- tain in this department. The theory of the Government requires its powers not merely to be divided out between three distinct independent bodies of magistracy, but that they shall have such an amount of power as will enable each to act as a sort of check or counter- poise against the others. This theory is totally overlooked in the new Constitution. The Governor is stripped so bare of power that it would be no material change to abolish the office altogether. The Secre- tary of State is the only officer he is allowed to appoint. He has power to control or command not a single officer except in the militia, and to do even that in person, he inust wait the advice of the Legislature. He is nominally required "to see the laws executed." But how is he to do this when he will have no agency in the appoint- ment or power over those officers who will have the execution of the laws ? His veto power is a very small matter, and, practically, has been thus far of but little utility. That, together with his pardoning power and his power to fill vacancies, had just as well have been confided to a Speaker of the Senate, and the unnecessary duty of signing commissions would have been as well performed by the Secretary of State. The office, being stripped of all dignity, influence, and importance, must soon dwindle into contempt. It was a maxim among the founders of our Government that 412 THE NEW CONSTITUTION OF KENTUCKY. " a feeble Executive implies a feeble execution of the 'Govern- ment; a feeble execution is but another phrase for a bad exe- cution; and a Government ill executed, whatever may be its theory, must be in practice a bad Government." Pursuant to this idea, so universally received among all wise speculators on the science of government, the old Constitution gave the Governor large and extensive power through his pat- ronage. It gave him the appointment of nearly all the officers whose offices were created by the Constitution, or might be created by law, with the exception of those whose jurisdiction was confined to a county. Ha^nng to see that the laws were executed, he was properly entrusted with the selection of the agents to assist in their execution. The dignity and import- ance of the office invited to it men of the first distinction for talents and character. The people had in their Governor an intelligent and faithful supervisor of all the aifairs of the State. His superior opportunity for information, the greater amount of attention which he bestowed upon the business of the State, together with his patronage and individual weight of character, gave great influence to his advice with the Legislature. A legislative body can never do more than carve out work and give general orders. The details of their execution, and the supervision of the manner of execution, must unavoidably be left to the Executive department. So important is this super- vision, that it may well be said to be full as necessary as good laws. What is everybody's business, among one hundred and thirty eight men, always turns out in practice to be no- body's business, and the general interests of the State receive no careful supervision, except what it gets from our Governors. A majority of the members of the Legislature obtain their seats principally for the sake of a few months' frolic, or to place themselves in the line of political promotion. They have but little information concerning, and pay but scant attention to the affiiirs of the State. The Governor ponders them the whole year round, and cai;efully considers them, like the trusty and intelligent overseer of a large farm. The impotency and insignificance to which the office is reduced will prevent its being sought by proper men. "We shall lose the benefit of that needful supervision over the general affairs of the State and THE NEW CONSTITUTION OF KENTUCKY. 413 that salutary sort of influence on tlie Legislature. Eacli exe- cutive office will become a sort of separate independent depart- ment. All the officers of that class will be like laborers on a laro-e farm with no overseer, each workinir accordinir to his OAvn will, and looking for censure or praise to the distant owner, who visits the farm only once in four years. The Federal and State Constitutions carefully and particu- larly provide for the manner of filling all offices. Our old Con- stitution does the same, and by a sweeping clause gave to the Governor the appointment of all officers whose appointment was not othermse provided for. This clause is repealed by the new Constitution, and in lieu of it we have the following bungling-worded section : Art. 3, Sect. 25. — "A treasurer shall be elected biennially by the qualified voters of the State, and an auditor of public accounts, register of the land office, attorney-general, and such other State officers as may be necessary, for the term of four years, whose duties and responsibilities shall be prescribed by law." The most liberal construction of this section is required to prevent its being convicted of positive nonsense. To prevent the power of the Legislature to make new offices, from being confined to a period of four years next after the adoption of the Constitution, we are compelled to give the construction which will require every State office, not enumerated, to have a term of four years. This, too, though the duty to be per- formed may not require the continuance of the office for more than three months. The Legislature can create no office for a shorter term than four 3'ears. It is quite clear that every "officer for the State at large," whose office is created by the Legislature, must be elected by the voters of the whole State. Though his salary is only one hundred dollars, and his duties proportionally insignificant, the keeper of the State-house for instance, yet he can be appointed in no other way than by the voters of the whole State. "WHiat- ever necessity there may be for his immediate services, they cannot be had until a general election, unless a special election be ordered at an expense of six or eight thousand dollars. 414 TnE NEW CONSTITUTION OF KENTUCKY. Neither can any of these officers be suspended or turned out of office but by the slow and solemn process of impeachment. There is not room even for a doubt that such is the proper construction of this section. It not merely stands in lieu of the repealed section of the old Constitution, which gave all such appointments to the Governor, but is the only clause bearing on the subject, except, indeed, the tenth section of the sixth article, which says : " The General Assembly may provide for the election or appointment of such other county or district ministerial and executive officers as shall, from time to time, be necessary and proper." Thus showing a conscious- ness, on the part of the Convention, for enabling the Legisla- ture to create and direct the mode of appointment of county and district officers, other than those enumerated in the Constitution. Thus, also, showing from the omission here that they believed they had previously made all needful pro- visions, of a similar character, as to officers for the State at large. "When the Constitution has gone into such minute detail as to the appointment of nearly all existing officers, it would be wholly inadmissible to suppose any omission of so large a subject as the mode of appointment to offices hereafter created, or by omitting to recognize the legislative power, to leave it more than in doubt whether any such offices could hereafter be created. This part of the job is the mere voluntary invention of the members of the Convention. They were under positive in- structions for nothing of the sort. Public sentiment required nothing to be abstracted from the patronage of the Governor but the appointment of the judges. The balance of his patron- age would have still left the office highly respectable and influential. That it would have been better exercised by him, that he and the Senate would have made better selections of officers than are at all likely to be made by a general election of the whole State, no man of sense will pretend to deny. If the Governor and Senate are not fit to select the minor execu- tive officers, then all representative government is a mere cheat, and nothing pertaining to government can be trusted out of the hands of 'the people. But the cheat lies not there. It lies in the attempt to make the people believe that, in making such THE NEW CONSTITUTION OF KENTUCKY. 41o offices elective, thej, the pcoi)le, ^^^\\\ really have tlie appoiut- ment of the officers. It is next thing to a physical inipossihility that the cue hundred and fifty thousand voters of Kentucky should understandingly and considerately really make for them- selves selections for even the highest of such offices, such as the auditor and treasurer. The offices are comparatively too unimportant, and the men best qualified to fill them of too little general note for even the tenth of the voters to take suf- ficient interest in the subject to obtain the information neces- sary to a judicious choice. But when you descend to some petty office, with a salary of only one or two hundred dollars, not one voter in a thousand, if left to himself, would have a wish on the subject or condescend to vote at all. To present such a question for the decision of all the freemen of Ken- tuck}- — all the men from Sandy to the Mississippi — from the Ohio to the Tennessee — solemnly to convene our one hundred and fifty thousand voters to determine such a ques- tion, is the excess of the grossest absurdity. It is reaching, at a single plunge, the lowest depth of folly. Experimental empiricism has no lower deep. It is at once attaining the ut- most verge of ultra-progressive Locofocoism. The Empire Club of Captain Rynders could not have devised an}i:hing better suited to their peculiar tastes, connected as it is Avitli the election of constables, jailors, and assessors. The apostles of that sckool must seek other lands for the dissemination of their principles. "The combined wisdom of all Kentucky" has usurped their vocation, and has taken the lead in this sort of exemplification of the march of mind and modern improve- ment in the science of government. But we shall be told that this structure of an emasculated Executive department was necessary to the fixed principle that all the patronage of the Government should be bestowed through the ballot-box. The answer is, then you have proved your fixed principle to be a pure unmixed folly. It has led you to such a burlesque, so broad a caricature upon everything like government as is calculated for nothing so well as to bring the whole system of elections into contempt and disrepute. "Wliat care they for all this ? The system may not suit any purpose of good government, yet it suits very well the plan 416 THE NEW CONSTITUTION OF KENTUCKY. of governing a countiy by political parties. Prove ever so certainly that the people cannot themselves make these ap- pointments, you only demonstrate the certainty of the thing aimed at, that party conventions shall always from necessity have the making of all such officers, and there will always be an official corps who can be readily taxed to pay the election expenses of central party committees. In near connection with this subject is the destruction of our old militia system. If experience can prove anything, it has in our two last wars proved that the only efficient militaiy service to be obtained from militia is by the plan of volunteers. To obtain these you must take a company from the bounds of several militia companies, a regiment from the bounds of seve- ral regiments, a brigade or a division from the whole State. This can no longer be done. The new Constitution says that captains, colonels, brigadiers, and major-generals " shall be elected by the persons subject to military duty, within the bounds of their respective companies, battalions, regiments, brigades, and divisions." No other mode of appointment or election is directed or allowed. Should a distinction be attempted between militia and volun- teers, to relieve us from this difficulty it will be only to throw us into another full as bad. Such volunteer officers, if not dis- trict officers to be elected in militia districts, must undoubt- edly be "officers for the State at large." These, as before shown, can, according to the twenty-fifth section of the third article, be appointed in no other way than by a general elec- tion of the people of the whole State ; that is, before a single volunteer company can be received into service and its officers commissioned, they must wait for a general State election, for the captains and lieutenants to be elected by the people of the whole State. Can anything be more preposterous, or ridicu- lously absurd ? Yet such is the miserable abortion which, as a system of government, is about to be fastened upon us in perpetuity, and from which the people cannot relieve them- selves but by a continuous effiDrt of seven long years. The ink with which the short-sighted " wisdom of all Ken- tucky" wrote this new Constitution was scarcely dry, before the extreme folly of the structure of its Executive department THE NEW CONSTITUTION OF KENTUCKY. 417 was most strikingly illustrated. Wo learned that the soberest and most discreet wise men of the nation at AVashingtou were seriously alarmed for the Union ; that the South was deliber- ately calculating the value of the Union, and scheming for a severance, which would make Kentucky a frontier State, and give her a hostile border of a thousand miles to defend. A\niat a lamentable situation, with such a Constitution, would hers be in such an event ? She would have to wait seven years to re- peal the Constitution, before she could legally organize an efficient military force. The framers of the old Constitution acted upon no such short-sighted views or plans. Many an ignoramus has read, with a supercilious smile, that part of the old Constitutiou which made the Governor the commander-in-chief of the "army and navy of Kentucky." A^Hiat, an army and navy of Kentucky when she is a member of the Federal Union ? Those men of the old time knew well enough that could not be, that she could have no army or nav}- of licr own while she remained in the Union, but they did not know the Union would last for- ever. Thej^ did not choose unnecessarily to act upon the pre- sumption that it would last forever. They preferred providing for the contingency of its being broken up. They, therefore, gave us a stable, efficient scheme of government, suitable for all times and occasions, and which would need no alteration, feven if Kentucky were to become a separate independent State. The only oath of office they required was to be " true and faithful to the Commonwealth of Kentucky," leaving it to the Federal Constitution to superadd, by its own authority, the oath in support of that instrument. But the late Convention, in their zeal to amend everything they thought susceptible of amendment, have added to the old oath a clause to sup})ort the Constitution of the United States, an amendment wholly un- necessary as long as it remains in force here, and can only have practical effect after Kentucky^, by some unfortunate casualty, shall be driven from the Union. In that event we should be compelled to have a convention merely to repeal this oath, if needed for no other purpose whatever. As a device for creating uponKentuckians bonds of additional fealty toward the Union, it was wholly unnecessary. They are bound to it by the ever 53 418 LETTERS ON THE PRESIDENCY. reliable bond of interest, but also by the still stronger tie of a heart-warm and heart-seated affection. They will stand by the Union, and fight for it, as long as the Union stands by old Kentuch. There was a time, too, when Kentuckians would have cast themselves free from the thraldom of all party trammels, and prevented the politicians from bribing the people into the adoption of such a miserable Constitution as has been offered for their acceptance. CHAPTER XX. LETTERS ON THE PRESIDENCY. FiKST Published in 1840, and Republished, with Appendix, in 1859. IN"©. I. To Mr. Webster: — The reading of your recent speech at Rich- mond has induced one of the humble nameless million of your fellow-citizens who admire your talents, and appreciate your capacity for usefulness, to addrees you, and point to an achieve- ment worthy of those talents and of the utmost importance to our country. "With much pleasure he found you indignantly repelling the charge lately made by a clique of soi disant Democrats against some of our Revolutionary fathers, that they had fought for independence but not for liberty, "With equal pleasure he read your high encomium on our political institutions, and united in your prayer for their perpetuity. So recently after your nearer personal observation of England and her institutions, it is truly cheering to hear you say that ours are not only above comparison, but that the exuberance of the imagination even cannot fancy anything better. Continue, sir, so to speak and so to feel, and you need never hereafter doubt your reception south and west of the Potomac. LETTERS ON THE PRESIDENCY. 419 "We, of tlie Soutli and West, view those institutions as the embodimeut of most of our national pride, most of our national glory, and all of our national hope. They are the proud, pre- eminent characteristics by which we are and wish to be distin- guished from other nations. lie who offers pure heart-wor- ship at that sacred fane is truly our countryman, let him have been born in what part of the Union he may. lie who best commends and best defends it we deem best deserving our esteem. Delightful as it is to have our institutions so prized, the enjoyment of an unalloyed pleasure was denied us by your solemn declaration that, if we are to have a recurrence of the scenes recently passing in the contest for the Presidency, these so vaunted and so prized institutions cannot last for half a century. It is matter of exciting interest to the nation, when such a man, upon the high responsibility of such a eliaracter and repu- tation, warns us that there is any existing peril which may limit the duration of our institutions to less than fifty years. You solemnly ask the old-fashioned Republicans of Virginia, "whether it can be supposed that this free republican Gov- ernment of ours can last for half a century if its administration cannot be changed without such an excitement, such a civil revolution, as is now in progress?" Now, I beg leave to ask you whether, when there is a "powerful party in the country, and a man gets into the Presidency as the head of that party," he can ever be turned out but by just such another excitement, such another revolution ? And, then, I put it to you in candor to say whether there will not always be such a party in the country, and with such a President for its head ? Answering these questions, as you must, in the affirmative, I again put it to you, whether it becomes you to lull your countrymen into false security, under the influence of the hopes of a "sanguine temperament," if such hopes you really have, instead of rousing them to a proper sense of their peril, in obedience to the dic- tates of your sober judgment. If the evils growing out of the contest for the Presidency are to be perpetually recurring and increasing evils, accompa- nied, too, with such peril to our institutions, then there must 420 LETTERS ON THE PRESIDENCY. be some inliereut defect in tlie plan of making our Presidents. If so, to hope an escape from tlie peril, is to hope against or in despite of despair. Instead of indulging the slight solace of such idle hope, Avould it not better become you, and all of us, to endeavor to trace the evil to its root and freely apply the knife ? Is not such, emphatically, the great duty, the great obligation on this generation toward preserving from destruc- tion our free and happy republican institutions ? It is the purpose of this address to aid in pointing out the root of the evil alluded to, suggest a remedy, and then insist upon the aid of your powerful talents and distinguished repu- tation toward influencing the nation to allow its application. It is not, however, alone because of the authority of your name on all constitutional questions, that your aid will be so ear- nestly entreated, but as the leader of all that class of men scattered throughout the nation, holding those political tenets commonly known as Federal, and because of your supposed peculiar influence over all such. So difiicult is it to procure an amendment of the Constitution, that in the opinion of some, no material amendment will ever be made. Any amendment of vital importance, such as that about to be suggested, will necessarily require the aid of a large majority of all the intelli- gent men of all political persuasions. The general tenor of your Richmond speech has induced the belief that you would lend your aid toward convincing those of your own sect of the propriety of such an amendment. As it looks to a most essen- tial curtailment of the power of the most important oflicer of the Government, no difficulty is anticipated in convincing those 'of the opposite tenets. The Democracy has always been ready, theoretically at least, to curtail political power — ever willing to add another "rail and another rider to the fence." In that speech you say, that in your judgment, it has come to be true, " in the actual working of our Government, that the Executive has increased its influence and patronage to such a degree, that it may counteract the will of a majority of the people. I believe that the power and patronage of the Execu- tive not only has increased, is increasing, but ought to be diminished." Again you say, "Perhaps it remains to be seen, whether the friends of the Constitution had not better have LETTERS ON THE PRESIDENCY. 421 given less power to tlie Executive and taken all the inconveni- ence arising fi-om the want of it, rather than hazard the grant- ing of so much as might prove dangerous not only to theother departments, bat to tlie safety and freedom of the country at large." All this might well be treated by those of us who have received our political teaching from the Democratic fathers of the Republic as a distinct and most flattering acknowledi^nnent of their superior sagacity upon this subject. But to be candid, I do not know that we can, in fairness, treat it as such an ad- mission. For, to tell the whole truth, neither the old Demo- crats or Federalists ever supposed that the President could acquire such tremendous power as he now possesses. Its prac- tical developments are so infinitely beyond their theoretical portrayal in the Constitution, that it is but justice to its framers to suppose them all to have totally misconceived and misrepre- sented the practical operation of this department of the Gov- ernment. Even General Hamilton, were he now living to witness the display of those powers, would confess that they greatly transcended his ideas of a strong Government, and would concur with you in saying they ought to be diminished. You say that, "in the formation of the Constitution, the greatest difiiculty its framers encountered was with regard to the Executive power. The great and perplexing question was, how to limit and regulate the Executive power in such a man- ner, that while it defended the country-, it should not be able to endanger civil liberty." This was, no doubt, a perpk^xing question; but with due deference, the history of the Conven- tion proves that it was by no means the most so. By far the greatest, as also the most difficult and perplexing question, was ho,w to provide an Executive head for the Government. There was no other subject upon which the opinions of tlie Convention appear to have undergone such repeated and radi- cal changes. It was first resolved, by a vote of eight States against two, that the election of a President should be given to Congress, having previously negatived, by the same vote, a proposition to have him chosen by electors elected by the people, and by a vote of nine to one to have him chosen directly by the people. Upon reconsideration it was resolved, 422 LETTERS ON THE PRESIDENCY. eight to three, that he should he chosen hy electors appointed hy the State Legislatures. By a suhsequent vote of seven to four, it was again resolved the election should be given to Congress. The plan adopted was ultimately carried by a vote of nine to two, but without any one member appearing to have, even then, any fixed or settled confidence in the plan. They merely agreed to propose it as an experiment, being the best scheme they could devise. So, also, upon a candid review of our institutions, and the history of their operation, it will be found that here the great error was committed, and not in the amount of power con- ferred on the President. It is by no means a necessary con- cession, it yet remains to be proved, that he has too much power given him by the Constitution, provided he were prop- erly appointed. The excess lies not there, but in adventitious and unanticipated power that has grown out of, and resulted from, the mode of his appointment. Since the first formation of national parties, Mr. J. Q. Adams is the only President we have had, who was not elected as the head of a party. During his time, there was no just cause of complaint of the excess of Executive power. During his whole term he did almost nothing, and could do nothing, because of the want of power.* It might with much propriety be said, therefore, that the his- tory of the Government thus far afibrds no evidence whatever, to prove that the President has too much power granted to him, provided he is not elected as the head of a party. Indeed, it yet remains to be proved that even the obnoxious, and per- haps interpolated power of removal from ofiice, would be im- proper and injurious in any other than the hands of a party President. I beg you beware, sir, how you hastily and unadvise{^y lend your powerful aid to the curtailing of any of the essential powers of that department. You need not be told that a power once taken from it is gone forever ; that, however strongly ex- perience may prove its necessity, it will never be regranted. Though not of those who ascribe perfect wisdom to the framers * Witness also the Presidency of Mr. Tyler, occurring after these letters were published. LETTERS ON THE PRESIDENCY. 423 of our Constitution, or perfect infullibility to anj-thing merely human, yet I participate in that profound reverence, common to most of our countrymen, for their far-reachinir sasacitv, ami that strong repugnance to touching any of their sacred work with the hand of innovation, except upon the clearest and most undouhting conviction, after full experiment, that they com- mitted an error. When the increased size of the country, and constantly increasing population, are demanding a (lovernment of proportionably increasing energ}-, would it not he madness to emasculate that department, upon the energy of which the efficiency of the whole so essentially depends? The champion of the Constitution, before he lays aside his conservative armor to lead the hurrah against the powers of the President, Avould do well to bethink him, whether it were not better to give his aid in directing the reform movement toward the mode of his appointment, rather than against the powers intentionally conferred upon him by the framcrs of the Constitution. If it be power you wish to restrain, then look well to the mode of his appointment, for it confers upon him powers far greater than all those granted by the Constitution combined, and produces evils far more deleterious and danger- ous than those that can be traced to the mere exercise of any or all his powers. By only pruning the constitutional grant of powers, you leave the greatest of all his powers untouched. By leaving the mode of his appointment unaltered, your rem- edies will prove inefficacious palliatives, because you never reach the seat of the disease. In a Government so essentially one of public opinion as ours, the fact of his being elected by a direct vote of the whole nation gives him practically more power than all the express grants combined. In other words, his whole powers as President are not equal to his powers as head "of the great political party that put him in office. Li- deed, the most unanswerable objection to that mode of select- ing him is, that when so elected he will necessarily have too much power. But even all this excess of power is not a tithe of the evil growing out of the mode of his election, entirely extraneous from any mere exercise of his powers. It is true, that, to be elected, he has to become the head of a party ; he lias to be a 424 LETTERS ON THE PRESIDENCY". party President ; his administration a party administration ; and though every such is necessarily a corrupt administration, yet, what is the corruption of Government and its few officials, in comparison to the corruption of the great body of society ? The contests growing out of the elections of our Presidents, direct and collateral, have done more to lower the standard of public morals, and diffuse a general corruption throughout society, than all other causes combined. Nothing is truer, or a more striking evidence of the general diftusion of this cor- ruption, than what you stated at Richmond, that it had become a received dogma, "that everything is fair in politics." The American, like the English voter, not only shamelessly avows the sale of his vote; men well received in society not only shamelessly avow the purchase of votes, but there is the best evidence for believing that the judges and other officials at elections are fast falling into the practice of conducting them fraudulently. 'No man knows better than you, that institutions so essentially Democratic as ours are can have no permanent durability, when they rest upon a foundation of such corrup- tion and corruptibility as that. Every intelligent observer of the times sees, or fancies that he foresees, the no distant day, when all our elections will be settled by the purse. How much longer it will be before they are settled by a not more corrupt, but a sterner arbitrament, rests in the ken of Providence alone. K such be the deadly accompaniment of the system of elect- ing our Presidents, the question presents itself, why continue the system ? That is the question, sir, I put to you, and wish that you, in your energetic and able manner, would put to this whole nation, Why continue the system ? It will be my purpose, in succeeding numbers, to prove that we ought to abolish the election of our Presidents. To do this, I shall begin with developing the motives and inducements to the present plan ; the mode in which its framers contemplated it should work in practice ; point out wherein and why their anticipations have been so sadly disap- pointed ; insist upon the evils of the present plan ; and con- clude with proposing a substitute. I subscribe myself, very respectfully (not of the new, but of the old school), a true Kentucky Democrat. LETTERS ON THE PRESIDENCY. 425 ^O. 11. It will be recollected that the plan, as agreed upon hy the Convention, required the electors to vote for two persons as President, declaring that the person having the highest num- ber of votes should be President, provided that number was a majority of the whole number of electors ; if more than one had such majority and au equal number of votes, then the House of Representatives, voting by States, to choose one of them ; or, if no one had a majority, then, from the five highest on the list, to choose the President. A summaiy of the inducements which led to the adoption of this plan, and of the anticipations based upon it, as de- veloped by the discussions in and out of the Convention, may be found in the sixty-eighth number of the Federalist, as given by General Hamilton. First. "It was desirable," says he, "that the sense of the people should opemte in the choice of the person to whom so important a trust was to be confided." The importance of this motive is sufficiently obvious. But the absolute necessity of yielding it a paramount influence, to the exclusion of many others equally important, is neither perceived, nor is it insisted upon by him. It could have con- stituted but a small portion of the inducement to create the electoral colleges ; for the same end could have been better attained by the simpler process of a direct election by the people themselves. The whole scope of the scheme, and of the other arguments used by him in its favor, rather tends to show that, though the choice was conferred on persons se- lected by the people, it was neither expected or desired that the wishes of the people should immediately and directly con- trol the choice. The clear intention was, that the intervention of electors should abstract the choice from the more immediate influence of popular sentiment. So far from intending to make it a direct popular election, the only proposition to that effect was promptly negatived by a vote of nine to one. ^^r. Wilson, a talented member and a staunch Democrat, who intro- duced the proposition, declared he v.-as almost afraid to do so, "being apprehensive it might appear chimerical." The same 54 426 LETTERS ON THE PRESIDENCY. gentleman, whilst the resolution stood in favor of an election by Congress, moved a reconsideration, for the purpose of sub- mitting a plan of selecting fifteen members of Congress by lot, and devolving the election upon them. His motion was seconded by Mr. Carroll, of Maryland ; and Gouverneur Morris said of it, that he preferred leaving it to chance, rather than trust it to cabal. Whilst, then, among the ends proposed to be attained, the plan is admitted to have efiectuated that of making "the sense of the peoj)le operate," yet that is the only one, and no merit can be inferred therefrom to the plan gener- ally, because this end is not peculiar to that plan, and because it has been effectuated in a degree so far beyond what was in- tended, that it not only runs counter to the theory of the whole plan, but has disappointed all the other results antici- pated from it. Second. " It was desirable that the immediate election should be made by men most capable of analyzing the quali- ties adapted to the station, and acting under circumstances favorable to deliberation, and to a judicious combination of all the reasons and inducements that were proper to govern their choice. A small number of persons, selected from the general mass, will be most likely to possess the information and dis- cernment requisite to so complicated an investigation." Here we have the true theory of the whole plan. The elec- tors were to be a body of men, selected for their virtue and intelligence, who, untrammeled and uncommitted by the pledges or instructions, were to have surrendered to them the whole power of choosing the President. The people were to make a voluntary surrender of their own predilections into the hands of the electors, trusting everything to their unbiased intelligence. Popular sentiment was to have no farther effect or influence in the choice than that of securing the proper de- gree of purity and intelligence in the individual members of the electoral colleges. The electors once chosen, everything was to be left to their discretion, — except that, to prevent its degenerating into a pre-arranged contest between any two men, not even the electors themselves were allowed to express their preference for any one man, but each elector was required to vote for two men as President. LETTERS OX THE PRESIDENCY. 427 Third. "It was peculiarly (k'sirable to afford as little oppor- tunit}^ as possible for tumult and disorder. This evil was not the least of those to be dreaded in the election of a magistrate who was to have so important an agency in the administration of the Government. But the precautions that have been so hap- pily concerted in the si/stem under consideration, promise effectual security/ against this mischief. The choice of several, to form an intermediate bod}- of electors, will be much less apt to con- vulse the community with any extraordinary or violent move- ments than the choice of one, who was himself to be the final object of the public wishes. As the electors are to assemble and vote in the State in which they are chosen, they will be much less exposed to heats and ferments, which might be communicated from them to the people, than if they were all convened together." Here is specified, as the most prominent evil in the electing a Chief Magistrate, that popular ferment and strife, which it was supposed the concerted precautions of the system had so happily guarded against. It is deservedly placed in the fore- ground, as the evil most to be aj^prcheuded. It is the evil that has proved the destruction of every Government that had an elective Chief Magistracy. AVe are now working out the problem, whether such a Government can continue to exist for any great length of time. To the want of faith in its suc- cessful solution is alone to be attributed the patient acquies- cence of the wise and virtuous men of other countries in their hereditary monarchies. During the present state of mental advancement in Europe, with the influence of our example before them, it is difficult to ascribe that acquiescence to any other cause. They at least deem the peril so great, that they are content to wait a century longer for the full development of the experiment we are making. The result in the Southern Republics calls for anything but a confident security on our part. It is true, we have a population with habits and institu- tions materially different from those of any other countiy — so different that there is some room for hoping, if not for ])eliev- ing, that we may successfully escape the peril. It must, how- ever, be remembered that we are but of the general human family, possessing a full share of the vices and follies of the 428 LETTEKS ON THE PRESIDENCY. race, and that we have no charter of exemption from the doom of other people. It is the part of wisdom and prudence to he vigilant as to the operations of every portion of our Govern- ment. There is none other requiring so constant and wakeful a vigilance as this. Fourth. "It was desired that every practicable obstacle should be opposed to cabal, intrigue, and corruption. The appointment of the President does not depend upon any pre- existing body of men, who might be tampered with to prosti- tute their votes. It is referred, in the first instance, to an im- mediate act of the people, to be exerted in the choice of persons for the temporary purpose of making the appointment. All those who, from situation as Senators, Representatives, and office-holders, might be suspected of too great devotion to the President in office, are excluded from the trust." Cabal, intrigue, and corruption he pronounces the most deadly adversaries of republican government. If the plan of the Convention has secured us against their growth among us, and their influence upon the Presidential election, then, in- deed, the Convention achieved a desideratum in the science of government above all praise. But, if it should appear, on inquiry, that it has saved us from none of those evils, but has fostered and propagated them to an extent, which promises results as deleterious as they were ever known to yield in any country, then, whatever merit may be accorded to the theory of the plan, it must be conceded that there is some inherent defect in it when practically operated with, that must strip it of every claim of merit, as either a salutary or safe expedient. Its authors, if they had lived to see it operating so directly contrary to all their intentions and expectations, would them- selves have been the first to condemn it. The argument de- duced from the danger of pre-existing bodies of men being tampered with, and prostituting their votes, is unanswerable against entrusting the election to any such body, and so far vindicates the superiority of the plan adopted over that first agreed upon, giving the election to Congress. But the argu- ment wholly overlooks that part of the plan adopted, which refers the election to the House of Representatives, in case no candidate receives a majority of the votes; an event of very LETTERS ON THE PRESIDENCY. 429 probable and frequent occurrence. For the House of Reitre- scntatives is just such a pre-existing body of men as is liable to be tampered with, and the plan is obnoxious to this severe censure, just in proportion to the chance of the election being devolved on that body.* Fifth. "Another motive was, that the President should be independent, for his continuance in othcc, of all but tlic people themselves. He might otherwise be tempted to sacrifice his duty to his complaisance for those whose favor was necessary to the duration of his official consequence. This advantage will also be secured, by making his re-election depend on a special body of Representatives, deputed by society for the single purpose of making the important choice." If the plan has secured this advantage, — if it has rendered the President a perfectly free agent, to pursue the behests of his country according to the dictates of his own judgment, — if it has secured him from improper influence from prominent po- litical personages, and from the galling of party shackles, — then for this also it is entitled to great commendation. The Convention justly deprecated it as one of the worst ills that could ever befall the country, that our Presidents should ha- bitually become either the tools, the avengers, or the remune- rators of a party ; or that they should have the inducement to tamper with inliuential popular leaders to obtain a re-election. If, therefore, on the other hand, the effect of the plan has proved itself to be to generate party feuds, to render every election a strife between parties, and, by consequence, to ren- der every President the head or minion of a party, — if it causes him to depend upon party tactics for his elevation and re-elec- tion, then this supposed merit of the plan must be totally de- nied to it. If, at the same time, another plan can be devised, which shall truly and securely possess this merit, which, from the mode of his election, whilst it takes from him all motive to become a mere party President, or other than the truly in- dependent President of the nation, will also remove the great * The practical effect of the plan beinj; to give the appointment of our Presidents to party conventions, it has generated just such a pre-existent body of men to be tampered vrith. 430 LETTERS ON THE PRESIDENCY. incentive to all tliose heated party strifes and corrupt political cabals, with which the plan of the Convention has teemed so fruitfully, how fearlessly may not a comparison be challenged of the respective merits of the two plans in this particular. Sixth. " This process of election affords a moral certainty that the office of President will never fall to the lot of any man who is not in an eminent degree endowed with the requisite qualifications. Talents for low intrigue, and the little arts of popularity, will not suffice to make him a successful candidate for the distinguished office of President. It will not be too strong to say that there will he a constant prohahility of seeing the station filled hy characters 'pre-eminent for ability and virtue.'' How sadly may great men be deceived, as to the practical operations of a system of government, the theory of which had been elaborated to the utmost of human wisdom ! It need not be asked whether this sanguine patriotic anticipation of the great man has been fulfilled. There is no purpose of inter- meddling with the personal predilections and antipathies of any one. It belongs not to an abstract dissertation on the fit- ness of a particular feature of the Constitution to weigh or disturb existing political prejudices. But it may be allowable to look into the future, and ask who of any party anticipates such a result for the next or any future election, so long as it remains dependent, as it now does, upon the effect of mere party combinations. Such ma^y or may not be the result of the next or any future election, but no man looks for it now, as a necessary consequence of the system. A man may be pre-eminently qualified for the office of President, without being at all qualified for the head of a party. The latter qual- ification is now the principal requisite to attaining the Presi- dency. It was vain for the Convention to have anticipated such results from the system, unless the influence of parties had been better guarded against* * What President have we had, during the last thirty years, whose qualifica- tions were of so prominent a character as to be worth a struggle to elect him? A book-maker has recently given a biographical sketch of all the present aspirants to the Presidency, more than twenty in number. His list is not complete ; but complete it to the full number of at least thirty, and no candid person will say there is an eminently well-qualified man among them. The LETTERS ON THE PRESIDENCY. 431 Let US now turn to some of the reasonings used at the time of the adoi)tion of the Constitution, to prove that the ek-etion of President shoukl not be confided to Congress. It will be found still farther to illustrate the reasons for adopting the present plan, and point out some of the evils it was supjiosed would thereby be guarded against. For brevity, those argu- ments will be given as condensed and abridged b}- another. " One motive was to escape those intrigues and cabals which would be promoted in the legislative body by artful and design- ing men, long before the period of choice, with a view to accom- plish their own selfish ends. It would he in the potcer of an ambitious candidate, hy holding out the rewards of office^ or other sources of honor and profit, silentlt/ but irresistibly to influence a majority of votes, and thus by his unprincipled conduct secure a choice, to the exclusion of the purest and 7nost enlightened men of the country. The very possession of the elective power would cause it to mingle itself with all the ordinary measures of legislation. Compromises and bargains would be made, and laws passed to gratify particular members or conciliate particular interests, and thus a disastrous influence would be cast over the whole Government. The President would become the mere tool of the dominant party in Congress, or they would become his tools ; no measure would be adopted which was not in some degree connected with the Presidential election, and no Presi- dential election made but what would depend upon artificial combinations and a degrading favoritism." To modern ears this language sounds very much like a phil- ippic against our present system of Presidential elections ; but, in truth, tliey were the arguments used at the adoption of the Constitution, against confiding the election to Congress, and are what were pointed out, in those days, as some of the evils which it was then supposed the present plan was to obviate. choice between the three or four most prominent, on the score of qualifica- tion, is not wortli the toss of a copper. As to the great bulk, there is not a man of them who has less than half a dozen fellow-citizens in his own State of superior or equal qualification to his own. The wonder is, with those who know them, how such men ever came to be thought of for such a position. Yet from among them some partv convention will appoint our next President in 1860. 432 LETTERS ON THE PRESIDENCY. If that plan lias, as we all know it has, instead of obviating, actually produced all the evils here depicted, what more can be necessary to satisfy every one of the imperious necessity for an immediate and radical change ? There is nothing better calculated to lower our estimate of human infallibility than the total failure of this feature of the Constitution to work in practice according to the theory upon which it was founded and the anticipations of its projectors. For there certainly never was so much political wisdom, so profound a knowledge of the science of Government convened together in any assembly as that which formed our Constitu- tion. If such men were so deceived in the adaptation of means to ends, how humiliating the lesson it teaches of the untrust- worthiness of human forecast ! It perhaps should teach, at the same time, the insufficiency of all mere paper-guards, checks, and balances ; and that the best, if not the only reliance, for the purity and perpetuation of our institutions, rests on the purity and intelligence of the people. If such be our only or our surest trust, for the perpetuation of this glorious fabric of Govern- ment, how sedulously should we weed from our institutions everything tending to corrupt our population. The fallacy of the whole plan proceeded from not having duly weighed or understood the influence of partyism on the elections. The practical operation of the system is not merely not to allow the electors that perfect freedom of choice which was intended, but to allow them no discretion whatever. They are, in no instance, elected for their individual worth and merit, or capacity to make a choice, but because they have already pledged themselves to vote for a particular candidate. ISTot one voter in ten knows even the names of the electors for whom he votes. Many never know that they are voting for electors at all. It is a common practice in those States, where the votes are taken viva voce, for the voter merely to name his candidate for the Presidency, and his vote is recorded in favor of the whole electoral ticket that stands pledged to vote for that person. Thus has the whole scheme, which was devised for the express purpose of avoiding the evils of a direct popular election, been set at naught, and the election become, literally as well as in effect, directly and purely popular. The electors LETTERS ON THE PRESIDENCY, 433 have ceased to be anytliing more than a useless, unnecessary part of the machinery, which might safely be cast aside alto- gether, Avithout producing any important cft'cct upon the system. But even if the people were to fulfil what the theory of the plan requires from them, and unqualifiedly transfer to the elec- tors their power of choosing, still the electors would be so necessarily liable to local sectional bias, that it would seldom occur that the election did not devolve on the House of Repre- sentatives. This, however, as a constant mode, was as little within the contemplation of the framers of the Constitution as that of a direct popular election. It was barely provided to meet a contingency, which it was supposed would be of rare occurrence. Yet there are few, at this day, who are not con- vinced that, from this time forth, it will seldom, if ever, happen that the election is not devolved on the House, except where it is the result of a contest between two pre-existing parties. H such is to be the constant result, it would be far better at once to do away with the cumbrous preparatory machinery of electing electors, with all its accompaniment of popular fer- ment and strife, and give the election directly to the House. But no such plan can ever obtain public sanction. Why it cannot and should not, will be shown in the next number. No. m. I have said that the election of President never will or ought to be given directly and exclusively to the House of llcpresen- tatives. It never will, because the large States will not agree to the present mode of voting there by States, and the smaller States will not consent to change it into a vote per capita. It ought not to be so given, because, without dwelling on a host of other objections, there is an incompatibility in the exer- cise of such a power by the House, when viewed in conncetion with other features of the Constitution, alone sufficient pe- remptorily to forbid it. To give requisite energy and effieiency to the Government, the President must always be allowed to retain vast power and patronage. Their exercise is natuially liable to more abuse and corruption than all the other opera- tions of Government. The members of the House of Repre- 55 434 LETTERS ON THE PRESIDENCY. sentatives are the natural, as well as constitutional, sentinels, to watch and guard against its ahuse. The President should be neither their creature nor their master. The powers they severally possess are practically and theoretically of an antag- onist character, and are wisely placed as a mutual counterpoise. This counterpoise is entirely destroyed when he is elected by the House. "We find, in practice, that the party in Congress who even lend the aid of their influence toward making a President by the popular vote, are bound to sustain him, right or wrong, or, at least, do so sustain him, in order to sustain themselves. The talents and vigilance which should be devoted to the detection and exposure of Executive abuse of power, become its defenders and apologists. The corruptions of the Government are successfully cloaked under the imputed virtue and vigilance of the Representatives of the people. This is true, and of easy proof, as to every party President we have ever had. The great bulk of the people are too removed from the immediate scene of action and source of correct information, either to detect the imposition themselves or to credit its exist- ence, when detected by political adversaries whom they habit- ually distrust and disbelieve. This destruction of the natural functions, and entire perversion of the assigned duties of the immediate Representatives of the people, constituting, as it does, one of the strongest objections to the present system, would apply with redoubled force to a plan vesting the election exclusively in the House. The amendment of the present mode, which seems hereto- fore to have obtained most favor is that which, taking from the House all participation in the election, and abolishing the intervention of electors, gives it exclusively to the people. This change might be a step from the bad to the less bad ; but without any decided approximation to the good. It is a mode into which the nation might be driven, in avoidance of the evil of frequent elections by the House ; but it is one which would never have been proposed or adopted as an original scheme, for its own merit, or as one likely to avoid any of the ills, or attain any of the advantages within the contemplation of those who framed and adopted the Constitution. The present blended plan is liable to objections, therefore, LETTERS OX THE PRESIDENCY. 435 that would not apply to cither of those aniendments scparati-ly. "We have now all the heat, turmoil, imhlic exciteiueiit, and corruption that could possibly result from a direct poiiiilar election, without any certainty of the contest resulting in the selection of one who will be acceptable to a majority of the nation. If it has not already happened in the case of Mr. Adams, it is easy to see that it may and no doubt often will happen (from the mode of voting and other causes) tliat the person selected by the House will be unacceptable, not merely to a majority of the nation, but even to a majority of the mem- bers of the House. The present plan, therefore, except in the cases of contests between two existing parties, has not even the merit of securing to popular sentiment a certain control over the result. This is radically wrong, and Mr. Adams's case is a striking instance in proof that it is so. So long as the system of electing is kept up with an ostensible submission of the question to the popular voice, the popular voice ought to control the result. The great objection to the present plan, or any mere modi- fication of it, is its inevitable tendency to generate party feuds of the most disgracefid and deleterious character. The natu- ral proneness of all republics to this inherent vice was neither overlooked nor disregarded by the Convention. The misfor- tune is, that they miscalculated the sufiiciency of the guards which they employed against it. The fact was not then suffi- ciently known that to make the people indirectly participate in the election was ultimately to give it to them directly and exclusively. The Convention was too well versed in human character not to know the vast machinery of corruption that would be put in requisition to excite the great l)ody of the people, if the election were transferred directly and exclu- sively to them. Doctor Franklin proposed, in Convention, that the President should be allowed no pecuniary compensation for his ser%'ice8. Listen to a part of what he said in support of his proposition, and then judge whether human nature was understood in that day or not: " There are two passions that have a powerful in- fluence on the affairs of men. These are ambition and avarice ; the love of power and the love of money. Separately, each 436 LETTERS ON THE PRESIDENCY. has great force in prompting men to action ; but when united, in view of the same object, they have in many minds the most violent effects. Place before the eyes of such men a post of honor, that shall be at the same time a j)lace oi profit, and they will move heaven and earth to obtain it. The vast number of such places it is that renders the British Government so tempestuous. The struggles for them are the true sources of all those factions which are perpetually dividing the nation, distracting its councils, hurrying sometimes into fruitless and mischievous wars, and often compelling submission to a dis- honorable peace. "And of what kind are the men that will strive for this pro- fitable pre-eminence, through all the bustle of cabal, the heat of contention, the infinite mutual abuse of parties, tearing to pieces the best of characters ? It will not be the wise and moderate, the lovers of peace and good order, the men fittest for the trust. It will be the bold and the violent, the men of strong passions and indefatigable activity in their selfish pur- suits. These will thrust themselves into your Government, and be your rulers. And these, too, will be mistaken in the expected happiness of their station : for their vanquished com- petitors, of the same spirit and from the same motives, will perpetually be endeavoring to distress their administration, thwart their measures, and render them odious to the people." Does not this sound like a thorough knowledge of human nature ? does it not almost seem as if the wise old doctor had somehow realized his own queer wish of being bottled up in good old Madeii'a, and, after the lapse of fifty years, resusci- tated to see what the country had come to, and give this graphic sketch of the working of our system of Presidential elections ? I cannot refrain from giving another extract from the same speech. " It will be said we don 't propose to establish kings. I know it ; but there is a natural inclination in mankind to kingly government. It sometimes relieves them from aristo- cratic domination. They had rather have one tyrant than five hundred. It gives more the appearance of equality among citizens, and that they like. I am apprehensive, therefore, perhaps too apprehensive, that the Government of these States LETTERS ON THE PRESIDENCY. 437 may in future times end in a monarcliy. But tlii.s catastroi»lie I tliink may be long delayed, if in our proposed nystem we do not sow the seeds of contention, faction, and tumult. If we do, I fear that, though at first we do em[)loy a number, and not a single person, the number will in time be set aside, it will only nourish the foetus of a king, and a king will ulti- mately be set over us." How is the fact — what says experience after fifty years' test of the system ? did they not sow the seeds of contention, fac- tion, and turmoil? If, instead of intending to avoid those evils, as they no doubt honestly did, they had intended to oast among us the very apple of perpetual discord, they could not have better succeeded, by any other device, than in that they unwittingly adopted, in the system of electing our Presidents. Let us look a little into what the system has already produced in that way, and it will enable us the better to anticipate what will ensue from the same cause in future. The first serious contest for the Presidency generated a party feud that lasted fifteen or twenty years, and had well nigh severed the Union. The second created another that has lasted twelve years, and promises to last at least four more. They both were and are felt in their efiects throughout all the ramifications of societ}-. They poisoned and tlioroughly cor- rupted the course of legislation in both the Federal and State Governments. The influence of each was and is felt down to the election of a constable. The first severed the nation, both in and out of Congress, into two great parties ; the one uni- versally censuring, whilst the other, with a zeal equally blind, approved everything the Administration did. The results of the second have been about the same. What has been done in Congress for the last fifteen years, but with an exclusive eye to the ensuing Presidential elections ? During both those contests, every member of Congress and the State Legislatures was and is elected with a view to that subject alone, without a thought on his qualifications as a legislator. The question has mingled itself, as it did during the days of Jefi'ersou and Madison, with even the social relations of life, making private individual friendships and enmities, and extending to tlie operations of private business ; it even gives to, or Uikes from, 438 LETTERS ON THE PRESIDENCY. a mechanic his employment. The parties are no longer sev- ered, as in the days of Jefferson and the elder Adams, by even the appearance of great leading principles, which gave that contest the outward aspect at least of something noble and worthy to stir freemen and republicans. "Wliatever may be said of the subsequent issues that have been formed since the present contest began, it had its rise from the merest, the most unworthy, the most degrading scramble for office and power. If we are not now, in the language of Mr. Jefferson, all Republicans, all Federalists, we have become so mixed that the only true distinction is between those who are successful and those who are unsuccessful in the scramble. Democracy still retains, as a word, great potency among us ; it is still a talisman to evoke a great spell upon the people. But so little do its principles concern those who so successfully evoked and used it, that the chief offices of the Government passed through the hands of distinguished, unreclaimed, unconverted, adher- ing Federalists, who, whilst ruling the nation in the name and by the authority of the great Democratic party, engrafted on the Government some of the strongest of their own Federal principles. "We all recollect, and for the sake of posterity it should never be forgotten, the excess to which parties were carried in old Democrat and Federal times. Some of the brightest and noblest men of the Republic suffered party exacerbations to carry them so far, as to give cause for suspicion that they wanted common regard and affection for their country. "Whilst their native land was in a death struggle with an all- powerful foreign nation, in as righteous a war as ever was waged, they gave it no succoring aid, lent it no helping hand, nor yielded it even " the cheering of a friendly voice ;" but, as far as in them lay, by a more than apathetic indifference, un- nerved and paralyzed the country in its gallant efforts to free itself from the peril in which it was placed. Is it now credible that just when the country had successfully passed the crisis, when peace was restored, and when all true hearts were swell- ing with exultuation for the then recent and even brilliant victory of New Orleans, that a distinguished member of that party, standing among the first for talent, and whose memory LETTERS ON THE PRESIDENCY. 439 is still honored, whilst uiibosoniing himself in a private conti- deutial letter, expressed a stron<^ regret at the achievement of that victory, because it would render Mr. Madison's Adminis- tration popular? Is it credible that the capture and vandal- like sacking of Washington City was hailed with cheers and applauding shouts by native-born citizens of this country? To such an extent were the minds of the people of Xew Eng- land inflamed by party strife, during the war, that it remains a question between them and their leaders to which the credit is due, that some distinct overt act was not perpetrated toward the severance of the Union. Do I more than justice to the present state of feeling among that people, in believing that there needs no foreign censure to bring upon them a proper sense of that great error? The spirit of the Pilgrim fathers, who blended so finely the characters of republican soldier and Christian martyr, has all evaporated, or their descendants are longing for the occasion that shall enable them to right them- selves in the estimation of their countrymen, by washing out every trace of that error with their blood. I venture the pro- phecy, that whenever again the national banner shall flaunt the breeze in defiance of a foreign foe, they will be foremost in their efibrts to make the defiance good ; and, that discarding all preachings, whether lay or ecclesiastical, which do not teach duty to country as the paramount earthly obligation, the rallying cry of all New England will be the noble sentiment of the gallant Decatur, '■'•our country, right or wrong." But whilst others, in fraternal sympathy for human frailty, overlook that error, and trust to her redeeming virtues, let her never forget that the only blot on her escutcheon is mainly owing to the excesses of party spirit growing out of contests for the Presidency. Can it be certainly affirmed of the leaders of the Democratic party that, if their situations had been reversed, their conduct would not have been very similar to that of the Federal leaders during the whole course of that conflict? lie who has suf- ficiently studied human nature in history and personal obser- vation, must doubt whether it is worthy of such a compliment. It is a most grievous evil to proud ambitious minds to l)e shut out, with a ban of proscription, from all the dignities and 440 LETTERS ON THE PRESIDENCY. honors of their country. There is no principle or motive of human action, whether in religion or politics, of such efficacy in moving large bodies of men, and driving them into excesses, as that of partyism. History proves this. "We should prob- ably accord too much merit to any set of men, to say ihej would not have been similarly swayed by party spirit, if equall}?- placed within its influence. Witness the conduct of some of those Democratic leaders in pursuit of the rash remedy of nullification, to avenge their party defeat in opposition to the tariff. You may tell us that the people of South Carolina never would have been stimulated to such excesses, to redress supposed pecuniary wrongs, if Mr. Calhoun and his talented friends had not then labored under political proscription and had personal wrongs to avenge. He would retort, that the people of New England never would have been stimulated to such excesses during the war, in redress of their supposed pecuniary wrongs, if their leaders had not then labored under the same proscription, and had their party defeats to avenge. Let him who is disposed to deny such potency to party spirit, first inquire and ascertain what it is. If he wishes to know it in its effects, let him trace them in the ruins of all other Republics, or in the oceans of human blood with which the world has been drenched by partyism in religion. Would he know it farther, let him ask all history, or even the political party history of his own yet infant country. He will be told that it is a ruthless tyrant, whose verj^ life-principle is an ignoble selfishness that treads upon and crushes in its path all the kindlier sympathies and more generous impulses ; rends asunder the social bonds and fraternal ties ; commands one only duty, obedience; has one only principle, for its whole moral qo(\.q, fidelity ; knows no friendships, makes no alliances, but those of interest ; not implacable toward its foes, it is un- forgiving toward its tiring or faltering friends ; for apostacy, the only crime in its code, it hoards its deadliest vengeance ; in a word, it is the evil genius of Republics. It is that evil genius which has met, and sooner or later will meet, the last patriot of every free country at its fatal Phillippi. Such sweeping general censure may seem to require from the writer the confession, that he claims for himself, person- LETTERS ON THE TRESIDEXCY. 441 ally, no cxeiTiption from it. lie admits himself to he a full partaker of those foibles and vices of his race that lead to such excesses, when brought under the influence of pnrtyism ; and that formerly he was a full partaker of the violent political partyism of the day. Prudence forbids the opening of the later pages of our his- tory ; but were it done, what a fruitful fund for comment would the political transactions of the last sixteen 3'ears afford ! How instructive and valuable a lesson, as to the effects of party spirit, would be afforded by laying bare to public gaze the true springs and motives of action in the various party operations of that period ! How important and useful to the present in- quiry would it be to strip military renown of all the mighty influence and power over public sentiment which the unini- tiated have so causelessly ascribed to it; to detect and expose the monstrous falsehood history will innocently pahn upon posterity, by attributing to military fame and personal popu- larity what properly belongs to party drill and discipline. To show, for instance, various measures of General Jackson that were not sustained by his personal popularity, but by the strength of his political party, and through its well-drilled obedience. You and Mr. Clay, and other leaders of your party, though somewhat of the latest, seem at last to have come to full light on this subject. You all seem to have come at last to the full knowledge that "names are things," and when party names, that they are most potent things. Hence you all have spared no pains, during the late campaign, to convince the people that the men in power are not true Democrats, and that their measures are not Democratic measures. You have made much profit thereby, and none of you will ever again fail to see this subject in its true light. Your zeal in your new preaching has almost convinced you that you 3'ourself are a Democrat; whilst Mr. Clay's has caused him to remember that lie has always been one. These topics, however, must be forborne. Even for the pur- poses of an abstract discussion, there might be ofloncc in show- ing with how small an outfit of popular support the two sons of military glory commenced their political career, and how 56 442 LETTERS ON THE PRESIDENCY. despondingly for a time they pursued it, until by chance each was taken up by party, packed ^\'ith the remnants of the for- tunes of other aspirants, and so each, by party, made to win the throne. Ko. IV. To avoid dabbling in existing party politics, I will give you from Mr. Clay's able Hanover speech, perhaps the ablest he ever made, his view of a part of the effects and operation of partyism in this country : " Modern Democracy has reduced the Federal theory of a strong and energetic Executive to practical operation. It has turned from the people and their immediate representatives, the natural allies of genuine Democracy, to the Executive ; and, instead of vigilance, jealousy, and distrust, has given to that department all its confidence, and made to it a virtual surrender of all the powers of Government. The recognized maxim of royal infallibility is transplanted from the British monarchy into modern American Democracy, and the Presi- dent can do no wrong ! The new school adopts, modifies, changes, renounces, renews opinions at the pleasure of the Executive. Is the Bank of the United States a useful and valuable institution ? Yes, unanimously pronounces the Demo- cratic Legislature of Pennsylvania. The President vetoes it as a dangerous and pernicious establishment ; the Democratic majority in the same Legislature pronounce it to be danger- ous and pernicious. The Democratic majority of the House of Representatives declare the deposits of the public money safe in the Bank of the United States. The President says they are unsafe, and removes them ; the Democracy say they are unsafe, and approve the removal. The President says the scheme of a sub-treasury is revolutionary and disorganizing ; the Democracy say it is revolutionary and disorganizing. The President says it is wise and salutary ; the Democracy say it is wise and salutary." This is a pretty picture, sir ; and, though some will say there is caricature in its intended application, all must agree it is a fair portraiture of modern partyism. The picture, however, is not complete. Let it be my task to fill it up with a few touches LETTERS ON THE PRESIDENCY. 443 of ancient Democracy and Federalism, in wLich none shall say there is any caricature, but a true painting from the life. The President said, and ancient Democracy said after him, in 1810, that a national bank (then under a Federal directory) was unconstitutional, useless, and dangerous. Ancient Fede- ralism said it was constitutional, useful, and not at all dangerous. In 1815 and 1816 the President said a bank was constitutional, not dangerous, and very necessary. Ancient Democracy said as the President said, and chartered a new bank. Thouut little importance anyway, there suddenly came a "killing frost" that wilted and blighted all these hopes and honors in a single day. To descend from poetry to slang, from the moment General Jackson struck him that blow, he was a dead cock in the pit — dead as if the coffin had closed over his bones. All men saw it. Summer friends slunk away from about him as a doomed man. His influence and power with the party were gone on the instant. Like a proud spirit he resisted and re- sented. That sealed his doom irrevocably. But yesterday " the rose and expectancy of the fair state, the obsei-ved of all observers;" to-day, "none so poor to do him reverence." Sitting in his high place, a mournful emblem of the instability of human greatness, he but served exulting rivals with averted thumb to point a bitter gibe, reminding him of the barren, non-descending sceptre. The rankling of that celebrated sar- casm, if rankling there were, was in the consciousness of the fallen great one that he himself was mainly instrumental in elevating General Jackson to the Presidency. For it is but sober truth, that, without Mr. Calhoun's aid, General Jackson never could or would have been made President. Xothing is more undoubtedly known than this, among all the initiated, among those who knew and understood the various party operations and combinations by which alone General Jackson was elevated to the chair. How strikingly illustrative of the overwhelming power of the head of a dominant party is it, that he who had the power to place him there, had not the power in self-preservation to ward off one single death- dealing blow from the hand he himself had armed with power. It is not intended to deny but that the dominant party in Congress has the power to curb and control a party President, if it can be brought to combine unanimously and risk the con- tinuance of the part}' domination among the people. Far from it. On the contrary, it is firmly believed that in the palmiest days of General Jackson, at the very height of his supposed arbitrary' power, if sucli a combination could have been brought 57 450 LETTERS ON THE PRESIDENCY. to bear against him, if the partj scaffolding on which his power was raised and sustained had been knocked from under him, his political death would have been as sudden, as unavoidable, and as irrevocable as that which he himself had inflicted on Mr. Calhoun. The House of Representatives, if ever it can be brought to act with unanimity on any subject, will prove itself to be, as it always should be, the strong arm of the Gov- ernment. It more nearl}- represents popular sentiment than any other department, and popular sentiment is nearly the whole power of the Government. But such combinations must be of rare occurrence; probably not more frequent than those of successful rebellions and conspiracies in other coun- tries. As an evidence of how far we may expect or hope good from such combinations, an incident taken from General Jackson's party reign aftbrds an instructive example. Speaking of his bank veto, he told his Secretary, Mr. Duane, that if Congress had remained in session six weeks longer, the bank would have bought a recharter by bribery of the members. This declara- tion was made public, and to this day remains undenied and unexplained, as GeneralJackson's opinion of the corruptibility of his own party in Congress, — for it was they who opposed the re-charter, and required the bribe to bring about what he said could have been so bought. At the next session after the disclosure of this declaration, Congress had to pass upon his order removing the deposits. Did the party which he had thus so grossly insulted, who thus stood accused by him before the whole nation of such corruptibility, did they avail themselves of the occasion he had aflbrded, by that obvious abuse of power, to make him feel the eftects of a commendable resent- ment ? 'Not so ; but, like crouching hounds, they took the lash of their master, and presented themselves as a shield between him and popular censure. If our system of electing Presidents has already brought us to a point like this, if it has rendered the Executive the ab- sorbent of so nearly all the powers of Government, its inevi- table tendency must be ultimately to make the President, in very truth, the Government, literally the whole Government. If the popular excitement produced by a Presidential contest, LETTERS ON THE PRESIDENCY. 451 as we now see it, be any fair index of what wc are to expect in future, what Avill it be when that ultimate point shall have been attained, with only the natural accessions to the already tremendous patronage of the President; when the Presidential chair from the power, the honor, and high distinction it will confer, shall become the highest prize ever held forth to human emulation and ambition ; and when the contest comes to be waged amidst fifty millions of people ! Feed ourselves with false and delusive hopes as we may, the stoutest heart must shrink appalled at the prospect. Ko. V. I shall now call your attention to another of Mr. Clay's politi- cal pictures, taken from his Hanover speech. After stating that, in his deliberate opinion, "the present distresses and dis- tracted state of the country may be traced to the single cause of the action, the encroachments, and the usurpations of the Executive branch of the Government," he reviews what he terms "this stupendous structure of Executive machiner}- and despotism, which has been reared in our young Republic," and then proceeds, thus : " The sum of the whole is, that there is T)ut one power, one control, one will in the State. All is concentrated in the Pre- sident. He directs, orders, commands the whole machinery of the State. He executes, according to his pleasure or caprice, the whole powers of the Commonwealth, which have been ab- sorbed and engrossed by him. One sole will predominates in and commands this vast community. If this be not practical despotism, I am incapable of conceiving or defining it. The existence or non-existence of arbitrary Government does not depend upon the title or denomination bestowed on the chief of a State, but upon the quantum of power he possesses or wields. "I have thus, fellow-citizens, exhibited to you a trne and faithful picture of Executive power, as it has been enlarged and expanded within the last few j'ears, and it lias been pro- posed farther to extend it. It overshadows every other braneh of the Government. The source of Legislative power is no 452 LETTERS ON THE PRESIDENCY. longer to be found in the Capitol, but in tbe palace of the Pre- sident. How is it possible for public liberty to be preserved, and the Constitutional distributions of power among the de- partments maintained, unless the Executive career be checked and restrained." Truly, sir, this is a most gloomy picture. You yourself have drawn several such during the late canvass. Some allowance is no doubt to be made for extra coloring, on account of the time and occasion. But it is to be hoped and believed that neither of you would be capable of so solemnly presenting it to the nation, unless you sincerely believed it was substantially a true picture. For myself, I adopt the whole of it, coloring and all. It is not too highly colored for my opinion. But what I want to ask you and Mr. Clay, and in behalf of the nation to call for a response, is. How or whence did this des- potism come upon us ? You say it is not in the Constitution, nor to be traced to that as its source. Whence, then, came it? Mr. Clay's general declamation, about absorptions and en- croachments, is well enough for the hustings, but won 't do for sober chat in the closet. We want facts. We want you to point out distinctly wherein and when did General Jackson or Mr. Van Buren ever transcend the limits of the Constitu- tion, or usurp a power not clearly and expressly assigned to the Executive. To many of 3^our party it will seem very pre- sumptuous, but to you it will wear no such aspect, that T should, as I do, defy either of you to produce the instance. You will not cite the power of removal from office, for that is a debatable question ; and, as you admit in your Richmond speech, they found it a settled practice of the Government, established with the assent of the first Congress that set under the Constitution, and with the full sanction of Mr. Madison, who ought to have known better than any other man what the Constitution meant. You will not cite the removal of the de- posits; for, sift that subject as you may, even pervert it with all your ingenuity, and the most you can make of it is a gross abuse of an undoubted power. You will not cite certain as- sumptions of General Jackson, never acted on ; for he and they have had their day, and as mere opinions they will have neither weight nor authority with any one. Even his successor, his LETTERS ON THE PRESIDENCY. 458 promise concerning the "foot-steps" to tlie contrary notwith- standing, never would hazard hi.s reputation as a Constitutional lawyer hy adojtting or avowing them. My remembrance .sup- plies no instance one whit more plausibly in your favor than either of these. I^o such instance can be produced. Even all the distinctly tangible abuses of power, it will be found, on a candid re\dsion, are circumscribable wdthin those two sub- jects, the removal of the deposits and the removing and ap- pointing of officers. We have, then, all this absorption of power by the Execu- tive, without a single usurpation or a tangible instance of even encroachment. IIow, then, has it come about ? That is what we want a response to. Will you retort upon me the question, how then do I admit the truth of Mr. Clay's picture ? How, if there has been no usuq^ation, nor even any abuse of power, but such as may be circumscribed within such narrow limits, how is it that the President possesses such " stupendous over- shadowing power?" I shall attempt no escape from the ques- tion, by affirming that the dilemma is not mine, but yours and his who did the painting, for that is the very point to which I wish to bring the inquiry. It presents the only true question for consideration in the investigation of this great subject. But it is one to which neither you nor Mr. Clay, nor any other prominent man, has ever yet responded. You have all so unac- countably overlooked it as to warrant the surmise that you had purposely avoided it ; but why or wherefore I know not. M}' own response to the question will be readily anticipated from the tenor of previous remarks. It is believed to be susceptible of none other even approaching to plausibility. All the excess of his powers, above those granted him by the Constitution, are precisely those, and none other, that naturally and neces- sarily devolve on him, as the head of the great politicid party that elevated him to the chair ; the unavoidable inference being that there lies the true source of all the power complained of. This is a power wholly extraneous from the Constitution. It is a power which its framers not only never intended to give, but which, as they supposed, could never come by accession or accretion; for, as they believed, they had most carefully and securely guarded against it ; a power not even rcmotvly inci- 454 LETTERS ON THE PRESIDENCY. dental to tlie scheme of Government, as its projectors intended it should work in practice. Let us, then, cease to wonder how it is that an officer under the Constitution, acting within the pale of his assigned powers, has acquired a power above the Constitution that actually controls and nullifies it; that kicks aside its whole frame-work of checks and balances ; concen- trates all Legislative and Executive power in his own hands ; and reduces the Government to that simple machine, as you have termed it, an elective despotism. It is unnecessary to tell you, but it may not be amiss to re- mind others, that this peculiar and extraordinary power is not of modern growth. It lay in the hands of all our party Presi- dents, and was more or less exercised by them all. It was only more glaringly developed and displayed whilst in the hands of General Jackson, because of the peculiar and unusual mode of its exercise by him. Mr. Jefferson and Mr. Madison treated their party and its interests as a sort of family concern, to be managed by mutual consultation between them and its leaders, in and out of Congress. The interests of the country, it is to be hoped, were always the first consideration ; but the interests of the party were never overlooked, and were carefully attended to as a thing in which they all had a mutual interest, and in the successful operations of which they all had a stake, more or less, of personal reputation. Mr. Jefferson, by the force of his great talents, great personal popularity, and by his still greater tact in the management of men, did just as he pleased, without seeming to do so, and was more truly the Government, and the whole Government, than ever General Jackson was. The difference was in the mode of exercising the power. The one did it with the polished courtesy of a gentleman, and with that nice address of the accomplished statesman, which made the party leaders in Congress actually fancy that it was they, and not he, who were exercisi ug the power. The other did it with the sic volo sic jubeo of the peremptory soldier. To the one, the party was a foster-child of his own, and he treated it with nursing parental care ; and though he was occasionally a most severe task-master over it, yet they seemed to move in concert and acted with apparent harmony. The other never belonged to the party till he was placed at its head, resented LETTERS ON THE PRESIDENCY. 4 ;>a its pretensions as injurious to the imputed sufficiency of his own popularity, cared nothing ahout it except so far as it suh- served his purposes, and was ready at any moment to kick it to perdition whenever it shoukl cease to do so. Ilcnce Ids movements were never in concert or upon consuUation with his party, but always in advance of it. Caring notliing for his party, his course was reckless of its interests, and his career always wore the appearance of dragging the unwilling party at his triumphant heels. His language was, follow me, or we may all go to ruin together, for aught that I care. With them the party was everything. The political existence of each and all of them depended upon saving the party ; to save the party, they were compelled to follow and sustain him. There was no period, during the terms of Jeiicrson and Madison, when the party would not have been compelled to do the same thing if they had ever thought proper to pursue the same course. Besides, all General Jackson's hobbies were popular with the great mass of the people. He did not make them so ; tliey were so before he mounted them. "We have just witnessed what the force of his popularity is, when unaided by party power, even in his own State. What would liave been the result, if he had ever happened to run athwart popular preju- dice, is uncertain. His party in Congress might, in such case, have ventured to take heart and grapple with him. But that is doubtful. It is difficult to bring about the mutual confidence among one hundred and fifty men necessary to such an effort. The likelihood is rather that they would in that, as they will in all other cases, follow on and risk the chances befoi'c the people. General Jackson never displayed, in anything he ever diil, near the same amount of power as was manifested l>y Mr. Jefferson in the infliction of the embargo and other anti-com- mercial measures upon an unwilling nation. There could be no higher manifestations of the despotism of party than tlie peaceable endurance of such a course of measures in a jtopu- lar Government like ours. With our present lights, calndj* reviewing the folly and injurious eftects of many of his meas- ures, nothing can more strikingly illustrate the impropriety of trusting absolute legislative power to any one mnti. Yet 456 LETTERS ON THE PRESIDENCY, Jefferson was a great man, perhaps tlie greatest, save one, that the nation has ever yet produced. His own peculiar bias in politics, that he gave to and impressed upon our institutions, will, for good or for evil, be as durable as themselves. But he had, in an eminent degree, a fault common to most great men, — that is, too much confidence in his own opinion. He was a bold, not to say reckless, theorizer and experimenter. Such men are always dangerous, and the last to be trusted with absolute sway. One of his theories was, that a nation like this, for a fancied ultimate benefit, could, by legislation, be driven or weaned from its great commercial pursuits. His ex- periments upon that idea cost the nation an infinitude of mis- chief. They were carried through by the force of party drill alone. A somewhat similar experiment under General Jack- son, based on a similar idea, has cost the nation nearly as much. The great inexcusable error of both experiments was in the application of severe and costly remedies, without knowing certainly beforehand that the patient would submit to treat- ment, and take the whole prescription. These two similar mischiefs, proceeding from two dissimilar men, should incul- cate the lesson, if we needed it, that neither the excess of wisdom nor the want of it afford any security against the evils of obstinacy and opinionativeness, in men holding absolute power. Mr. Jefferson thoroughly understood the true principles of the Government, and it was his pride, as he felt it to be his duty also, to preserve them in their purity. He, therefore, never violated the Constitution either in its letter or spirit. It Avas General Jackson's misfortune that he did not understand those principles. From his education and previous pursuits, it would be unreasonable to expect that he should have under- stood them. Under the influence of his peculiar temperament, he was, therefore, habitually trampling over the spirit of the Constitution, and treading upon the outermost verge of his powers. Whether, if he had understood those principles, he would have wilfully disregarded them, must ever remain a matter of some doubt. No man doubts his patriotism ; no man doubts that he was always ready to lay down his life for his country. The doubt is, whether he did not lack that moral LETTERS ON THE PRESIDENCY. 457 training wliicli teaches other men a proper reverence for our jiolitical institutions, and makes them view every violation of the Constitution as a great moral wrong. Mr. Jetierson, from the consciousness of his own powers, feared not to encounter other great men, but courted their so- ciety and always kept them about him. General Jackson, from a different sort of consciousness, pursued a different course. When he had been sometime in the chair, the nation was startled with the intelligence, that he never held any Cabinet councils. He even threatened to dispense with the aid of Cabinet ministers, and cany on the Government with chief clerks. In the absence of the appropriate Constitutional ad- visers, the world did him the injustice to believe that he had submitted himself to the guidance of others of a very different description. The opinions of the one, though entitled to great weight with everybody, yet received more consideration than they deserved, from the additional respect attached to them on account of the supposed concurrence of his very able Cabinet. General Jackson's opinions, though entitled to little authority with any one, except on military subjects, received less respect than they really merited, on account of the falsely imputed influence to which they were ascribed. These various points of striking contrast between these two most remarkable men serve fully to explain why the same more extensive and more frequently used powers assumed a so much less obnoxious shape, whilst in the hands of the one, than they afterward assumed when in the hands of the other. They explain why it was left for General Jackson to expose in its nakedness the astounding fact, that our system gives us a pub- lic master, instead of a public serv^ant, in every party Presi- dent, — a fact that seems, therefore, to have lurked comparatively unobserved in our system. I say comparatively unobsen'ed, for from the celebrated report made to the Senate in 1826, by Mr. Van Buren, Mr. Benton, and other distinguished members of the present party in power, those gentlemen appear before that to have had a distinct perception of something very like it, as will be seen by the following extract from that report : "Patronage will penetrate this body, subdue its capacity of 58 458 LETTERS ON THE PRESIDENCY. resistance, chain it to the car of power, and enable the President to rule as easily and much more securely with than without the nomi- nal check of the Senate. " We must look forward to the time, when the nomination by the President can carry any man through the Senate, and his recommendation can carry any measure through the two Houses of Congress; when the principle of public action will be open and avowed, — the President wants my vote, and I want his patronage ; I will vote as he wishes, and he will give me the office I wish for. What will this be but the government of one man ? and what is the government of one man but a monarchy ? Names are nothing. The nature of a thing is in its substance, and the name soon accommodates itself to the substance. " Those who make the President must support him. Their po- litical fate becomes identified, and they must stand or fall together. Might or wrong they must support him." If my recollection serves me, Mr. Calhoun, as chairman of a committee, a majority of whom were distinguished members of your own party, in 1835, made a report to the Senate con- taining very similar sentiments. The time having already arrived, when the President carries any nomination through the Senate, and any measure he pleases through the two Houses of Congress, we have now the ex- pressed opinions of the most prominent men of all parties, that somehow we have wandered from a theoretical Republic into a practical despotism ; yet, strange to say, no man of you all seems to have spent a serious thought upon how we got there, so as to point the way back again. It is well worthy of wonder that with such concurring opinions, from so many eminent men, no one has yet seriously set to work to procure such an amendment of the Constitution, as shall rid us of this elective despotism. We have, furthermore, in this report of 1826, from such men as Mr. Van Buren and Mr. Benton, men who have spent their lives in the exercise of party tactics, and the pursuit of politi- cal warfare, men thoroughly versed in all the phases of human nature when under the influence of partyism, the annunciation of the all-important fact, that they who make the President LETTERS ON THE PRESIDENCY. 459 must and will support him, right or wrong, because their po- litical fates are identified, and they must stand or fall together. Yet, whilst denouncing the excess of Executive power, and in the anxious pursuit of some remedy that will diminish it, with this important fact glaring them full in the face, they take hut little note of it, make no comment upon that which so ob- viously unites the political fates of the President and members of Congress, and make no suggestion of the necessity for doing something to disunite them. Both the reports, as well as all the more modern speeches, are principally made up of perpetual harping upon the extent of the President's patronage, with the power and corrupting influence it was supposed to give him over Congress ; all over- looked that greater and stronger ligament, which binds the Representative to the President — their community of interest and identity of political fate, and that still stronger one, party spirit. The first care, the great solicitude of the Representative is to preserve his seat. He has generally passed through a severe and costly struggle to obtain it; he has no disposition to lose it, and his greatest anxiety is its retention. He finds himself with two masters, — the President, as head of the party, and the party at home, who elected him. Of the two masters, that at home is much the more dreaded. To please both, he has nothing to do but to perform the easy task of obeying the Pre- sident ; whilst to disobey him, is to displease both. He has rivals at home, even of his own party. He knows that the party at home has more confidence in the President than it has in him, and that it feels vastly more solicitude about the Presi- dent's political fate than it does for his. In the one scale is to be poised sympathy for his peculiar individual interests, against the interest of the whole home party placed in the other. It is not diflicult for him to deter- mine which scale is most apt to kick the beam. If he obeys the President, he is almost certain of forgiveness, if not of applause ; whilst if he disobey, it is a rare chance if he does not lose his seat. His own office of Representative, both for emolument and importance, is worth more to him than most of those within the gift of the President. Here, then, is mo- 460 LETTERS ON THE PRESIDENCY. tive amply sufficient, to make liim a faithful and subservient follower, to say notliing of that great principle of cohesion, party spirit, without his ever turning his regard toward the palace in the hope of higher office. A few small crumbs dropped in his way, for the satisfaction of greedy friends at home, generally content him. In truth, much the larger number of those who constitute an Administration majority in Congress never expect, or even hope for higher office, and among them are to be always found the most faithful of the faithful. For it is a fact, standing broadly out, in disproof of all theorizing, as to the excess of Presidential patronage, that for every de- sertion which can be named out of that larger body who never look for any of the higher offices, five or more can be named from the less numerous class, who have pretensions to those offices and do look for them. Nor should tliis be at all won- dered at, for the more numerous and humbler class receive no personal slight from the Executive, and have nothing of that sort to revenge ; whereas, if things were narrowly looked into, that cause alone would be found to produce more desertions than all others. The Governors of the different States have generally pretty much the same patronage, on a smaller scale, that the Presi- dent has; yet, with the exception of the two large States, where the patronage is sufficient to induce the, formation of parties for obtaining it, we hear of no complaint whatever of Executive encroachment upon legislative power. The com- plaint is all the other way. The Legislatures are perpetually encroaching upon the Executives; and it is generally found in practice that the Governors have too little, rather than too much, influence with the Legislatures. Take the case of the younger Adams. He enjoyed the same patronage as General Jackson and Mr. Yan Buren, and it would be paying him a most ridiculously extravagant compliment not to suppose him equally inclined to use it ; yet he had neither power nor influence over Congress. His only influence was to procure the defeat of everything that the opposition suj^posed he desired. The reason of this was that he had not been elected by a party, and he could not combine a party organization strong enough to sustain him. The moment he was elected LETTERS ON THE PRESIDENCY. 461 lie was found to be in a minority in both Houses. Hence the rapidity ^vith which a predominant party was formed against him, and the facility with wliich he was turned out. N'ot to prolong the discussion unnecessarily by any further illustrations, it may be closed here with assuming the just inference to be, what everything tends to prove, that all the exorbitant powers of the President, so heavily complained of, are purely and solely the result of the mode of his election. This conceded, the other inference necessarily follows, that the only way to get rid of this excess of power is to get rid of the mode of his election. So far as I recollect, Mr. Clay is the only prominent man of your party who has indicated any specific remedies for this excess of power. They are to be found in his Hanover speech, and in the programme there laid down of the duties of Con- gress under the coming Administration of General Harrison.* He says, the great constitutional machine "has been so jarred and jolted, that it needs careful examination and thorough repair ; " that the first and greatest of those duties will be " the circumscribing of Executive power, and throwing round it such safeguards and limitations as will no longer render it dangerous to public liberty." To this end he proposes : First, to reduce the Presidential otfice to a single term ; second, to reduce his veto power ; third, to restrict the power of dismission from ofiice by bringing it under responsibility; fourth, to put the Treasury more exclusively under the control of Congress ; fifth, to prohibit the appointment of members of Congi-ess to any but a few specified ofi&ces. The two first of these amendments are such as the scheme I shall suggest will also require ; and I am glad, therefore, to find that I shall have the high authority of his opinion in favor of that much of it. But I am at a loss to appreciate the ten- dency they will have, under the present system, to reduce Execu- tive power in the manner he desires. An ineligible despot of four years' duration is no more proper or like what our Gov- ernment was intended to be, than a despot that is re-eligible. The power is in the ofiice, and it is just as plenary for four years' duration as if it were for eight. Unless the powers of the office are decreased, instead of making the contests for it 462 LETTERS ON THE PRESIDENCY. more frequent, true policy requires that tliey should be made less so ; and, if it is reduced to one term, that term should be extended to ten or fifteen years. It is the excess of the power of the office against which all complaint is made ; and that excess is what Mr. Clay himself seems to desire to curtail. I do not perceive how the reducing it to one term can have any effect toward doing it. It may serve in some degree to take from an incumbent one inducement for the abuse of power, and to that extent has merit ; but it in no degree tends to curtail his power. Such is not the theory of our Government. It trusts absolute power to no one man, for no length of time, and for no purpose. It nowhere acts upon the unwise principle of trusting to the absence of motive in an officer to do wrong. It everywhere goes on the contrary principle — of supposing he may and will do wrong, and therefore of keeping him under Testraint. The whole result to be attained by such an amend- ment is so very small, even when viewed as an operation upon human motives, that it is intrinsically worth but little. It is in vain to take away the motive of personal self-interest, while you leave the bad passions of party spirit, envy, personal and political hate and affection, to influence an incumbent to use his power to secure the election of a successor, of his own party, and even of his own selection from that party. Do you suppose that General Jackson felt any less solicitude for the first election of Mr. Yan Buren than he had done for his own re-election ? The reduction of the veto power may be proper under any system, but it is believed to be among the least pernicious of his excessive powers. It is only negative, and its only effect is to leave things as they were for the balance of the President's term. Its worst mode of exercise can threaten neither liberty nor permanent national interests. The responsibility Mr. Clay seems to desire to have the removing power brought under, is barely requiring the Presi- dent to report removals to the Senate, together with his reasons for making them. I entertain no doubt that the power to require this to be done already exists in Congress, and that a pertina- cious refusal, on the demand of either House, to give his reasons for removals, would be fair and legitimate ground for impeach- LETTERS ON THE PRESIDENCY. 463 ment. There is no amendment of the Constitution needed to eiFect that object. But, when attained by an act of Congress, I do not see how it will materiall}- curtail the powers of the office. The supposed responsibility to which it would subject the exer- cise of the power is, in truth, no responsibility at all. Accord- ing to the opinion of Mr. Van Buren and Mr. Benton, as ex- pressed in the report of 1826, it is even worse or less than none at all. If, as they say (and you and Mr. Clay no doubt concur in the opinion), the power of the President subdues the capacity of resistance on the part of the Senate, and enables him to rule as easily and more securely with than without the nominal check of the Senate, — then, also, he would, with equal ease and more security, exercise the power of removal after it was referred to that body to control its exercise. Public opinion does our Senators great injustice, if they are not about the most hungry of the hungry office-seekers. They will be the most apt of all others to always do as they did with General Jackson, to urge upon every new President the removal of incumbents. Rea- sons for the act will be found " as plenty as blackberries," even when to be rendered upon compulsion. This serves but as another illustration of the great radical error of the present sys- tem of electing our Presidents. It communicates to them such excess of power, that all the other departments furnish not the means for the lodgment of adequate powers of check and control. That the Treasurer of the ITnited States should be elected by the House of Representatives, and not appointed by the President, seems to admit of little doubt. It is even requisite to the perfection of the whole theory of the Constitution. Such is the plan in Kentucky, and we find it to work well. But such an arrangement, though important in other respects, would abstract only a veiy trivial something from the power or patron- age of the President. His office could never be other than a comparatively very inferior one with a small salary. When banks are employed as fiscal agents, his duties would ho light and trivial ; and there could be no patronage attached to his office and abstracted from the President. If, among the specified offices which should be excepted from the prohibition against the appointment of members, Mr. Clay 464 LETTERS ON THE PRESIDENCY. intends to except, as he probably does, heads of departments and foreign ministers, the reduction of the power growing out of the President's patronage, produced by his amendment, would be but little. If he does not mean to except those higher offices, then his amendment is liable to very serious objection. The halls of Congress affi^rd the only school we have for the training of national statesmen. The reason should be great, and the end to be attained of the most indubitable success, before we consent to deprive ourselves of the benefits of such a school toward procuring competent men for filling those higher offices. If they are to be excepted, then the whole amendment had as well be let alone. It is principally by means of those offices that so much of the President's power, as results from patronage, is exerted over his party in Congress. Through them he influences, if he so influences at all, the leaders and more prominent members of the party. "With the humbler and larger mass, the gift of offices and lucra- tive jobs to relatives and friends is equally efficacious as their bestowal directly upon the members themselves. In fact, this is generally the most acceptable, as it is also the most accus- tomed mode of receiving pay for partisan services in Congress. But, with due deference, is not the whole scheme of these proposed amendments a too paltry tinkering with a mighty subject? The scheme totally overlooks the fact, which is also over- looked by the complainers against the President's power of patronage, that the great adhesive principle in our national parties, so far as it depends upon the lust for obtaining and retaining office, lies not the tenth part of it in the patronage of the President, but in those multitudinous State, city, town, county offices and jobs, which, equally with those in his gift, constitute the whole trading capital of the party, or, if you will, the spoils to be retained, or the spoils to be lost, in the contests between our great national parties. Here it is that lie the deep and broad foundations of the power of national parties, so far as they rest on pecuniary interests. From this great spring-head, or rather from these ten thousand spring- heads, flows the great stream of Presidential power, if indeed it do flow from patronage. These are the sources of power LETTERS ON THE PRESIDENCY. 465 that jou must choke up, or divert so as to prevent their flow- ing in to swell the other powers of the President, before you can do anything effective toward curtailing his power. Upon a more considerate review of the whole subject, I have no doubt that both you and Mr. Clay will readily admit that these proj)osed amendments of his are totally inadequate to the object in view; and that, with his " long, broad, sharp knife of reform," he can display much more skilful surgery upon the Constitution than this. You both stand pledged, and have pledged your triumphant party to it, that something shall be done under the new Administration to redeem the country from a Presidential despotism. Let that something be worthy of the great subject, worthy of yourselves, and worthy of the recent most flattering manifestation of popular trust and con- fidence. I shall endeavor hereafter to show that this evil of the ex- cess of Presidential power, great as it is, is only among the least of the evils attendant upon the present mode of electing our Presidents. No. VI. The great, perhaps the greatest, evil attendant upon our sys- tem of electing Presidents, is its corrupting influence on the whole body of the people. "We are an office-loving, an office-seeking people. The pas- sion may not be peculiar to us, it may be common to every other people ; but we certainly have it in a high degree. Let us attend to the extensive means of our corruption through this one passion alone. Look at the host of offices and public employments properly belonging to the Federal Government ; and recollect that each of them is sufficient to sustain the hopes and excite the active exertions of at least fifty men, whilst they actually serve to stimulate the exertions of incumbents with as many more of the friends and relatives of each of them, to keep the expectants out. But this is not the tithe of this means of corruption, or of this sort of stimulant to party strife and political cabals. It is a law of such strifes that two dis- tinct motives to political excitement cannot well operate upon the bod}' of the people at one and the same time. The greater 59 466 LETTERS ON THE PRESIDENCY. always swallows up and hides tlie less. When the nation is once thoroughly roused to a Presidential contest, all other questions fade into comparative insignificance. State parties and politics cease to exist, almost in name. We once had in Kentucky, during an interval of Presidential contests, as fierce a party warfare as ever was waged, between what at first were termed Eelief and Anti-Eelief, and afterward the Old-Court and New-Court parties. Every man in the State was of the one or the other of those parties ; and, after the contest had heen carried on long enough to make them as inveterate toward each other as two parties could well be, the final contest be- tween General Jackson and Mr. Adams ensued, and they were both immediately absorbed in the great national parties that rose out of that contest, and have never since been heard of. The New-Court party, almost to a man, was wheeled by its leaders into the ranks of Jackson, and, of course, with nearly equal unanimity, the Old-Court party was wheeled by its leaders into the ranks of Adams ; and there the mass of both have ever since remained, taking the bias of their national politics, for the last twelve years, from the accident of their being so arranged by the personal predilections of the leaders under whom they had waged the war about State politics. With us, as everywhere else throughout the Union, from that time to this, the qualifications and fitness of applicants for seats in the State Legislature, the two Houses of Congress, the Gu- bernatorial chairs, seats on the bench, and for every other State office, down to the lowest, has been and is everywhere tested by the one universal standard of the applicant's predilections for the aspirants to the Presidency. City, town, county, and corporation ofiices and employments are all bestowed in the same way. This incalculable number of ofiices and employments, with those properly belonging to the National Government, consti- tute together, in mass, the estate in possession or expectancy of one or the other of the great Presidential parties, affording the exhaustless means and inducement to political excitement and corruption. When properly considered, and minutely looked into, what an awful, what an appalling mass of means they are ! Did any country ever possess them to the same LETTERS ON THE PRESIDENCY. 467 extent ? Wliat people does or ever did possess the virtue to withstand tlicni ? What was the boasted system of espionage of Bonaparte, what were his million of armed police worth, for sustaining a military despotism, in comparison to all this well-trained, universally disseminated corps of office-holders, for sustaining the despotism of party ? Consider this, sir, as it deserves, and you need never again feel the wonder ex- pressed in your speech at Richmond, that in a free elective Republic like ours it should cost so much excitement, such a mighty efibrt on the part of the nation to change its rulers, even when a large majority desires to do so. With short intervals of calm, this universal degrading scramble after office must keep the public mind under per- petual excitement, until everything valuable in our institutions is lost sight of or wilfully trampled in the dust. "We have already passed from the dirty arts of low electioneering to open bribery; the American voter already shamelessly avows the sale of his vote ; and the American citizen already shame- lessly avows the purchase of votes. You have recently heard the great outcry at the detection of certain fraudulent prac- tices upon the elections in New York and Philadelphia. We in the west wonder much at that outcry, and ask whether it can be serious. Whether those who got it up against each other w^ere not all the time laughing in each other's faces. We wonder whether it can be possible that we have so far got the start of our eastern brethren in corruption. Why, sir, those very practices are in notorious habitual use among ns, and have been so for years back, until, at last, in alleged self- defence, men of the first standing among us for intelligence, property, and character, have become openly engaged in them, — men, too, who are no seekers of office, want no office, are almost above office, and who are thus stimulated to defiling the institutions of their country by no other motive than that of party spirit. We need not look forward to what may ensue hereafter. I tell you, sir, the public morals on this subject are already gone, utterly gone; and gone without the hope of redemption or resurrection, unless the baleful spirit of partyism can be speedily quelled among us. What you say is literally true, — the received creed of the day is, that everything is fair 468 LETTERS ON THE PRESIDENCY. in politics. "Witness not only the open undisguised buying and selling of votes, the notorious colonizing of illegal voters by the hundred, the suppression of poll-books and returns, but even the fabrication of the records of our courts of jus- tice. Much of the debasement of public morals, as exhibited in election frauds, may be traced to the action of Congress and other representative bodies. The prices paid to obtain seats in the House of Representatives have been at the bottom of much of it ; the example set there has been the occasion of as much more. Take the contested election cases before that House, from that of Letcher and Moore down to the New Jersey case of last winter, all disposed of, incidental questions and all, by a strict party vote, and to the general mind the grossest fraud and misconduct of election officers upheld by the unanimous vote, first of the one and then of the other of the parties there. Yet, in all such cases, the members are pre- sumed to act in the cUaracter and ought to act with the im- partiality of judges. The mention of the case of Letcher and Moore reminds of an incident which then took place, as credibly related to me, that exemplifies something of the force of party drill and discipline. A member, of matured years, great personal popu- larity, and high standing and influence with his party, felt so much solicitude for Letcher's success, from his conviction of the superior justice of his claim to the seat, that he sat at the clerk's table anxiously noting the vote as it progressed, and ever and anon, as it seemed to preponderate in Letcher's favor, he audibly exclaimed, " thank God, justice vnW be done ; " yet he himself voted against Letcher. Orders had gone forth to the party that Moore must be sustained, and the member dare not disobey, though his conscience and his personal inclina- tions prompted him so strongly to it. Even though the story be not true, yet, coming from the source it does, it serves to show the opinions members entertain of the political integrity of each other. Take the case of the Maryland electors of the Senate, per- petrating an open act of treason against the institutions of their State for a party advantage, and censured or blamed, through- LETTERS ON THE PRESIDENCY. 469 out the country, just as the censor or approver happened to he or not to he of the politics of those who committed the treason. Take the case of the Pennsylvania Legislature, so far coun- tenancing a most infamous fraud as to warrant the suspicion that, hut for the intervention of a lawless and treasonable mob, they would have availed themselves of the fraud to en- gross the patronage of the Legislature in favor of their party. Was not the conduct of the two parties on that occasion, as it was also in the I^ew Jersey case of last session, tantamount to saying to each other, we know you to he so unprincipled that we cannot trust you temporarily with power, because you will hold it permanently, right or wrong, to promote a party advan- tage. If such be their opinions of each other, what are the people to think? With such examples before us as the results of party excesses among the high officials of the land, there is no need for wonder at the rapid spread of election frauds among the people. You are aware of the high claims of Mr. Butler, the late Attorney-general of the United States, to intelligence, infor- mation, and integrity of character. It has so happened that this distinguished gentleman has recently been placed in a situation requiring him, as he supposed, to express his i)pinion as to the probable result of these election frauds, under all the solemnities and sanctions of an oath. He thus gives that opinion : " If the frauds in elections, which of late years have become so common, are not detected and stopped, our system of Government will be overthrown, and the morals and liber- ties of the people destroyed." This sort of language, together with this sort of evil foreboding, in which so many eminent men concur, is echoed in the language and sympathized by the feelings of nearly all men of intelligence and matured judgment throughout the country. The language is daily becoming more common to every lip, and the feeling more familiar to every breast. The wide dissemination of such opinions and feelings can be owing to no trivial cause. Has it not become high time for our more distinguished statesmen to set about searching for and applying some radical remedy, 470 LETTERS ON TUE PRESIDENCY. to endeavor, at least, to remove tlie great stimulants to all these frauds ? Mr. Butler is too well informed not to know that history affords no warrant for believing that the march of popular corruption ever subsides or recedes of itself; that frauds in elections are never a diminishing but always an increasing evil in republics. He is too much of a practical lawyer and man of the world not to know that frauds on elections, during; high party times, are of that class of offences which are not under the correction, but above the control of the law. They have proved themselves to be so for the last century and a half in England, as they have thus far uniformly done in our own country. So long as the criminal law is administered through the intervention of grand and petit jurors, this must forever continue to be the case. They are like other men, and fully imbued with the passions and party prejudices of all their neighbors. The passions and prejudices that make them uphold and countenance election frauds, as citizens, will make them wink at or refuse to punish them, as jurors. They have, besides, a reason of plausible justice for refusing to punish such offences. The number of offenders are known to be so great, that it can rarely happen that those prosecuted are not so few, in comparison to the whole, that their punishment will not wear the aspect of persecution and partiality. Besides, the jurors of the political party of the accused can never know that other jurors will be impartial, and enforce the law against delinquents of the opposite party. Experience has already proved here, as it did long ago in England, that it is in vain to pile statute upon statute, or penalty upon penalty, for the punishment of election frauds. Light penalties are scoffed at, and heavier ones can never be enforced. The heavier they are the less chance there is of enforcing them. The attempts to do so serve but to degrade the law, by exposing its impotency. As long as public sentiment remains vitiated or deadened on the subject, the crime must remain "unwhipped of justice." The contest for a seat in our State Legislature has already been known to cost the candidates and their friends seven or eight thousand, dollars. In many parts of the Union, that would be a moderate outlay upon a warmly contested seat in LETTERS ON THE PRESIDENCY. 471 Congress. An election for a scat in Parliament for tlic city of Liverpool is known to have cost the enormous sum of eighty thousand pounds sterling. The recent election in the city of 'New York has probahly cost little less. The late Presidential election is estimated to have cost the two parties, in money, loss of time, and otherwise, many millions of dollars. The great convention at Baltimore, alone, is computed to have cost near a million. How are we to escape that heavy calamity, which, in Mr Butler's opinion, threatens to overtake us so certainly and so speedily? How is it to be done, but by removing the great leading cause of the debasement of public morals ? How can public sentiment be purified and restored to a proper tone, but by taking away the great cause of all these popular excitements, and removing the great stimulant to these ever-recurring and corrupting party contests ? If the corruption among the people and among the officers who conduct and decide upon elections be such as we now see, each new example furnishing a prece- dent for a new excess, w^hat must it all come to before the recur- rence of many more contests for the Presidency? "With the ever-increasing stimulants to increased excitements and excess, when we shall have doubled our present population, it will be impossible for our frame of Government to withstand the tre- mendous concussions that will be produced by the death-strug- gles between the outs and the ins. A fraud practiced on a Presidential election, like that of the New Jersey case, or that of Pennsylvania, giving the chair to one candidate by the forms of law, whilst the other had received a majority of the votes, . would, if happening even in our own time, at once drive the nation to disunion or civil war. "Whenever such a crisis arrives, whenever such a calamity shall impend the nation, little calculation can be made, little hope based on a generally diifused love of country. These party strifes have already gone far to debase our patriotism from what it once was, a pure feeling of the heart, to what it is now, or is fast becoming, a mere principle of calculated self- interest. The inevitable tendency of all party administration being to corrupt, and that of all party strifes to degrade the Government, they must soon deprive it of that reverence and 472 LETTERS ON THE PRESIDENCY. esteem, which are indispensahle to a perfect affection. The lean ideal which every young American forms, before entering upon life, of the government of his country is, that, disregard- ing birth or fortune, it holds its offices and its honors as the brilliant incentive to a noble emulation in her sons, and as the impartially distributed rewards of virtue and of talent. This idea he forms from studying its theory in the Constitution. It is for this he loves and adores his country as the exemplar of the world. He considers it worthy of his utmost devotion, and pays it with all the enthusiasm of a young heart. As he ad- vances in life, as he comes to know who they are that have obtained those offices and honors, but, above all, when he learns the means by which they have been obtained, — that they are no longer the rewards of virtue, talent, and eminent public service, distributed by an impartial country to her deserving sons, — that they have become the property of political factions and are dealt forth as the rewards of party zeal and fidelity, his feelings recoil upon him, with a loathing and disgust, pro- portioned to the extent of his delusion and disappointment. Now that he sees things as they are, that he beholds them in their nakedness, by what incentive does his country urge him to fit himself for her service ? She bids him bustle in the ranks of faction, to learn those arts of low intrigue and electioneer- ing by which alone he can ascend the ladder to party elevation. She bids him to assist in degrading and defiling her institu- tions, that he may participate in her most elevated employments. The youth of unpracticed heart, of noble impulse and generous feeling, recoils from the proposition as he would from contact with pollution. Yet such as he are her only hope, her only trust in that hour of her need, when self must be nothing and country everything. We cannot cease to deplore, but let us cease to wonder at the decay of true feeling for country among us. Let us also cease to wonder how and why it is, that certain descriptions of men obtain the highest and most important employments under Government. It is such as they who are ever in the van of party. It is they of the pack, who are ever in at the death, and howling for their pay. One not among the least of the evils resulting as a natural consequence from the perpetual recurrence of the excitations LETTERS ON THE PRESIDENCY. 473 of tliese Presidential contests, is the moral abasement of that great lever of our liberties, the public press. Every one is sufficiently aware of tlie mighty influence wliich the press has upon the actions, the opinions, and the morals of the people. The editorial corps of a free State are its political sentinels. Eeporting truly the watches of the night, they should never give false alarms. Supervising for the people the acts of pub- lic servants, they should never accuse falsely, nor commend unworthily; faithful in the detection of all abuses of power, they should never cloak them from public view, nor screen them from popular censure; the advocates of principles and not the adherents of men, standing in the attitude of public cen- sors, they should, if practicable, maintain an attitude of strict impartiality and strict neutrality between great political rivals and great political parties in power. None but such as these, if they were to be had, would be truly deserving the support of a free people. Yet of the thousands now published in the United States, there is probably not one paper for which even its own editor would claim that it is strictly impartial on politi- cal subjects. Nor is this the fault of the editors. They, like most of us in this country, have to live by their calling. No press is now sustained for its impartiality and ability. The press depends upon its patrons. The present vitiated state of the public taste admits of no neutrality, no apparent lukewarm- ness. The food that is dished for it must be highly seasoned, deeply flavored. The editor must administer to the public appetite as he finds it. The mangling of the public and pri- vate character of political men, the debasing of the motives of action of the loftiest and purest to a level with the meanest, the fomenting of party rage and party hate, these are the dishes that are devoured with most avidity. At this day no politician (and we are all politicians) cares for the boldness, frankness, or integrity of an individual editor. He buys a paper because it is an agent of his party, to promote or to preserve its eleva- tion. Whenever an editor undertakes to think for himself, or differently from party dictation, the party ceases to sustain him. The editors do but imitate our leading politicians, who themselves imitate the lawj-ers. They handle all political questions like feed advocates, and consider themselves as 60 474 LETTERS ON THE PRESIDENCY. standing in that attitude before the country; and, as such, feel justified in making the most of the cause in which they are enlisted, good or bad. All this is most pernicious, when we consider tiie immense influence they exercise over public oj)in- ion and public morals. Though a politically "debased public press is rather the consequence than the cause of a vitiated state of public morals, yet such is the influence of the press in augmenting such a state of morals that nothing is better de- serving an anxious care than the preserving it pure, independ- ent, and respectable, and the removing from our institutions everything that bears upon it with a contrary tendency. So long as all the oflices and power of the Government are held forth as the incentives to a venal scramble for the Presi- dency, so long will the agency of a party press be required and had. If there were no other motive for changing the mode of electing our Presidents, that of removing so great an incentive to the demoralization of the press would, with the considerate, be amply suflicient to require the change. The evils to a re- public from a merely party press are infinite. Every man's own reflections must satisfy him of the importance of this topic. One of the more obvious and important of those evils will be suggested as a specimen of the rest. The great benefit derivable by a free people from a free press is the dissemina- tion of political light and correct information as to the con- duct of public servants. This duty will be habitually and faithfully performed by the press, so long as it remains inde- pendent. But so soon as it loses its independence, by be- coming allied to one or the other great political factions, instead of aiding, it greatly obstructs, if it does not totally prevent the dissemination of pure light and information. After the political parties have once been formed, and the great body of the people made to take sides, those who em- brace within their class almost everything we have of well- meaning, disinterested devotion to country, those to whom it is most importaat that light and information should be car- ried, and upon whom alone it is calculated to produce an eflfect, from inclination or other causes, read no papers but those of the party to which they are allied. The consequence is an obvious one. They receive no light or information, except LETTERS OX THE PRESIDENCY. 475 tliroug'h that distorted and distorting medium. If a few scat- tered rays should chance to he forced upon them through a paper of the opposing party, they have been so long taught to loathe and distrust everything emanating from that source, and their means of obtaining accurate information for themselves is so inadequate, that they content themselves with disbeliev- ing what comes from so distrusted a quarter. They have, in short, about the same opportunitj- of comiug to correct conclu- sions upon politics, as a jury would who were allowed to hear the witnesses and lawyers of only one side of a cause. Such is the vitiating effect of partyism upon everything it touches. Thus rendering the press, naturally so well adapted to con- ferring these necessary benefits, the most effectual means of producing their deadly opposites. It was my purpose^ in another number, to have gone very fully into a development of the pernicious effects produced by the unceasing scramble for the Presidency upon the legislation, not merely of Congress, but of the different State Legislatures, and then to have exposed that most odious feature of the pres- ent system, which enables every party President to appoint his own successor. But the discussion has swelled so far be- yond my original anticipation, and I am so apprehensive of wearying public indulgence and patience, that I must leave those, together with other topics of minor importance, to the abler animadversion of coadjutors that I cannot but hope to find in different quarters of the Union. They, perhaps, may be able to overcome the difliculty of so handling those topics, as to do full justice to them without offence to the party feel- ings and prejudices of the day. That, I confess, is beyond my skill ; and I have, on that account, the more readily determined to avoid those topics, and leave them undiscussed, though, in my opinion, presenting some of the most serious evils of the present system of electing Presidents. No. vn. "And they gave forth their lots, and the lot fell on Matthias, and he was numbered with the eleven apostles." There is a commendable disinclination to any substantial in- novation upon the structure of our National Government. The 476 LETTERS OX THE PRESIDENCY. transcendent wisdom of those wlio framed it requires that we should confide much to the imputed perfection of their work, and distrust our ahility to improve it. But it was no part of that wisdom to suppose it perfect. It not merely admits the possibility of its containing imperfections, and concedes the power of correcting them when ascertained, but renders it a duty to the Constitution itself to correct such parts as prove in practice not to work according to the theory upon which the whole was built. It is no disjointed, disconnected batch of abstract dogmas, but an admirable piece of political mechan- ism, — its several parts being intended to aid, sustain, and de- pend on each other. Its own preservation requires that it should continue to act on the principles upon which it was set in motion. Whenever, in practice, one part proves destructive of another, it is subversive of the principles upon which the whole was framed, and needs amending for the very purpose of preserving those principles. Whenever, after sufficient ex- periment, it is found that any part does not work according to the theory of the whole ; if it obtains, in an essential degree, more or less power than was intended for it ; if it loses that support, or casts itself free from those checks that were in- tended for it ; or if it is productive of, or even accompanied by, those evils it was intended to obviate and guard against, we may be morally certain that such part is not merely an imper- fection, but sooner or later must become the cause of destruc- tion to other parts. When such discovery is made, the plainest dictates of prudence suggest the propriety and necessity of amendment. We may not, at a single efibrt, be successful in achieving the desired perfection ; but each efifort will approach us nearer to it, until finally attained. Not to make the effort is to be recreant to that trust which the Constitution confides to each succeeding generation, and the exercise of which, with prudent, cautious discretion, will, in all time to come, be ne- cessary to preserve the Government in healthful action. To suppose the people incapable of detecting such an evil, or lacking virtue to correct it, is to suppose them incapable of self-government, and to belie the noblest truth inculcated by our institutions. The previous numbers have been written in vain, if every LETTERS ON THE PRESIDENCY. 477 reader is not satisfied that the mode of choosiiifr our Presidents not only does not work in practice, according to the anticipa- tions of the framers of the G-overnment, but is so productive of the very evils intended to he guarded against, as to threaten, if not ultimate destruction to the whole Government, at least that of nearly all the benefits derivable from its other parts. It stands as a concession, taken from the admissions of all the prominent statesmen of all parties, that the Executive depai-t- ment has not merely acquired vastly more power than was in- tended, but has cast itself free from all check and control. The time, then, for amending and remodeling that department must have arrived, in order to preserve the Constitution itself; and this is the great duty which the present generation owes toward that sacred instrument. This, sir, is emphatically the great duty which the guiding intelligence of the day owe to their own reputations, to their o^vn generation, and to all posterity. It will be in vain that we shall seek palliatives and correc- tives of the evils flowing from Presidential elections, by amending the mode of election. Most of those evils are necessarily inherent in every mode of election. The only alternative is to abolish the election altogether. We must provide Presidents for the country by some method, which, if it partake of the character of an election at all, must be in so remote a degree, as to cause no apprehension of generating, to any great extent, those ills that are the natural attendants upon all elections, whether legislative or popular. This result can be attained, and is only to be attained, by making the choice depend mainly upon lot. The plan I have to propose is a mere modification of that suggested many years ago by a distinguished Senator from Connecticut, on^the eve of his retirement from public life, as a legacy of advice to his countiy. It is, in substance, this : To form an Electoral College, by Electors chosen by the people of the different States, in this ratio : those having a population less than five hundred thousand to elect one ; those with that population, but less than two millions, to elect two ; those over two, and with less than four millions, to elect three ; and those ■v\ntli over four millions to elect four Electors. From the Col- 478 LETTERS ON THE PRESIDENCY. lege so formed, to select any proper number, say seven, by lot, and from those seven the other Electors to choose the Presi- dent immediately without adjournment or debate, by viva voce vote ; dropping the hindmost at each ballot, until one has a majority, or until a tie is produced, and, in that event, giving the power of choosing from those having an equality of votes to the Speaker of the House of Representatives, or to the Chief Justice, or some other officer of the Government. The Vice- President to be then chosen in the same manner. Both to hold their offices for four years. The veto power to be so reduced, that the repassage of a bill, by a majority of all the members elected to both Houses, shall overrule the President's veto. The holding of any other office to be no disqualification for the office of Elector, and requiring each Elector to be a citizen of the State electing him. The Electors to be allowed no pecuniary compensation but such as would barely cover their travelling expenses. It will be readily perceived that the main idea, upon which this scheme is based, is to have it so arranged, that, by no pos- sibility, the Presidential chair can ever become the subject of party contests. It is not presumed that this is the only mode in which that object can be properly attained; but it is pre- sented as one by which it can be successully accomplished, and as a specimen of the simplicity and facility with which it can be done, without violating any cardinal princi23le of repub- lican government, or disturbing that great compromise of con- flicting interests, which is the foundation of the Federal Con- stitution. If it be not the best plan, its discussion and con- sideration will serve, at least, to elicit the suggestion of that best plan. By this mode a Chief Magistrate could be safely provided for the nation, without heat, turmoil, or strife of any kind. Those political national cabals which have for their object the eleva- ting particulai' men, and obtaining the offices and power of the Government, which have so long distracted the country, would at once cease, and could never be revived. Federal politics would no longer mingle \\dth, or at least they would not control, the aftairs of the State Governments. The legis- lation of Congress and the State Legislatures would cease to LETTERS ON THE PRESIDENCY. 479 be contaminated and controlled by the corrupting leaven of that vile party spirit growing out of contested Presidential elections. Our Congressional and Legislative halls would no longer be filled by men having, for their greatest merit, their adherence to political aspirants. Our elections would no longer be polluted by bought or illegal votes, nor by the acts of fraudu- lent officers. The President would no longer possess uncon- trollable power above the Constitution; but he would be brought under control, and be subjected to an effective responsibility to the Representatives of the people, their mutual party ties being severed, or they being no longer bound to support him, in order to sustain themselves. In fine, we should be giving the Constitution fair play, to solve, by fair experiment, whether we are competent to self-government or not. Every motive for the creation, and every principle of adhe- sion for a party based on mere personal selfish considerations, would be taken away, and none such could exist. Parties, no doubt, there still would be, but not of that tendency to the debasement of public morals, which all parties have that are formed for individual elevation and aggrandizement. The only great national division, most probably, would be, into those who endeavor to enlarge, and those who endeavor to curtail the powers of the General Government. Such par- ties are healthful in their operation, and should always exist. Their tendency is to results which lie at a medium between the extremes of both. Political strifes about abstract principles, or mere questions of policy in legislation, are not calculated to produce that dangerous effervescence of popular excitement, which is the never-failing accompaniment of scrambles for office, through the means of popular elections. The most im- portant popular elections would be those for State Governors and Presidential Electors. The excitements produced by these would be local in their effects, and the influence of the ISTational Government would cause them to effervesce harmlessly. J£ the larger States, where the patronage is worth contending for, should adopt a similar plan for providing themselves with Governors, then the main spring to party excesses would be taken away throughout the land. A President coming into office by this mode, would do so 480 LETTERS ON THE PRESIDENCY. untrammelled by pledges, to men or as to measures, and free to exercise the dictates of his own judgment. He would have nobody to pay for his elevation. The public purse would not be squandered, nor the public offices degraded by paying off his political party debts. He would have few or no political or personal partisans, and, of course, would appoint few or none such to office. Eminent talent and true virtue would stand upon their just pretensions, in competition for the higher offices and employments within the gift of the Executive. He would have no inducement to remove a good officer, merely because he was appointed by his predecessor. There would, in fact, be no motive for putting a man in or out of office, merely for the sake of his political tenets. The only ambition or desire a President so chosen could have, would be that the affiiirs of Government, during his term, should be well admin- istered. He would be naturally indisposed to disturb a worthy incumbent, for fear the public service might suffer by the change. It is needless farther to enumerate the benefits that would ensue from this mode of electing a President ; they will readily occur to every reflecting mind, and it would be but to recapitu- late the evils of the present plan which this mode would avoid, and most of which have been dwelt upon already. It will be more profitable to anticipate and answer some of the objections that may be urged against such a mode. Among; the first that will suggest itself to most men of in- telligence, is the difficulty of getting the most competent head to the Government. It has already been sufficiently remarked upon, how little the present plan is calculated to ensure us that. It is believed the proposed plan is fully as well calcu- lated to insure the possession of adequate virtue and talent by our Presidents ; and, if the choice be made from those desig- nated by the lot, without the bias of party influence, is much better calculated to insure that object. The office of Elector will be sufficiently dignified and important to be sought by the first men of the respective States, whilst the remoteness of the chances in favor of any one man will prevent its serring as a lure to the unworthily ambitious. Men will lack the motive to seek the station of Elector, in despite of all fair claims and LETTERS ON THE PRESIDENCY. 481 pretensions to it. The States would be emulous of showing forth their very best men upon such an occasion, and of pre- senting to the nation such as would be best calculated to draw attention toward them, as qualified to fill the station, provided they came within the lot. It would rarely happen that a per- son would be elected as an Elector who did not possess fair character and respectable abilities. These are all that are re- quisite for a good President. If he be a man of transcendent ability, he directs and leads the whole Government. If of inferior capacity, the other functionaries control and lead him. It would be hazarding little to predict that the Electoral College would be all that the selected talents and distinguished virtue of the nation could make it. If it even approximated such a condition as that, it could not well be that the worst fortune of the worst chapter of accidents, under such a system, could give us a President less qualified for the office than a large majority of the crowned heads of Europe. The more ridi-culous caprices of blind fortune are sufficiently guarded against by the number which the lot would be required to present to the Electors for selection. It is impossible to believe but what some of the seven would possess pretensions, both as to cha- racter and capacity, far above an average of the Governors of our States. That average would be very sufficient. Our Gov- ernment, no more than that of other people, requires at all times, and indispensably, an Executive head of supereminent ability. If it does, it will require what it will seldom have. Each country grows such a man about once in a century. After the attainment of a certain not very elevated point of mental cultivation, the actual difference between men is much less than is commonly supposed. The gairish talents that produce the admired and popular hero or orator are not always accom- panied by those qualities best suited for the cabinet and helm of State. The man of genius is always a bold and restless innovator in science and government. The mediocre man is content to let very well alone. Of the two, he is generally the safer, and therefore better, head of a republic. The one is ever ambitious of signalizing his career by something grand and new ; the other is content to move smoothly on in the beaten path. 61 482 LETTEES ON THE PRESIDENCY. By law, or immemorial custom, the senior alderman of Lon- don is always made mayor of that city, and the plan works well enough ; at least, no complaints have been heard of the city suifering on account of the incompetency of any of its mayors. The reason given for the law or custom is, that the evil of com- petition for the office is worse than that of the worst mayor that can come. For the same reason, Virginia and Kentucky give the sheriffiilty to the oldest magistrate of the county, and no other States are, in general, provided with better sheriffs. The people of Kentucky, after eight or nine years' trial of the evils attending the election of sheriffs, went back, almost unanimously, to the old plan. And so may we also say of the Presidency, that the evils of competition for the office are worse than the worst President that can possibly come, under the proposed plan. The game that is played for the Presidency is, no doubt, a very pleasant game to those who play it and get all the- profit ; but it is a poor game for the nation, that pays all the expense and gets worse than no share of the gains. It may be very intoxicating to the vanity of the players, to have us all at loggerheads and throttling each other, whilst we are deter- mining which of them is the greatest man or best deserving our confidence. It may even be a very amusing game to cer- tain minor participators in the play, who love the excitement, and make their own smaller profits out of the sport. To the nation at large it affords neither amusement nor profit, and the expense is beyond endurance. If the opposition of the players to the proposed change can be bought off in no other way, the nation can well afford to postpone its taking eftect for ten or fifteen years, and thus afford the present batch of players am- ple opportunity to play out their game. For one, however, I am not for buying off that opposition at any such price ; but vote for blocking the game at once and forever. Another objection that may be suggested to the proposed change is, that from the mode of choice, a person might be selected whose views of policy would be different from those of a majority of the nation, and he might thwart a settled policy during his whole term. If he honestly discharge his duty, he will never allow his own individual opinion to weigh against and overrule the settled -will of a decided majority of LETTERS ON THE PRESIDENCY. 483 the nation. Bat a more satisfactory answer to tlic oLjcetion is, that, with the proposed reduction of tlie veto power, he will not be able so to obstruct the national will. It may also be objected, that, as the proposed plan takes from ambition a sure and legal path to the highest office in the country, it will force another for itself through a breach in the Constitution. This is an idle fear. This country has nothing to fear from an usurper, until the body of its people shall have become thoroughly corrupted by party excitements and broils. When that takes place, he will rise up under any system. So far from its being a defect, it is deemed a chief excellence of the proposed plan, that it will set this barrier to the efforts of ambition ; that it so places the Executive office that it cannot certainly be attained through any amount of individual or party effort; and that ambition may exhaust all its energies, and corruption expend all its stores, without any certainty of success. Another objection, though in truth none at all to the in- trinsic propriety of some such change, is deemed worthy of notice, from the flict of its being the onl}' objection that has ever been urged by any of the many individuals to whom it has been suggested; that is, that the people will not assent to the change. It is singular that, in a Government like ours, such an idea should be seriously insisted on, by men of every grade, from the highest to the lowest, who will, at tlie same time, unqualifiedly assent to the importance and fitness of the proposed change. It is unfortunately owing to the habitual distrust which man feels toward his fellow men, and the dis- semination of that daily increasing distrust of popular virtue and intelligence, which is one among the eftects, if it may not be called an evil, of the present system. It would seem to be time enough to pass such sweeping censure upon the peoj^le, when the proposition shall have been presented to us and re- jected. jSTothing can be more delusive than that self-esteem, which, ascribing all virtue and intelligence to ourselves, allows none, or but comparativelj' little, to our neighl)ors, "We have in the mass of our society, or in that part of it which guides and controls the balance, in every quarter of the Union, a fund of substantial common sense, adequate to the perception of any 484 LETTERS ON THE PRESIDENCY. evil in the Government, and tlie judging upon tlie fitness of any proposed corrective, accompanied, too, witli a single- heartedness and purity of purpose unknown to most of those of the higher order, who are willing to appropriate to them- selves all the virtue and intelligence of the land. The same reasons that would induce me and others like me, of the general mass, to surrender that modicum of influence, which severally belongs to our individual votes in making a Presi- dent, would cause all others to surrender theirs also for the good of the country, even if there were any such surrender required. But, in fact, there is none such required, unless perhaps it be from the citizens of the four large States. It can be demonstrated that the weight of each man's vote in all the other States will be increased by the change. The true difficulty lies not there. It is not in our actual want of the requisite virtue and intelligence, but in the lack of confidence in us, on the part of our Eepresentatives. They are afraid to peril their personal popularity so far, upon a measure that has not undergone the test of popular favor, as to propose it for our adoption. This apprehension, and the objection which is its offspring, when looked into, is based upon a false deduction from its own premises. The idea is, that we will not agree to the change, because every one is supposed to act exclusively from a narrow self-interest, and no man will therefore surrender his share, however small, of influence in the Government. The whole hypothesis is based upon the supposition, that we have the intelligence to see our own self-interest so far as to know what is or is not an increase or diminution of the power we reserve from or retain over our public servants. This conceded, the whole objection evapor- ates at once. For, as with the exception of the voters of the four large States, the individual influence of each man's vote would be enhanced, instead of being diminished, we ought to be presumed to desire the change for the purpose of increasing our power. On the score of interest, it is to the patriotism and good sense of the people of the four large States, alone, that any appeal need be made. The imputed selfishness of the rest, should make them more than willing to the proposed change. Nor would the call upon the patriotism of the people LETTERS ON THE PRESIDENCY. 485 of the four large States be much. For, takino; into considera- tion the chances for the frequent devohition of the election on the House of Representatives, the substitute ofters them an adequate equivalent in the difference proposed in their favor in the formation of the College. That diflerence is not as much as, in justice, ought to be accorded to them, if we were framing the Grovernment entirely anew, upon the principles of a con- solidated Democracy. But standing, as it does and ever must, upon federative as well as democratic principles, the diHerence is fully as much as ought to be expected, or will be conceded by the smaller States. The proposed reduction of the veto power will also somewhat enhance the equivalent, as that is one of the most strongly federative features of the Govern- ment, as it is also decidedly the most anti-democratic. But, sir, whilst I am fearing opposition to the plan from the Federalists of the nation, because it will so essentially curtail the powers of that department which has been supposed to be so greatly the favorite with them, you may be apprehending opposition from the Democracy of the countr}-. You may well fear party Democracy, or any other partj'-ocracy ; for the diffi- culty of procuring that or any other amendment is so great that the general concurrence of all existing parties will be required, and it should never be presented as a movement from either party. But of old-fashioned Democracy, that Democ- racy^ which had for its motto "principles, not men," you need have no fear. I am a born child, an educated son of that school, and profess to know somewhat of its principles. Jealous of power, and especially jealous of public servants, yet it has sense enough, whatever its maligners may think or say, to know the necessity of good government, and cheerfully grant all power necessary to that end. It has sense enough to know that an elective despotism does not suit the countrj^; that the concentration of all legislative as Avell as Executive power, nor the concentration of any other exorbitant and irresponsible power into the hands of a single man, is not according to the principles of good government ; that the pollution of the ballot-box, or the degrading of popular election, does not suit the country ; and, that neither the school itself, nor its true followers can have any interest in upholding 486 LETTERS ON THE PRESIDENCY. a system, tlie inevitable effect of wliicli is ultimately to cause all popular elections to be carried either by tlie force of knavery, or the power of the j)urse. In fine, it has sense enough to know the importance of keeping away too strong stimulants to popular heat and strife, and that there are many instances where it is better to trust the filling of oflices to ser- vants elected by the people themselves, than submit to the inconveniences of popular elections to such offices. ISTot only the Federal, but all the State Constitutions, are replete with the evidence and proof of the possession of this sort of wisdom by the Democracy of the land. Every man must acknowledge that the plan proposed is much more Democratic, even accord- ing to a Federalist's ideas of Democracy, than the present plan, as it was understood and intended to operate at the time of its adoption by our fathers. We Democrats of the present day do not affect to be wiser or purer than they. Their Democracy was pure enough and good enough for us. Rest assured, sir, that if those who have been educated in the Federal school do not find anything in the scheme repug- nant to their peculiar notions of Government, that those of our school will not. My own belief of both schools is that you have only to convince their judgments of its necessity, and not being repugnant to the prejudices of either, they will both accord to it a ready assent. This belief, I might say this strong conviction, arises not merely from the undoubting convictions of my own mind as to its propriety, but from the fact that of the numerous persons of all the different grades of intellect, different parties ajid different stations in society, to whom I have men- tioned it in the course of the last twelve years, not one has failed to accord the scheme his most hearty approval the mo- ment he understood it. If you doubt this, go into your streets, take men promiscuously as you may chance to find them, tell them there is a nameless somebody in the far West who has been proj^osing this alteration in our Government, and ask them what they think of it. You will not probably find one in a morning's walk who will not give you a similar response ; and, without hint or suggestion from you, the humblest among them may surprise you by the force of the arguments he will adduce in support of his opinion. LETTERS ON THE PRESIDENCY. 487 APPENDIX TO CHAPTER XX. No. I. The publication of the Letters on the Presidency induced a published cor- respondence between the late Roger M. Sherman, of Connecticut, and their author; extracts from -nhich are here given. The talented editor of the Louisville Journal, in referring to that correspond- ence, thus spoke of Mr. Sherman : " It may not be amiss to state, for the information pf "Western readers, that, in New England, his reputation as a profound and enlightened jurist is unsur- passed ; and that, as a talented statesman, he is deemed to have few or no supe- riors. We do not think that we need except even Daniel "Webster." Mr. Sherman had previously published a plan for relieving the country from the party excesses growing out of our Presidential elections. This was, in substance, to arrange the members of the House of Representatives into five geographical districts ; draw a member by lot from each district, and upon the five so selected confer most of the President's patronage, not pertaining to the army, the navy, or foreign relations. Fairfield, Conn., Febniai-y 4, 1841. Dear Sir, — Rarely has any occurrence afforded me so much satisfaction as the receipt of your letters on the Presidency. You have made a clear and im- pressive exhibition of the only constitutional disease which endangers the morals and liberties of the country, and have ably shown and illustrated the only remedy which can be effectual. There is no sufficient remedy but the lot ; and that is so unexceptionable, so congenial to the inestimable principles of republican liberty which pervade our whole system, and the spirit of our people, that no other can be reasonably desired. In this State, and many others, the jurors, who guard and dispose of property, liberty, reputation, and life, in the administration of justice, are selected by lot from a body previously chosen. It has never been imagined that the democratic principle was invaded by this mode of constituting a department, which has more practical and un- remitted influence on the highest interests of the citizen, than any other agency of the sovereign power. The difficult question is not whether the lot shall be applied, but in what manner and to what extent.* I should have embraced the plan of Mr. Ilillhouse, to choose the President himself by lot, from the senior class of Senators, had I not found, so far as I *The plan vre hiive always had in Kentucky to provide an honest hoard to try and decide a contested election of Governor or Lieutenant-governor, has been to select mem- bers of the Legisluture for that purpose by lA. By the revision of 1S50 the same plan has been extended to contested elections of members of the Legislature. 488 LETTERS ON THE PRESIDENCY. could ascertain, that public opinion was opposed to it. But all these great men (Chief Justice Marshall, William H. Crawford of Georgia, and Chief Jus- tice Parsons of Massachusetts), who approved it, expressed their apprehension that public sentiment could never be reconciled to its adoption. I am appre- hensive its adoption will prove impracticable. Permit me, sir, respectfully to submit to your consideration a dif&culty which occurs to me, in the particular plan which you propose. We concur in the great object, which is so to apply the lot as to preclude the influence of ambition and cupidity in the elections made by the people. If your plan will produce that effect, it is not liable to the objection which I am about to suggest. Will the ultimate choice of a President, made by the Electoral College, from the members selected by lot from their own body, be governed or materially influenced by the political parties of the country? If it will, we shall agree that the deplorable corruption which now threatens ruin to the morals and liberties of the nation, will retain its vigor, and accomplish its desolations. Suppose the College to consist of fifty, chosen by the people of the several States, and each party to secure as many as possible of its members. When they are convened the lot is cast. It is easy to guard against corruption in that process. Were the President to be chosen by the seven thus selected, the party influence which had been exerted in constituting the College would be ineffectual. To predict from which party the lot would select a majority of these seven, would baffle the skill of the most astute politician. But the chance that one, at least, would be drawn from each party, would almost amount to a certainty. If their numbers were equal in the College, this chance would be seven to one. It will then be foreseen, in the original choice of members by the people, that the chance of getting a President will be more than seven to one in favor of that party which shall secure a majority in the College. Will the motives to party struggles, as compared with the present state of things, be materially varied by the proposed amendment ? I fear that the election which folloics the lot, made by cJiosen agents, will go far to neutralize its in- fluence. A nomination of a partisan, made by lot, will not differ from a nomi- nation by a caucus. Then, as now, the majority in the College will choose a candidate from its own party. We agree as to the remedy ; and as to the mode of applying it I have no choice, if one can be adopted which will, as far as possible, avoid the necessity of encountering popular prepossessions, and secure the great object intended. Yours, with great respect, ROGER M. SHERMAN. S. S. Nicholas, Esq. Louisville, Ky., Fehruanj 14, 1841'. Sir, — The name of Chancellor Kent can now be added to those in favor of obtaining our Presidents by lot instead of elections. The objection you urge to my modification of Mr. Ilillhouse's plan had not escaped my attention, though I did not view it in the serious light you do. As a matter of course, I consider that under such a plan the first President would be selected more on account of his party politics than his personal qualificationa. LETTERS ON THE PRESIDENCY. 489 This is unavoidable ; but there I suppose the evil would, in a f^eat measure, stop. If he possessed any part of the integrity he ought to have, he would endeavor to carry out the principles of such a new system and, refusing to act as party President, do all he could to allay party acerbity and division. The success of Mr. Monroe in bringing about the " era of good feeling," is proof positive as to the power of a President in that way. Such a course would expose the futility of party organization for controlling the election to party purposes, and it seems to me would prevent it. One disappointment of such hopes would forever deter from taking the trouble necessary to general organ- ization and action. Great national parties can neither be gotten up, or kept up, except by the countenance and exertions of the more distinguished politicians; and my belief of them is, that they will never lend that aid unless they know beforehand who is to be benefited or who is to be prejudiced, one or both. This they could never sufficiently know, under such a plan. It would not be like all the malcontents of the nation uniting upon a man for whom they personally care but little, in order to turn out one whom they knew to be inimical to tliem. There never would be any one to turn out, and no one who could be certainly designated as the man to be put in. Supposing parties in some shape always to exist, I should esteem it a merit rather than a demerit of the plan, that it afforded the majority party a prob- able opportunity of getting a man of their own politics, provided it did not leave the spoils so far within the direct and certain reach of party as to render them the thing sought for, and the very object of party combination. These reasons induced me to think the range of choice might be extended as far as seven, without danger to the principle of the scheme. I was dis- posed to extend it to the utmost verge, not by any means because my own opinion was in favor of so large a number, but to render it as acceptable as possible to popular taste, and from the conviction that the little countenance Mr. Ilillhouse's plan had received was owing to the total absence of some such range of choice. If, however, these reasons are sufficient, and I am not at all prepared to in- sist that they are, if your objection does really apply to so large a number as seven, it is unanswerable, and should forbid the adoption of that or any other number to which it will justly apply. My own preference would be in favor of four or five. Reduce it as low as three, and it seems to me the whole ob- jection would be entirely obviated. The chances would then be too small to constitute an inducement for the formation of parties to that end. You are kind enough to ask my opinion as to the amendment proposed by yourself. I deem your article perfectly conclusive, as to the futility uf all schemes for transferring the patronage of the President to either House of Congress, with the view of reducing his power and bringing him under con- trol ; and, if the powers of the President are to be reduced, and the stimuhint to party action removed, by curtailing the amount of his patronage, your plan is the only one I have ever yet seen suggested, that bears with it even the plausible appearance of being effectual. I will, however, respectfully suggest a reason for doubt whether it would be 62 490 LETTERS ON THE PRESIDENCY. effectual, and if it were, -whether it would be desirable. The honor and power still remaining to the office of President would be so great, as to render it a high prize, Avell worthy the emulation of the ambitious, and still present it as a nucleus for the formation of national parties, and the gratification of that great natural bent of the whole human family toward forming themselves into contending parties. The House of Representatives being, therefore, always made up of party men, your scheme would necessarily devolve the appointing power upon men who would be of one or the other party. If of the dominant party, then, according to your own argument, would it even diminish the party power of the President? Would it not rather enhance it, by giving him all the benefits of its exercise for party purposes, without the odium and responsibility for its abuse ? If the appointing committee should chance to be of the minority party, its powers would be used for the behoof of that party, to the infinite vexation and annoyance of the majority ; and might it not furnish the cause or pretext for exasperating and injurious colli- sions between the difi"erent functionaries of Government? As I understand it, you intend the term of ofiice of the committee shall be only two years. Would either its duration or importance content the political aspirations of the committee-men ? would it place them above the influence of party ? But being under its trammels, would they not still look to its propitiation as the means of further elevation ? For the reasons stated in my printed letters, I am disinclined to any carving away of the President's constitutional powers, unless it can be so done as essentially to mitigate the excess of party action on our institutions, and only with a view to that object. He must always be either a cypher or a despot, as his character is either weak or strong ; and so the matter must ever rest, unless he can be obtained by some process different from that which controls the election of members of Congress. My wit is utterly at fault for devising any other means of making them independent of each other. Most respectfully, S. S. NICHOLAS. Hon. R. M. Sherman. Fairfield, Conn., March 17, 1841. Dear Sir, — I should be much disposed to hope, if warranted by experience, that the person elected President, in the mode which you propose, " would endeavor to carry out the principles of such a new system, and, refusing to act as a party President, do all he could to allay parties." But, in this and all other countries where parties have existed, it is fully proved that, although an honest man, like Mr. Monroe, to whose example you allude, may sometimes use his influence to soothe party asperities, no reliance can be placed on so rare an occurrence in providing against the abuses of power or the inroads of corruption. Something, in his case, was attributable to circumstances as well as to the excellent disposition of the man. His own party had gained an entire predominance, and their opponents had retired from the conflict. The idea of the necessity of any amendment is founded on the assumption that the temptations to party coalitions for attaining office must become extinct, and no confidence be placed in the heart of man as their antagonist. Every member LETTERS ON THE P II E S I D E N C Y. 491 of the proposed College will then, as now, be pledged to liis party as an indis- pensable condition of his electiim. AVe know with what sacrednoss these oldi- gations are kept to the neglect of every other. Not the }nan who is made Presi- dent, but the parti/, is the object of strife. The spoils will be as faithfully distributed by any pledged member of such a College, who should luippen to be drawn and chosen' President, as by one elected by the original suffrages of the people in the present form. The enterprize of our people, and the many hazards which it leads them to encounter in their business operations, fill the country with a large portion of citizens bereft of revenue, " who cannot dig, and to beg they are ashamed ; " whose chief or only hope of escaping the sufferings and dishonor of poverty, is the attainment of some of the many thousand offices and employments in the gift of the Administration. With despair on one hand, and a hope, as three to one, in the event of party success, on the other, can we doubt their most strenuous exertions? If, as you seem to suppose, party spirit, grounded on hopes from political excitement, is in any degree desirable, it will, I think, be impossible to give it place, and at the same time restrain it within reason- able limits. I believe the only just policy is its utter extinction, so f\ir as it can be effected. The course of events in the United States has, in a great degree, obliterated that delicate moral sense, which distinguished the assembly that declared our independence, the Convention which formed our Constitution, and the earliest administration of our Government. So jealous was Washington of his own honor, that he would never appoint a near relative to office. He knew, and every just casuist must admit, that conferring office for the benefit of one's own connections, or to reward political auxiliaries, is foreign from the object for which they were intended, an abuse of trust, and palpable corruption. Every man who gives or takes an office as a reward for services at the polls, is party to an act of bribery. But such a practice is in its nature progressive, and when extensively adopted, augurs certain destruction to a republic. A GoveiTiment sustained by an hereditary monarch and nobility may retain power unshaken by corrupt elections. But in a Democracy the gangrene in- fects the vitals of the Constitution, and death is the inevitable result. Des- potism will succeed to anarchy, and the liberties of the country be lost for- ever. The standard of political morality, compared with that of the founders of our Govei'nment, is low indeed ; and, unless tlie causes of its rapid depression are soon removed, their desolations vnll become irreparable. What are those causes but the power exerted over popular elections for the attainment of office ? For what else do we seek a remedy ? Would that remedy be effwitual, which, as you adinit in regard to the plan you propose, " afforded Uie majority- party a, probable opportunity of getting a man of their own politics ? " Could this be done, " and not, at the same time, leave the spoils so far within the reach of party", as to render them the thing sought for, and the very object of party combination ? " We are too apt to apprehend that, after adequate amendments to the Con- stitution are made, political parties ^vill still exist, and the House of Repro- 492 LETTERS ON THE PRESIDENCY. scntatives continue to be divided, as they now are, by private political inter- ests. I think this an error. We must adjnit, for the fact is obvious to our daily observation, that in this country, ^vhere no titles or pensions are in the gift of the Executive, the natural and essential aliment of political partyism is the hope of oflBce. Your remark is just, "that great national parties can neither be gotten up, nor kept up, except by the continual and active exertions of the more distinguished politicians ; and (your) belief of them is, that they vrill never lend their aid unless they hiow beforehand vrho is to be benefited and vrho is to be prejudiced, one or both." Very respectfully, your obedient servant, ROGER M. SHERMAN. S. S. Nicholas, Esq. Louisville, April 3, 1841. Sir, — I must have expressed myself badly in leading you to suppose, that I thought " party spirit, grounded on hopes from political excitement, as in any degree desirable." Nothing can be farther from my creed than to deem party spirit desirable for any purpose. It is the vrorst and most dangerous vice of a Republic. It is the more dangerous, because of the lurking guise in which it always appears, the semblance of a sort of bastard patriotism. It acts upon us in the same way as do those " big wars that make ambition vir- tue." It is the most potent spell ever invented by the crafty, for guiding and governing the ignorant and confiding. But it is also an irradicable evil. We should distrust the eflScacy of any phm that depends for success upon its total extinction. We had as well expect by legislation, or constitutional amend- ment, to extinguish ambition, avarice, hate, or any other human passion. Assuming tliat parties always will exist, I presume you would concede, all other things being equal, that a man of the majority party ought to be Presi- dent, if he can be had without the danger of party excesses in pursuit of the office. This is the extent to which I meant to be understood, as approbating the toleration of a party preference. If the scheme could not allow the mar jority a probable chance of always obtaining a man of their views of policy, for President, without great hazard of having its whole purpose frustrated, then, of course, the remedy would be inefficacious, and nothing but the single blind lot of Mr. Ilillhouse will answer the purpose. Without being at all disposed to be pertinacious on the question (for it is but theorizing without the aid of experience), I am strongly inclined to think that as many as five could be safely allowed to be designated by the lot, for the College to choose from. We have not merely the benefit of Mr. Monroe's example to prove what a President can do toward allaying political parties, but the example of all the judiciary throughout the Union, ever since- the existence of the Government, in abstaining from party bias in their official acts, to prove that individual men can be safely relied upon for such absti- nence, when ipublic sentiment requires it. Public sentiment is, and always will be, the paramount law and controlling power in this counti-y. If it could be so far redeemed and regenerated, as to procure the adoption of such an amendment of the Constitution, for the very purpose of rescuing the offices LETTERS ON TUE PRESIDENCY. 493 of the country, and placing them out of the reach of party warfare, tlic na- tional condemnation of the " spoils system " would be so indelibly stamped, that no man raised to the Presidency under such a plan would any more dare to act upon that system, than do our judges to decide for or against a litigant, merely on account of his politics. Your objection goes upon the hypothesis, that public sentiment on that subject will remain what it now is; whereas, that sentiment would have to be entirely reformed before any such amend- ment could be adopted. A candidate for the Electoral College, therefore, so far from giving any such pledge as intimated by you, directly or impliedly, would, by its utterance, secure his own certain condemnation and rejection. Once establish the principle, that our Presidents were never to act as political partisans, there being no personal motive for an incumbent to violate it, we could as certainly and as securely rely upon its being acted up to, as we now do, upon its being strictly observed by our judiciary. Whilst parties remain, any elected functionary who has not attained the topmost round of the po- litical ladder, may well be suspected to use his patronage for party purposes. But, after attaining the top, he is free to kick aside the ladder by which he ascended, and will do so if sustained by public sentiment. The plan would, also, under even its most unsuccessful mode of operation, save us from much of the evil growing out of another prevalent and irradica- ble vice of the whole human family, — that is, a mean subserviency to, and blind worship of great men, whether heroes, orators, or statesmen. Nothing is more humiliating, but nothing more true and certain, than that the im- portant national affairs of an enlightened Republic like this, have been and always will be made subservient, through that vice, to the individual interests of particular men. If it has not already happened, under the operations of the present plan, the time will come, as intimated by General Harrison, when an Anthony and an Augustus shall each have a party in Congress, whilst the Kepublic has none. The contests for power, between eminent men, has been the proximate cause of the destruction of every other Republic. It surely would be no small merit in the proposed plan, that it would certainly secure us against that danger. It is not improbable that the emulation and contests between a few emi- nent men have had more to do in the formation and excesses of parties in thia country than all other causes combined. I am not old enough to know the fact, nor are there sufiGicient data upon which positively to affirm it ; but I strongly suspect that the personal rivalry and contests between Jefferson and Hamilton, begun in the Cabinet of Washington, had more to do in the subse- quent formation of the great Federal and Democratic parties, than any dif- ference of creed or views of policy on the part of the great body of the nation ; and that the great mass of both parties took their sides and adopted their political creeds more from admiration, and confidence bestowed upon those two men, than all other causes. Humiliating as this surmise is, its very prob- able truth will be vindicated by tracing what we certainly know of the rise and progress of the two existing parties. Four competitors started for the succession of Mr. Monroe, each upon his own personal pretensions merely, there being then no existing parties, and 494 LETTERS ON THE PRESIDENCY. the support each received was mainly ascribable to personal preference and sectional bias. Men of all manner of principles and views of policy were to be found in the ranks of each. But no sooner had the election terminated in favor of Adams, than the two parties were at once formed, — the one com- posed of that portion of the nation which personally preferred Adams and Clay; the other of those who were opposed to them. The sole point of divi- sion throughout his term was the question of his re-election. Of those who voted for his successful competitor, probably four-fifths did so more from opposition to Adams and Clay, than from preference to Jackson, The point of division then turned upon the re-election of Jackson ; and the two parties were still so mixed up, with men of all political persuasions, that there were no true terms of designation, but the degrading ones, of Jacksonite and Anti- Jacksonite. From no other cause, then, than a contest between some promi- nent men for the Presidency, with the vexation and disappointment ensuing the success of one of them, we had the formation of the present parties, and all the misrule that has thence ensued for the last sixteen years, with a cer- tainty that the contest will not terminate for at least four years more. We have the whole party excesses, for the fifth of a century, fairly traceable to a cause that could never exist under the proposed plan. If it did nothing else, it would surely be achieving a great deal, in removing that incentive, and aid to the formation of national parties. We cannot well over-estimate the benefit to be rendered by such a plan toward the healthful action of our Government, in the obtaining our Presi- dent by a different mode from that by which we get the members of Congress. The severance of that identity of political fate and interest, which now unites them so closely, cannot but be greatly promotive of the proper independence of Congress. A member could never be deemed as even impliedly pledged to the support of an undesignated and unascertained man who might chance to be placed in the chair. He could have no fear of his constituents in with- holding his support where he did not think the President deserving it. The fate of his own political party, even, would not depend upon the good or ill success of the Administration of a President so chosen. It would be a great point gained, thus to restore and secure the independence of Congress. That once done, I am yet to be convinced that the President has too much power. I have no fear of temporary power, when its exercise is subject to restraint and proper responsibility. All arbitrary and irresponsible power (whether great or small) I hold in abhorrence. Sufficient power in the Government is a first want of every society. The want of sufficient energy is the exception taken by all foreign speculators to our form of Government. The most en- lightened among them think it could not even exist in jtuctaposition and actual territorial contact with powerful monarchies. The theorizing of all the more enlightened teaches that unity of action, and great concentration of power in a single Executive head, are indispensable to adequate energy in a government. In a government of limited powers, and lacking many of the elements of strength common to most others, would it be wise to weaken the Executive department if it can be avoided ? I have lo«t nearly all the fears with which I was educated, of the centripe- LETTERS ON THE PRESIDENCY. 495 tal tendency of our system, except in the effects to bo produced by political party action upon it. This forms so obviously hirge a portion of the power of the Federal Government, as to cause an occasional mis<:;iviiip; as to the eligibility of Mr. Hillhouse's scheme, from the fear tliat in breaking up our national parties it might take away an element of essential strength. The working of the system under the operation of parties, is not merely to remove the natural counterpoise presented in the power of the State authorities, but to bring them in as aids to that of the dominant party in the National Gov- ernment. The machinery of State Governments present such ready means of organized and efficient opposition to encroachments on the part of the Federal Government, that I have long since been convinced that we have nothing to fear from centralization, except through the omnipotent and un- controllable power of partyism. That is the only despotism we have as yet had to encounter, and the only one we thus far have seen any cause to dread in the future. Whether the Ilillhouse plan, or any modification of it, will ever be adopted, I know full well is very improbable. But my doubts rest not where yours and Judge Marshall's seem to lie. I have no mistrust of the Anrtue and intelli- gence of the great body of the nation. My trust in its patriotism is unquali- fied and unbounded. My convictions undoubting, that no mere prejudice for or against any form of Government, whilst the essentials of republicanism are preserved, will ever prevent the nation from yielding its assent to any change that the combined intelligence of the country may recommend as necessary to its well-being. I could cull six men from the two parties of the day who, by uniting in the recommendation of some such plan, I believe, would carry it without fail. But, in all probability, no such six men will ever be brought to unite in such recommendation. If the thing is ever done, it will be by the people acting from their primary assemblies upon the politicians. The respon- sibility of the first move will never be assumed by the politicians themseh'es. Every man I meet with, who has served any time in Congress, undisguisedly expresses the opinion that either the Union or the republican structure of the Government is short-lived. One of them recently remarked to me, that of all the dangers threatening it, ninety-nine in the hundred arise from contests for the Pi-esidency. Such is the general tone of feeling of the intelligent men with whom I have intercourse. Yet we find no one in or out of Congress making a serious efiFort to retard this downward tendency. The subject is too large, and the danger too remote, for men without official or personal influence to bestir themselves. Those having such influence will not hazard their pop- ularity by any such untried issue before the people. They console themselves by assuming the fact that it would not succeed, and it would, therefore, be a profitless personal sacrifice to make the effort. jNIy belief is, that you, in common with all others, who have Avritten on the subject, ascribe too much influence to the lust for office, in the formation of national parties, and in producing their excesses; though, perhaps, too much cannot be ascribed to the power of patronage, in obtaining and preserving the dominance of party. Party spirit alone, with the passions it engenders, is capable of any excess, without the stimulant of such motive. The most bitter 496 LETTERS ON THE PRESIDENCY. party contest ever carried on In this country, within my experience, was in this State, under circumstances that forbid the ascription of lust for office to either party. The great body of the people cannot be banded into parties for the mere pursuit of office ; but, after they are so banded from any other cause, party spirit enables their leaders to use them, as they are used, in the mere pursuit of office for those leaders. Some fancied public good is the motive with the many ; that of the spoils with the few alone. The mere office-holders, or office-seekers, constitute a very meagre minority of either party. If the lust for office be the main-spring to our party formation and action, then it seems to me your plan would be inadequate ; because, if even success- ful to the extent proposed, it would remove only a small portion of the spoils of party warfare. From any estimate I can make, the whole patronage of the Federal Government, throughout all its departments, is not the tenth part of those spoils, — the main body of them lying in State and corporation offices, jobs, and employments. Your scheme would reach no part of these. Large as would be the aggregate deduction from the direct patronage of the President, yet view the thing in detail, and you will perceive how inadequate the scheme is to produce the great result anticipated. For instance, there are in Kentucky some half dozen post-offices worth the having; the office of mar- shal not worth much now; and that of district attorney worth perhaps six hundred dollars, as the sum total of all his patronage that would cease to ope- rate upon the people of Kentucky. Its utter inadequacy to produce any serious influence upon them, you will at once perceive. The amount of the same sort of patronage, to influence the adjoining States of Ohio, Indiana, and Tennes- see, is about in the same proportion. Yet in no part of the Union are the party conflicts fiercer than in these States, nor is there anywhere more cor- ruption in the elections. S. S. NICHOLAS. Hon. R. M. Sherman. Note. — A strikin;; illustration of the correctness of the view taken in the last letter, as to the power of mere patronage, has been afforded, since it was written, by the oxperienoo of President Tyler. When that gentleman left the Whig party he could not control ten votes in both Houses of Congress, notwithstanding he held at his disposal the entire patron- age of the Government. It goes also to prove the correctness of the author's view taken in the Letters on the Presidency, that the whole of the direct powers of a President, in their incidental bearing upon the legislative department, are as nothing in comparison to his power as head of the party which elected him- No. n. The following letters from William II. Crawford and Chief Justice Marshall give their opinions upon the Hillhouse plan for obtaining a President by a lot drawn among the senior class of Senators : Woodland, June 4, 1830. My Dear Sir, — I recollect distinctly the propositions of amendment to the Constitution, which you submitted to the Senate twenty-two years ago, and which I then seconded. At that time I had not made up my mind definitely upon the principle of the amendment. Reflection and experience have convinced LETTERS ON THE PRESIDENCY. 497 me that the amendment is correct. I am now entirely convinced that f^rcat talents are not necessary for the Chief Magistrate of the nation. A moderate share of talents, with integrity of character and conduct, is all that is neccs- saiy. ***** But I am not certain that the nation is prepared for such an amendment. There is something fascinating in the idea of Kele(;ting the fii-st talents in the nation for the Chief Magistrate of the Union. The view which ought to decide in favor of the principle of your amendment is seldom taken. The true view is this: Elective Chief Magistrates are not, and cannot, in the nature of things, be the best men in the nation ; while such elections never fail to produce mischiefs to the nation. The evils of such elections have generally induced civilized nations to sub- mit to hereditary monarchy. Now, the evil which is incident to this form of Government is, that of having the eldest son of the monarch for ruler, whether he is a fool, a rascal, or a madman. I think no man, who will reflect coolly upon the subject, but would prefer a President, chosen by lot out of the Sen- ate, to running the risk of having a fool, a rascal, or a madman, in the eldest son of the wisest and most benevolent sovereign that ever lived. "When the amendment is considered in this point of view, I think it will find favor, espe- cially when it must be admitted that the selection of a President in this man- ner will be productive of as little turmoil and agitation, as the accession of the son to the father in hereditary monarchies. The more I reflect upon the sul> ject, the more I am in favor of your amendment. I am, dear sir, your friend and most obedient servant, WM. II. CRAWFORD. Richmond, May 2G, 1830. My Dear Sir, — I have just returned from North Carolina, and had this morning the pleasure of receiving your letter of the 10th, accompanying your proposition for amending the Constitution of the United States, as to the mode of electing the President, and your speech made on that subject in the Senate in 1808. I read your speech when first published with great pleasure and attention, but was not then a convert to either of the amendments it suggested. In truth, there is something so captivating in the idea of a Chief Executive Magistrate, who is the choice of the whole people, that it is extremely difficult to withdraw the judgment, from its influence. The advantages which ought to result from it are manifest; they strike the mind at once, and we are unwil- ling to believe that they can be defeated, or that the operation of choosing can be attended with evils which more than counterbalance the actual good result- ing from the choice. It is humiliating, too, to admit that we must look, in any degree, to chance for that decision, which ought to be made by the judgment. These strong, and apparently rational convictions can be shaken only by long observation and painful experience. Mine are, I confess, very much shaken; and my views of the subject have changed a good deal since 1808. I consider it, hiiwever, rather as an affair of curious speculation than of probable fact. Your plan comes in conflict with so 'many opposing interests, and deep-rooted prejudices, that I should despair of its success, were its utility still more apparent than it is. 63 498 LETTEKS ON THE PRESIDENCY. All those who are candidates for the Presidency, either immediately or remotely, and they are the most powerful members of the community, will be opposed to it ; the body of the people will also, most probably, be in opposi- tion ; for it will be diflacult to persuade them that any mode of choice can be preferable to election, mediate or immediate, by themselves. The ardent politicians of the country, not yet moderated by experience, will consider it as an imputation on the great republican principle, that the people are capa- ble of governing themselves, if any other mode of appointing a Chief Magis- trate be substituted for that which depends on their agency. I believe, therefore, that we must proceed with our present system, till its evils become still more obvious, perhaps, indeed, till the experiment shall become imprac- ticable, before we shall be willing to change it. My own private mind has been slowly and reluctantly advancing to the belief that the present mode of electing the Chief Magistrate threatens the most serious danger to the public happiness. The passions of men are in- flamed to so fearful an extent, large masses are so embittered against each other, that I dread the consequence. The election agitates every section of the United States, and the ferment is never to subside. Scarcely is a Presi- dent elected, before the machinations respecting a successor commence. Every political question is affected by it ; all those who are in office, all those who want office, are put in motion. The angriest, and I may say the worst, passions are roused, and put into full activity. Vast masses, united closely, move in opposite directions, animated with the most hostile feelings toward each other : what is to be the effect of all this ? Age is, perhaps, unreasonably timid. Certain it is that I now dread con- sequences, which I once thought imaginary. I feel disposed to take refuge under some less turbulent and less dangerous mode of choosing the Chief Magistrate ; and my mind suggests none less objectionable than that you have proposed. We shall no longer be under the bannei-s of particular men. Strife will no longer be excited when it can no longer effect its object; neither the people at large, nor the councils of the nation, will be agitated by the all-dis- turbing question. Who shall be President? Yet he will in truth be chosen suhstantially by the people. The Senators must always be among the most able men of the State. Though not appointed for the particular purpose, they must always be appointed for important purposes, and must possess a large share of the public confidence. If the people of the United States were to elect as many persons as compose one Senatorial class, and the President was to be chosen among them by lot, in the manner you propose, he would be suhstantiaUy elected by the people ; and yet such a mode of election would be recommended by no advantages which your plan does not possess ; in many respects it would be less eligible. Reasoning a priori, I should undoubtedly pronounce the system adopted by the Convention the best that could be devised. Judging from experience, I am driven to a different conclusion. I have, at your request, submitted ray reflections to your private view, and will only add that I am, with great and respectful esteem, your obedient servant, J. MARSHALL. LETTERS OX THE PRESIDENCY. 499 No. III. Under our present mode of nominal elections by the people, our Presidents were formerly appointed by Congressional caucuses. That mode becoming obnoxious, and under the pretext of bringing the appointing power nearer to the people, those caucuses were abandoned, and the appointing power trans- ferred to party conventions. Those conventions, by repetitions iluriug the last twenty-five years, have become a permanent institution, which promises to remain as durable as the elective system. Any proposed change in the plan for obtaining Presidents needs only to be compared with that institu- tion. The only question as to any new plan is, whether it be preferable to that institution. It would be profitable, if space allowed, to reproduce here Colonel Benton's dagiierreotupe of the Cincinnati Convention. That picture will serve equally well for any similar convention of a dominant party that wc shall ever have. In the absence of that picture, and to avoid the imputation of drawing one for a purpose, the following extracts will be given from a recent number of that temperate, discreet paper, the New York Times. The editor is commenting on the recently attempted reform movement in Baltimore and " part}- despot- ism," as exemplified in our City Governments. It will stand for a full-length portraiture of what our whole system of Government, National and State, has become, or soon will be, under the influence of "party despotism," wielded through party conventions. It is also a fair portrait of the manner in Avhich most party conventions are gotten up. " Their governments have been seized by professional politicians, and are wielded, not for the public good, but for their own emolument. The tribunals of justice have ceased to have authority, even when they are not themselves used to screen the crimes it is their duty to punish. Public office is made the spoil of rapacious ruflians, and the public treasure becomes the stimulus and the reward of this base ambition. "All this has been brought about under the forms and by an abuse of the powers of republicanism. The people elect their own rulers, — and the pal- pable, practical result is, that the people elect scoundrels and vagabonds to make their laws and to put them in execution. Naturally enough the ene- mies of republicanism jump to the conclusion that the people are not compe- tent to govern themselves, — that they have neither the virtue nor the intelli- gence requisite to the proper discharge of the high functions of government, and that anything like progress in the best sense of the word is utterly im- possible under popular institutions. If the evils under which our cities groan are not removed, democratic government, so far as our great cities are con- cerned, may justly be pronounced a failure, — for as things are now they Iiave no government worthy of the name. "The people of Baltimore have indicated the origin of these evils by the character of the remedies they propose. They begin by discarding utterly the authority of political parties to control their votes for city officers. As things are now managed, the actual power of electing local rulers is vested in 500 LETTERS ON THE PRESIDENCY. the corrupt and irresponsible caucuses and conventions which shape the action and select the candidates of the political parties of the day. The " primary meetings," at which delegates to the nominating conventions are appointed, control the whole machinery. Being outside the provisions of the law, every man may vote as often as he likes, — handfuls of tickets may be thrown into the boxes — the inspectors may falsify the returns, and any other act of vil- lainy nec(^sary to control the result, may be perpetrated with entire impunity. Political swindlers begin, therefore, by getting control of these meetings ; that step gained, the rest follows as a matter of course. The delegates meet in convention, and nominate their candidates, for whom every man of the political party to which they belong feels bound to vote, as a matter of politi- cal duty. So long as this rule oi partisan loyalty holds, we can never have good municipal government. The thieves, bullies, rowdies, gamblers, and miscellaneous vagabonds of a great city can always afford the time and money needed to obtain control of the primary meetings, and, as an inevitable con- sequence, they will always remain the ruling classes. " There is but just one way to end all this, — and that is precisely the way the people of Baltimore have resolved to adopt. The dictation of political con- ventions must be repudiated. " The people never have been ripe for a real reform. They have never really cared more for a good Government than for a party triumph. They have never desired clean streets, a good police, orderly ways, safe walks, and the thousand luxuries of a well regulated society, as much as they have desired the empty honors of a party victory. " The root of the whole evil lies in the assumed obligation of men to vote for their party candidates. As long as this obligation is acknowledged it will be utterly impossible to have a decent Government in any city where there is plunder enough to make stealing profitable. And until the great mass of the honest portion of the people in Baltimore, in Philadelphia, and in New York are ready to repudiate a principle of action which degrades and disgraces as much as it robs and injures them, they must submit to just such consequences as they now experience." N"o. IV. PARTY DESPOTISM, EXCESSES, AND CORRUPTION. The national experience on these subjects, during the last twenty years, is the most instructive of our whole history, for the purpose of these essays, if a detailed development could be given without offence to many living actors in the political scenes of that period. But as the object is to conciliate a hearing from men of all parties, those recent topics can only be scantily and briefly reviewed. The prediction of the foregoing letters as to the development and diffusion of the system of "rewards and punishments" or "spoils system" has been amply verified. In despite the Whig pledge to "proscribe pi-oscription," the predicted "clean sweep" of all incumbents, was only prevented by the early LETTERS ON THE PRESIDENCY. 501 * death of President Harrison, and the secession or expulsion of President Tyler from the Whig party. Under Presidents Taylor and Fillmore the "clean sweep" was made. Since then a formidable nevr party was organized, having political proscription and "oath-bound" fidelity to party as tlic very basis of its-vitality. Disdaining the simulation and dissimulation of otlier parties, it frankly avowed proscription of opponents and obedience to party dictation as political duties necessary to the attainment of power. Thus all parties have followed the lead of the Democracy. The "spoils system" everywhere pre- vails and has become a j^erma/iCH^ national institution. It has ceased to receive any of that popular censure with which it was, only twenty years ago, so bitterly denounced, and is acquiesced in as a supposed necessary evil. As a means for corrupt party supremacy, the system has received astound- ing increase of power and perfected development. To stimulate exertion and pay party debts, men even of the successful party are thrust from office to reward others of the same party, who have either been more active, or are more friendly toward an incumbent President. Thus, the incentive to activity from lust of ofilce is nearly doubled. But this additional insecurity of tenure in minor offices depreciates their value to incumbents, and induces the efibrt to make the most of them whilst they last. During the first forty years of the Government there was very little fraud or peculation among minor office-hold- ers — not more than among the officers of commercial corporations, such as banks and insurance companies. The permanency of tenure gave such value fo the offices as to deter incumbents from peculation. Not trusting to the zeal of office-holders, their active exertions and pecuni- ary aid at elections are rigorously and openlj' coerced by party discipline. This was formerly attempted to be kept secret, and was stoutly denied by the party press. The fact having become too notorious for denial, it has been un- blushingly avowed and attempted to be justified by the official party and Presi- dential organ. Such examples are sure to be followed by other parties when they attain power, and this too will become part of the "permanent national institution." These forced contributions are not confined to officers, but extend to contractors and bidders for contracts with Government. It accidentally leaked out in proof before a committee of the last Congress, that a single contractor residing in Massachusetts contributed $16,000 toward carrying the Pennsjdvania elections of 185G. The system is carried out in the State and City Governments. This has become so common in some of the States that all disguise is thrown aside, all offices are regularly assessed beforehand, according to their supposed lucra- iiveness, and when accepted it is with the distinct understanding that a speci- fied sum shall be annually contributed for carrying the elections. A single office in the gift of the Governor of Louisiana, which yields nine thousand dol- lars, it is credibly stated, is assessed at the enormous sum of three thousand dollars annually. This is probably much above the usual rates of taxation, on account of the extra lucrativeness of the office, yet the instance is illustra- tive of the searching diligence with which heavy taxation is enforced upon the officers, to the extent of their supposed capacity. A memorable instance is cited, and generally believed to prove, that offices can be bought from the 502 LETTEllS ON THE PRESIDENCY. » party by voluntary subscription to its corruption fund. The instance is that of a wealthy man of foreign birth, who, for a very large subscription, stipu- lated to receive, and upon the success of the party did actually receive, a spe- cified foreign mission, without any publicly known claim or pretension to the office, party or otherwise. It is said that voluntary contributions by those who are neither office-holders nor office-seekers for themselves, are so systematized as to give the contributors a share of the patronage, for the benefit of dependent relatives. The rapid subscription of three or four hundred thousand dollars by the moneyed men of New York, for the purpose of operating upon the last Presidential election in Pennsylvania and Indiana, has been accounted for in that way by persons claiming to be among the initiated. Those who obtained the subscriptions — upon what show of authority is not known — promised to subscribers the nomi- nation of an office of a particular grade in the custom-house or post-office, in the event of party success. No complaint has been made of the non-compli- ance with these engagements ; and the presumption is that the contributors have been compensated as promised. Whether these things be true or not, the general credence given to them as facts, shows the point to which, in public estimation, the election of President, with its attendant " spoils system," has brought, or soon will bring, the Gov- ernment. To appreciate the extent of the corruption, we need only look to the recom- pense which the perpetrators of fraud and violence at elections have received from dominant parties and their high officials. Look at the distinguished po- sition attained by men notoriously connected with the most infamous election frauds, and who are to be the probable recipients of still higher position. Look at the public reception given by a President of the United States to that infamous " Empire Club" of hireling foreigners, whose boast it was that they had secured his election by driving native citizens from the polls. The noto- rious captain of this gang of ruffians, who, the newspapers tell us, was brought back in irons from New Orleans to New York, under an indictment for felony, has been a stipendiary of the Government ever since that reception, holding lucrative office when his party is in power, and now enjoying an office of high responsibility and trust. ■ Thus was inaugurated the system of violence at elections under the auspices of the chief of a dominant party. Look at the immunity and countenance extended by one party to Know-nothing outrages at elections, and that extended by another party to the marauding usurpation of the government of Kansas, to say nothing of the efibrt to maintain the " Lecompton swindle," that grossest of election frauds. To appreciate the unscrupulous despotism of party, see a Northern Presi- dent, Senators, and Representatives, substantially affirming, by their official acts, that while Kansas had population enough to be admitted into the Union as a slave State, it had not half enough to be admitted as a free State. On the other hand, witness the Republican party in Congress refusing to permit the repeal of the tyrannical territorial legislation of Kansas, because the repeal, whilst it relieved the people of the Territory from oppression, would also relieve the Democracy from the odium of that legislation, and the e9"ort LETTERS ON THE PRESIDENCY. 503 to stop the Governmental supplies. "Witness the effect of party coercion upon such an enlightened, self-reliant statesman as Senator Hammond, who was compelled to vote for the " Lecompton swindle," whilst, as he has since con- fessed, he was fully convinced that it was saturated with fraud. Other Sena- tors were no doubt similarly coerced, but they have not had the manly candor to publicly confess the f;xct. AVitness also the conduct of both those parties in reference to the multifarious murders and atrocities of the civil war in Kansas, censuring or excusing them with an exclusive eye to their party bearing. If we needed an illustration of the extremes to which party spirit will drive men, let the atrocities of that civil war testif)-. Let us cease to wonder why the ballot-box has become the foul, polluted thing that it is. The publication of 1840 pi-edicted the advent of the " no distant day when all our elections will be settled by the purse." That day has already come. If our system of Presidential elections is kept up, the day is not distant when the heaviest taxation which property-holders will have to pay will be their contributions towards corrupting the elections. But there is the possihle, and, in the estimation of very many discreet, in- telligent men, ihc prohahle, coming of even a darker day than that. It is the day when the powers of the judioiai'y shall become part of the spoils of party victory. "Within the last twenty years the progressives have persuaded most of the States to throw their judicial offices into the corrupt scramble of the ballot-box ; and nearly all their judges are appointed by party conventions, — that, too, with an almost exclusive eye to the politics of the persons appointed. IIow long will it be before the managers of these conventions -wWl hunt for and find persons for these appointments who will use the powers of their offices for party benefit? Mr. Madison said, with the assent of all his hearers in the first Congress, that the President who should dare to turn out an officer on account of his politics would deserve and receive impeachment. Yet we see the point of corruption to which party contests have already brought the spoils system. Human nature affords no guarantee that the same corruption will not reach the administration of the law. Human nature, when under the influence of partyism, gives every reason to fear that the judicial, like the Executive, officers will gradually fall into the use of their powers for party purposes. Men of the first character and intelligence, within and without the legal pi'ofession, are affirming that this is not a mere prospective danger. They boldly affirm that the influence of party is already displayed injudicial decisions. Few men look for strict impartiality in a judicial decision upon any question involving party politics. If this be true now, it cannot be long before impartiality will cease wherever the private interests of an influential partisan are involved. A large majority of our elected judges are still no doubt far above party influence, but those who give sucli strong reason for believing that they judicially act unrisone(l not more than three years, or close imprisoned not more than one year. And whoever wilfully, maliciously, and l)y lying in wait, shall cut out, or disable the tongue, put out an eye, slit the nose, ear, or lip, or cut, or bite off either, cut oft', or disable any limb, or member of another, with intent, and on purpose to maim or disfigure such other, or while fighting, or other- wise, shall on purpose pull out, or put out, the eye of another, except in necessary self-defence, shall be confined in the peni- tentiary from two to ten years.* Section 7. "Whoever shall maliciously, by any means mani- festing a design to cause grievous bodily harm, attempt to cause such harm to any other jDcrson, whether such harm be caused or not, be confined in the penitentiary not more than three years, or imprisoned not more than one year, or fined not more than two thousand dollars, or both so fined and im- prisoned. Section 8. "Wlioever shall maliciously set or place, or cause to be set, or placed, any spring-gun, man-trap, or other engine, calculated to destroy human life, or cause grievous bodily harm, with intent that the same, or whereby the same may kill, or cause grievous bodily harm to any trespasser or other person coming in contact therewith ; or shall knowingly, and wilfully permit any such trap, gun, or engine which piay have been set, fixed, or left in any place in his possession, or occu- pation, to continue so set, or fixed in such place, shall be im- prisoned not exceeding six months, or fined not exceeding five hundred dollars, or both. Section 9. The last section shall not make it illegal to set any gun, trap, or engine, or to keep it set during the night- * M. and B. 12GC), the pecuniary part of the penalty j^iven by the statute is inappropriate, as the party injured has his civil remedy. The words, "except in necessary self-defence," are adopted on the authority of the act, M. and B. 12G8. 536 CRIMINAL CODE. time, in any dwelling, or other building, or in any vessel, where an entry cannot be obtained but by force or violence. Section 10. Any person who, with intent to procure the mis- carriage of any woman, shall wilfully administer to, or cause to be taken by her, without her knowledge, any poison or other noxious thing, shall be confined in the penitentiary for not more than two years, or imprisoned not more than one year. If any person aids a woman in any way in producing a mis- carriage, he shall be imprisoned not more than one year, and fined not more than five hundred dollars, unless such aid be rendered in good faith, with the intention of saving the life of the woman. Section 11. Wliere any white woman shall have been deliv- ered of a child, which, if born alive, would be a bastard, any person who, by any secret disposition of the dead body of the child, whether such child died before, at, or after its birth, shall endeavor to conceal the birth of such child, shall be im- prisoned not more than one year, and fined not more than a thousand dollars. (Appendix H.) Rape, etc. Section 12. Whoever shall unlawfully and carnally know any white woman against her will, and by force, or whilst she is insensible, shall be guilty of rape, and shall be punished by confinement in the penitentiary from ten to twenty years. Section 13. It is rape, although the woman consent to carnal knowledge, if such consent be given through fear of death or of grievous bodily harm. Section 14. A husband cannot be guilty of committing, by his own person, a rape on his wife ; but if another person com- mit the ofience, he may be liable as an accomplice, for aiding or abetting. But no person shall be deemed to be a husband where the woman shall have been compelled, or shall have been by fraud induced to go through the ceremony of a marriage ; and either such ceremony shall be a mere nullity, or the marriage shall, by reason of such compulsion or fraud, be declared to be void from the beginning, by a court of competent jurisdiction. Section 15. Whoever, by pretending to be the husband of . CRIMINAL CODE. 537 any married woman, or knowing that any married woman be- lieves him to be her husband, shall deceitfully and carnally know her, shall be punishable by not more than seven years confinement in the penitentiary. Section 16. Whoever shall unlawfully and carnally know and abuse any white girl under the age of twelve years, shall be punished as for a rape. Section 17. Whoever shall administer to, or cause to be taken by any white woman, any drug or other thing, with in- tent to render her insensible, or to produce in her an unnatural sexual desire, or such stupor as to prevent or weaken resist- ance, in order that, whilst in that state, he or any other may unlawfully and carnally know her, shall be imprisoned not exceeding two years. Section 18. If a man shall commit the crime of carnally knowing another man or any beast, he shall be confined in the penitentiary from three to ten years. Section 19. Any, the least degree of penetration, although there be no emission, sliall be sufficient to constitute carnal knowledge in the last-named offence, in rape, or in carnal abuse of a child. Section 20. "Wlioever shall assault any person with the in- tent to commit either of the three last-named crimes, shall be imprisoned not exceeding three years, or confined in the peni- tentiary not more than two years. Section 21. An infant under the age of fourteen years shall be deemed to be incapable, by reason of impotency, to commit by his person either of such three last-named crimes, or an assault with intent to commit either of them. Abduction, etc. Section 22. Whoever shall take away, or detain against her will, any woman, with intent to marry or carnally know her, or to cause her to be married or carnally known by any other person, shall be imprisoned for not more than two years, or fined not more than five thousand dollars, or both ; or confined in the penitentiary not more than three years. Section 23. Whoever shall unlawfully take, whether with or without her consent, any unmarried girl, less than sixteen years 68 538 CRIMINAL CODE. of age, out of tlie possession and against tlie will of her father, mother, or other person having the lawful custody and charge of her, shall be imprisoned for not more than one year, or fined not more than two thousand dollars, or both. Section 24. Whoever shall unlawfully lead, or take away, or decoy, or entice away, or detain any child, under the age of ten years, with intent to deprive the parent, or other person having the lawful care and charge of such child, of the posses- sion of such child, or with intent to steal any article upon or about the person of such child ; or shall, with any such intent, receive or harbor such child, knowing it to have been so taken or carried away, or detained, shall be confined in the peniten- tiary for not more than three years, or imprisoned not more than one year. But no person claiming, in good faith, to be the parent of such child, or to have right to its possession, shall incur such penalty. Section 25. Whoever shall maliciously send as prisoner, or carry any free person out of this State, or any negro who is asserting claim to freedom by suit brought, shall be confined in the penitentiary not more than three, or imprisoned not more than one year. And whoever shall, without leave of a circuit or county court, knowingly send or carry out of this State any slave who is entitled to freedom after the expiration of a time then to come, or upon the happening of some future event, shall be impri- soned from six to twelve months, and fined not more than five hundred dollars.* Section 26. "Whoever shall be guilty of any unlawful restraint of the liberty of another person, shall be imprisoned not more than one year, or fined not more than a thousand dollars, or both. Section 27. Whoever shall maliciously or negligently cause any bodily harm, or do any violence to another, shall incur the penalties of the last section. Section 28. It shall be justifiable to do or omit anything declared to be an off"ence in this article, where, if the act or * M. and B. 1293. CRIMINAL CODE. 539 omission had produced death, such death would be justifiahlc homicide within the provisions of this chapter, or where the killing would not have amounted to negligent homicide. Section 29. Whoever shall assault any other person, that is, attempt, offer, or menace by gestures, to cause any bodily liarm to such person, with the present ability to cause such harm, shall be imprisoned not exceeding three months, or fined not more than two hundred dollars, or both. APPENDIX TO CHAPTER XXI. A. The rule in the text contains, in a condensed form, the substance of the rules as given in the codes and by the different writers of authority. They all turn upon the words " necessary defence." Their explanation is made in the sub- sections, with the aid of all the codes, and as fully as the subject and reason- able brevity permits. Beyond the guides pointed out, the necessity of the defence used is unavoidably left to the determination of the court and jury. Mr. Macaulay, in his late brilliant history, thus appropriately treats the dif- ficulty of the subject : " What casuist, what law-giver, has ever been able nicely to mark the limits of the right of self-defence? All our jurists hold that a certain quantity of risk to life, or limb, justifies a man in shooting or stabbing an assailant ; but they have long given up in despair the attempt to describe, in precise words, that quantity of risk. It is to be regretted that the nature of words, and the nature of things, do not admit of more accurate legislation. But we cannot, on that account, interdict all self-defence." The Massachusetts Commissioners use the following appropriate language on this subject: "One is undoubtedly justified in forcibly defending his person and property against violence. It is not easy to preserve and vindicate the sacred right of self-defence, without permitting force that may endanger the wrong-doer. It is essential to effective forcible defence, that the party defend- ing should have the right to put the life of the wrong-doer in danger. This danger must be as great as is necessary to his own defence. It is utterh* be- yond the power of legislation and written law to provide and mark out before- hand what species and degrees of defence are necessary and proper in all pos- sible cases. This is unavoidably a question to be decided in each particular case." The section in the text, with its subsections, has carried the attempt to de- fine and explain the right of defence forther than is done in either of the codes. They all materially enlarge the right beyond the restricted limits prescribed by the common law. The purpose of the subsections is to prevent the enlarge- 540 CRIMINAL CODE. ment, by the use of general terms, from being carried beyond what was in- tended or deemed to be expedient. It is certainly of great importance that the extent of the right should be defined, as far as it is practicable to be done, without improperly impairing the right. It is believed that the text cannot be so misconstrued as improperly to impair the right. B. The first and third sections of Article IV, Chapter Homicide, are taken with- out material alteration from the English code, and are very similar to the rules in the Massachusetts code. They contain much the most important alterations in the law proposed by this act, and therefore deserve the serious and deliber- ate consideration of the Legislature. To aid in their consideration, it may be well to give the reasons of the English Commissioners in favor of the change. They say: " By the present law, the most grievous words of reproach, contemptuous and insulting language or gestures, or trespasses against lands or goods, will not free the party killing from the guilt of murder, if, upon such provocation, he make use of a deadly weapon, or otherwise manifest an intention to kill or to do some grievous bodily harm. But if he use a weapon not likely to kill, or give a blow merely, and unluckily and unintentionally kill, it will be man- slaughter only. These rules appear to us to be unreasonable when the prin- ciple is considered upon which extenuation is admissible, viz: the want of self-control occasioned by means which, according to the constitution of human nature, ordinarily produce this effect. " The reasoning of the India Commissioners on the subject seems to be de- serving of attention. They say : ' "We agree with the great mass of mankind, and with the majority of jurists, ancient and modern, in thinking that homi- cide, committed in the sudden heat of passion, on great provocation, ought to be punished, but in the general ought not to be so severely punished as mur- der. It ought to be punished in order to teach men to entertain a peculiar respect for human life ; it ought to be punished in order to give men a motive for accustoming themselves to govern their passions ; and in some few cases it ought to be punished with the utmost rigor. *' ' In general, however, we would not visit homicide, committed in violent passion, which has been suddenly provoked, with the highest penalties of the law. We think, to treat a person guilty of such homicide as we should treat a murderer, would be a highly inexpedient course — a course which would shock the universal feeling of mankind, and would engage the public sympathy on the side of the delinquent against the law. " ' Neither the English law nor the French code extends any indulgence to homicide which is the effect of anger excited by words alone. Mr. Livingston goes still farther: "No words, whatever," says the Louisiana code, "are an adequate cause, no gestures merely showing derision or contempt, no assault or battery, so slight as to show that the intent was not to inflict great bodily harm." " ' We greatly doubt whether any reason can be assigned for this distinction. It is an indisputable fact that gross insults, by word or gesture, have as great CRIMINAL CODE. 641 a tendency to move many persons to violent passion as danperous or painful bodily injuries; nor does it appear to us that passion, excited by insult, ia entitled to less indulgence than passion excited by pain. On the contrary, the fact that a man resents an insult more than a wound, is anything but a proof that he is a man of peculiarly bad heart. It would be a fortunate circum- stance for mankind, if every person felt an outrage whicli left a stain upon his honor more acutely than an outrage that had fractured one of his limbs. If so, why should we treat an offence produced l)y the blamablc excess of a feeling, which all wise legislators desire to encourage, more severely than the blamable excess of feelings certainly not more respectable ? " 'One outrage which wounds only the honor and the affections is admitted by Mr. Livingston to be an adequate provocation. A discovery of the wife of the accused in actual adultery is an adequate cause. The law of France, of England, and the Mahommedan law, are also indulgent to homicide committed under such circumstances. We must own that avc can see no rea- son for making a distinction between this provocation and many other prov- ocations of the same kind. We cannot consent to lay it down as an universal rule, that in all cases this shall be considered as an adequate provocation. Circumstances may be easily conceived which would satisfy a court, that a husband had, in such a case, acted from no feeling of wounded honor or affec- tion, but from mere brutality of nature, or from disappointed cupidity. On the other hand, we conceive that there are many cases in which as much in- dulgence is due to the excited feelings of a father or a brother, as to those of a husband. That a worthless, unfaithful, and tyrannical husband should be guilty of manslaughter for killing the paramour of his wife, and that an affec. tionate brother should be guilty of murder for killing, in a paroxysm of rage, the seducer of his sister, appears to us inconsistent and unreasonable.' " " It appears to us," further, say the English Commissioners, " that the prin- ciple of extenuated homicide, being ascertained to be the loss of self-control, arising from that human infirmity which is so general, and almost universal as to render it proper to make allowance for it in admeasuring punishment, it is expedient to leave this subject to juries, unfettered by arbitrary distinc- tions. According to the present law, there is some uncertainty as to the dis- tinct provinces of the judge and jury in such cases ; but the jur^' are precluded, in most cases, from considering whether particular circumstances have caused that loss of self-control which is natural to humanity. Some of the rules deny the benefit of extenuation in the very cases where human infirmity is most severely tried. At present, juries are often tempted to bring oases which manifestly fall within the principle of extenuation, also within it^ rule, by strained presumptions, or direct violations of their oaths." The India Commissioners also say, what is equally worthy to be quoted : "There is another class of provocations not allowed to be adequate in law, but which have been, and while human nature remains unaltered, will be, adequate in fact to produce the most tremendous effects. Suppose a person to take indecent liberties with a modest female in the presence of her father, her breather, her husband, or her lover. Such an assault might have no ten- dency to cause pain or danger; yet history tells us what effects have followed 542 CRIMINAL CODE. from such assaults. Such aa assault produced the Sicilian Vespers ; such an assault called forth the memorable blow of Wat Tyler. It is difficult to con- ceive any class of cases in •which the intemperance of anger ought to be treated with greater lenity. So far, indeed, should we be from ranking a man, who acted like Tyler, with murderers, that we think a judge would ex- ercise a sound discretion in sentencing such a man to the lowest punishment fixed by the law of manslaughter." The foregoing extracts must satisfy every one, that the law of manslaughter rests at present upon no consistent principle of justice or policy. That the few instances which it allows as sufficient to destroy self-control, are totally inadequate to cover the whole ground ; and by not allowing other provoca- tions of equal or greater force to cause a like extenuation, the law is rendered not merely intrinsically unjust, but also obviously inconsistent. Having set- tled, as all the authorities do, that the governing principle which extenuates wilful homicide into manslaughter is the indulgence which the law extends to the infirmity of human passion suddenly aroused, it is palpably absurd to limit the allowable provocatives to such passion, to a few enumerated par- ticulars. The injustice, inconsistency, and absurdity, are all the greater, when, as every one knows, the enumeration does not embrace but a very few of the highest possible means of human provocation, and that those not enumerated very far exceed in number and in gravity those which are speci- fied. Besides, what would be adequate provocation for one person, might not be so for another. Yet the common law not merely undertakes to settle what shall be adequate provocation to destroy self-control in any state of case, but, by its procrustian rule, undertakes to measure the susceptibility to ungovern- able passion in all persons by the one universal standard. Juries have, with the full sanction of public sentiment, for centuries been warring against and refusing obedience to such injustice, inconsistency, and absurdity. Legislators having for ages in vain attempted to make an en- lightened Christian public sentiment yield to the arbitrary injustice of the law, have at last condescended to make the law conform to the demands of justice and popular intelligence. That it has been proposed to the Parlia- ment of England is but another evidence, among very many, of the great ad- vantages the modern legislation of that country has derived by calling to its aid eminent legal ability, which can dare look beyond the sanctifying influence of mere time, and expose the folly and injustice of even immemorial law. When the master minds of Livingston and Macaulay came to grapple with the sanctified faults of the criminal common law, they were exposed with an intelligent daring deserving admiration and all praise. By the mere power of talent they have successfully assaulted them, even in their last great strong- hold, Westminster Hall. The venerable and thorough trained lawyers of England have yielded to the force of their reasoning and are now urging, upon Parliament the changes proposed by them. The adoption of the change recommended by the English Commissioners will produce no practical change of the law in Kentucky. It has always been administered here in the very spirit of the rules which they propose. Our juries have uniformly refused to be tied by unjust, arbitrary, legal CRIMINAL CODE. 543 dogmas. They have treated the whole sul)ject as a question of mere fact, to ho ascertained by the application of their own common sense, withfiut any restraint from legal rules. In doing so, they have had not only the approval of tlieir own consciences, but the undivided approbation of the communities in which they live. This is putting the law to a severe test ; it is exposing its injustice in a manner the most unanswerable. But after the juries, in obedience to their natural instincts, have thus brought about a practical change in the law, much to the horror of learned judges and prosecutors, we find a learned body of lawyers from old England, that land of blind subserviency to the law, be- cause it is the law, who tell us that our juries have all along been actin<' on the right principle with their usurped power, and that it is the law itself ■which has been wrong. The question for the Legislature to determine is, whether we shall longer continue the futile effort to make juries and public sentiment bend to the ar- bitrary injustice of the law, or whether the law shall not be made to accom- modate itself to the demands of justice and enlightened public sentiment. In other words, whether every principle of policy does not require tiiat the law and its practical administration should not be made to coincide in this parti- cular. As before remarked, no practical change is made in the law as it is now administered in Kentucky, and will be in all time to come. It is but volun- tarily conceding to the jury a power which they now usurp. It removes the necessity for the pernicious habit that juries have fallen into, of disregarding the law in criminal cases. The accused will still have to prove an adequate sudden provocation to destroy his self-control, and that he was acting under its immediate influence. Remove the necessity for the jury violating the law to get at the subject, and they will be more scrupulous in the proper exercise of a power directly conceded to them. At any rate, we have the most abun- dant reason to know that the matter cannot possibly be worse than it now is ; whereas, by the change, an unseemly blemish is removed from the law itself, and it may result that juries will become more observant of their duties and of the law, when they no longer have to trample on the law in order to attain justice. Heretofore many a case has met with impunity, because the jury would not treat it as murder, and the law would not permit them to treat it as manslaugh- ter. Under the new scheme of penalties for this latter offence now proposed, they will be much more apt than formerly to inflict some punishment. All will agree that some punishment is better than none. They will no longer have the salvo to their consciences in giving entire impunity, from the fact that it was indispensable to violate the law in order to do justice, and that whilst violating it in one particular, it was no great addition to the wrong to violate it in another. C. These two sections, which make killing by consent or in a duel extenuated homicide, are taken from the India and English codes, with the cxcnption of some additional guard against the abuse of the first rule. The Livingston code also says, that killing in a fair duel shall not be treated as murder. This 544 CRIMINAL CODE. seems to be but a necessary consequence of the other rule, which reduces kill- ing by the consent of the person killed to extenuated homicide. It is the consent given ■which takes away the turpitude of the offence in both cases. These changes in the law appear to be right, both on principle and policy. The following forcible reasoning of the India Commissioners is also adopted by the English Commissioners, in support of the rule concerning killing by consent : "The motives which prompt to the commission of this offence are very different from those which prompt men to the commission of murder. The soldier who, at the entreaty of a wounded comrade, puts that comrade out of pain ; the friend who supplies laudanum to a person suffering the torment of a lingering disease ; the freed man who, in ancient times, held out a sword that his master might fall on it ; the high-born native of India who stabs the females of his family at their own entreaty, in order to save them from the licentiousness of marauders, would, except in Christian societies, scarcely be thought culpable ; and even in Christian societies, would not be regarded by the public, and ought not to be treated as assassins. "Again, this crime is not productive of such evil to the community as mur- der. One evil ingredient of the utmost importance is altogether wanting to the offence of voluntary culpable homicide by consent. It does not produce general insecurity. It does not spread terror through society. When we punish murder with such signal severity, we have two ends in view. One end is, that people may not be murdered ; another end is, that people may not live in constant dread of being murdered. This second is perhaps the more im- portant of the two. For if assassination were left unpunished, the number of persons assassinated would probably bear a very small proportion to the whole population. But the life of every human being would be passed in constant anxiety and alarm. This property of the offence of murder is not found in the offence of culpable homicide by consent. No man will live in fear of a death to be inflicted only with his own consent. We know that two or three midnight assassinations are sufficient to keep a city of a million of inhabitants in a state of consternation dui'ing several weeks, and to cause every private family to lay in arms and watchmen's rattles. No number of suicides, or of homicides, committed with the unextorted consent of the person killed, could possibly produce such alarm among the survivors." In addition to this satisfactory reasoning, it may be remarked that the com- mon law could not consistently treat killing by consent as extenuated homi- cide, because it treated suicide itself as a felony, accompanied with a forfeiture of goods, and an ignominious burial of the corpse. Since our law has abol- ished suicide as a criminal offence, this reason no longer exists, and killing by consent can be treated on its own demerits, uninfluenced by any matter of policy for the prevention of suicide. Every killing by consent is a sort of suicide, and whilst it is allowed to be no criminal offence in one of the par- ties, it appears to.be manifestly unjust to treat it as the highest degree of crime in the other, and to be followed with the severest punishment known to the law. The change in the law of suicide, by a parity of reasoning, seems to require a change of the law, or a mitigation of the punishment for killing CRIMINAL CODE. 545 by consent. It would be preposterous to contend, on the score of justice or policy, that in either of the cases put by Mr. Macaulay, the offence shf.uld be visited with the same extreme punishment as that awarded for delibcrato assassination. This part of the law obviously needs reform, and it ia pre- sumed the Legislature will have no hesitation in making it. Much of the foregoing reasoning is equally applicable to homicide in a duel, when viewed on principles of justice alone. Every death in a duel is the result of a sort of consent given. The party allows himself to be shot at. It is his own voluntary act that places him in peril. He furthermore gives his consent for the sake of the privilege of himself perpetrating a crime at the same moment. The offender is not punished for the sake of the party injured, for he himself, by his own illegal act, forfeits all just claim to protection from the law. The punishment is, or should be, awarded mainly as a matter of public policy, and with a view to prevent an evil practice calculated to de- prive society of some of its highest ornaments and most valuable members. Public policy might justify death as the penalty, if the practice could thereby be broken up. We are all willing enough, as legislators, to award that, or any other penalty as matter of policy, and censure jurors for not enforcing the law. But it is doubted, whether there is one of us who, as a juror, would not shrink in the application to a particular case, of so severe a punishment as death. In the abstract no punishment seems too severe ; but when you come actually to apply hanging to a respectable member of society for an offence that has no turpitude in it, you revolt the sense of justice of all society, and with one acclaim the rigor of the law is denounced, and the acquittal of the accused demanded. There has never been an instance in England, or this country, of capital conviction for death inflicted in a duel, fairly fought. As Livingston says, " this proves how inefficient are all laws when opposed to public opinion." This is peculiarly the case in a country like ours, where public opinion constitutes nearly the whole force of the Government. It is that vigilant, cheap, unarmed police, which gives prompt and efficient aid to Government in rigidly punishing all crimes of turpitude, but which, with a nicer sense of justice than the law itself has heretofore displayed, paralyzes the Government in any effort to enforce an obviously too harsh, or an unjust penalty. By awarding death as the penalty for killing in a duel, the law has for centuries been blindly defeating its own purpose. It has not, by its threat, deterred offenders; and instead of punishing the offence, has actually accorded it the most perfect immunity from all punishment. This cannot be wise, there is nothing in it at all savoring of a sound policy. The English Commissioners say : " By abolishing capital punishment in cases of duelling, not only will a just objection be removed from the law for punishing the offence with death, without due discrimination between that offence and cases of murder, but a great stigma on our jurisprudence will be taken away, — that of having a very serious injury to society unropressed and unpunished, by reason of affixing a punishment for it, which is found im- practicable to be put in execution." When the offence is reduced to extenuated homicide, it can, in the discre- tion of a jury, be punished by confinement in the penitentiary, or by tine 69 546 CRIMINAL CODE. and imprisonment. Such punishment -we can well rely upon a jury to inflict. If it is inflicted, even in its mildest form, it must be more efficient in sup- pressing the practice than a penalty of death held up in mere terrorem, and which everybody knows is never to be enforced. But it is believed, that the penalty of even fine and imprisonment will prove most eflicient. A single case of only twelve months' imprisonment, and a few thousand dollars fine, will do more to suppress the practice than the mere idle threat of the law has accomplished in centuries. D. This definition of murder is taken from the English code. It is the same as that given in the India code, and substantially the same as that given in the Livingston code. The following reasons given by Livingston, for this mode of defining murder and rejecting the present definition, are cited with approbation, and adopted by the English Commissioners. They appear to be all-sufficient and conclusive. " If a clear idea has been given, in the preceding parts, of this chapter of the other descriptions of homicide, there can be no difficulty in forming one of murder that is not liable to error. An act of homicide occurs. Did the cir- cumstances justify it? Did they excuse it? Does it come within any of the descriptions of negligent homicide? Is it manslaughter? If either of these questions be answered in the affirmative, it cannot be murder. The advantage of this mode of description, over that of a simple definition is evident ; for should any words in the definition be liable to misconstruction, an act properly coming within the lower degree of that offence might be brought within the definition of the higher. The act of taking human life is the same in all. The attention should, therefore, if we mean to avoid error, be drawn to all the circumstances that would bring the act into a lower degree, before we inflict punishment for the highest. The form of the rule imposes this necessary obli- gation ; for there is no description of murder, other than that it is a homicide, which is not one of those before described. Now, take the English description of the crime, and see if the same result is produced. Coke's description of the crime is the one most generally sanctioned by decisions and commentators. It is this: 'When a person of sound memory and discretion unlawfully kill- eth any reasonable creature, in being, and under the king's peace, with malice aforethought, either express, or implied.' There is scarcely a word in this definition that, to a conscientious juror, might not afi'ord matter for serious doubt. The perpetrator must be of sound memory and discretion. What a scope does this give for equivocation? What a field does it open for inquiry? What has soundness of memory to do with the act? Be the faculty ever so imperfect, how does it affect the guilt ? And as to discretion, if a sound dis- cretion were necessary to constitute guilt, no one could be guilty ; for surely he commits the highest indiscretion, who takes away the life of another, and exposes his own to the consequences of detection and punishment. The kill- ing must also be unlaivful. Here we have one of the features of the descrip- tion contained in the code, but without the facility which it affords for deter- mining, by a few preceding pages, whether the killing be lawful. The person CRIMINAL CODE. 647 killed must be a reasonable creature, neither a new-born infant, nor an idiot, nor a madman, nor one suffering in the delirium of fever, or stupificd by opium, or liquor, comes within this part of the description according; to the plain meaning of the words. Again, who is the king's peace ? What is malice aforethought? Is there any malice that is afterthought? What is express malice ? When shall it be implied ? I am certainly aware that most of tlicse terms have been expounded by commentators, and illustrated by decisions, and that a recourse to the sources of information would teach us what con- struction the best lawyers and judges would put upon them, but still the evil recurs. There is no source to which we can look for the absolute certainty on which the conscience of a juror ought to rest, who is sworn to decide, and the definition given to him as the text of the law. He has a right to put the con- struction which his understanding adopts upon the words ; and there are cases in which the expositors themselves are not agreed, more especially as to what constitutes malice, express or implied, — the great pivot on which the definition turns, and one of which it is so difficult to form a definite idea, that I have purposely excluded it from the description of this offence in the code." This exterminating sort of criticism is not alone applicable to the definition of murder, but the learned jurist might, with equal success, have applied it to other common law definitions of crime. Nothing could more strikingh- illus- trate the necessity for a revision and codification of tlie comnmn law against crime, or the fatuity of blind adherence to a system of jurisprudence, which has to trust to its mere antiquity as its best defence. It also illustrates the truth of the remark of the English Commissioners, that " alterations are essen- tial, in order to render the criminal law of the country suitable to the present state of society, and conformable to the enlightened principles of jurisprudence. E. There is an unsettled dispute among codifiers, whether this offence is prop- erly classed as murder. The weight of authority is against it, but the weight of argument seems to be the other way. It has been thus arranged in defer- ence to authority, it not being deemed very material what is its classification, if the crime be appropriately punished. But there being doubt, whether it should be treated as murder, and there being no express legislative sanction for punishing any sort of perjury with death, it was deemed best to leave the discretion to the jury between death and long confinement in the penitentiary. Mr. Macaulay says, in his late history: "The old law of England, \\\\\A\ had been suffered to become obsolete, treated the false witness, who had caused death by means of perjury, as a murderer. This was wise and righteous; for such a witness is, in truth, the worst of murderers. To the guilt of shed- ding innocent blood, he has added the guilt of vitdating the moat solemn en- gagement into which man can enter with his fellow-men, and of making insti- tutions, to which the public look with respect and confidence, instruments of frightful Avrong and objects of general distrust. The jniin produced by ordi- nary assassination bears no proportion to the pain produced by assassination of which courts of justice are made agents. The mere extinction of life is a very small part of what makes an execution horrible. The prolonged mental 548 CRIMINAL CODE. agony of the sufferer, the shame and misery of all connected with him, the stain abiding even to the third and fourth generations, are things far more dreadful than death itself. In general, it may be safely affirmed, that the father of a family would rather be bereaved of all his children by accident, or by disease, than lose one of them by the hands of the hangman." F. Murder is thus divided into two degrees by the Massachusetts code: "Murder committed with deliberately premeditated malice aforethought; or in the commission of, or attempt to commit any crime punishable with death ; or committed with extreme atrocity or cruelty, is murder in the first degree. " Murder not appearing to be in the first degree is, that in the second." The Virginia statute says : " Murder by poison, lying in wait, imprison- ment, starving, deliberate and premeditated killing, or in the commission or attempt to commit arson, rape, robbery, or burglary, is murder in the first degree. All other murder is murder in the second degree." The statutes of several of the States contain similar provisions. The ap- parent objections to both these modes of division are, that by including " every murder committed with deliberately premeditated malice aforethought," or " murder by deliberate and premeditated killing," no division of murder is actually made into two degrees, but every murder must fall into the first de- gree. For deliberation, premeditation, and malice aforethought, are neces- sary to every murder, and a culpable voluntary homicide not accompanied by those indicia is merely manslaughter. Whilst, therefore, concurring fully in the policy of making two degrees of the crime, the first punishable by death, and the second by long confinement in the penitentiary, it seemed necessary to make the dividing line more distinct and explicit. The general terms used in the two specimens quoted, sufficiently indicate the legislative will, that there shall be a discrimination made between different kinds of murder ; but the terms used are so indefinite as to leave too much to the discretion of the jury in attaining the supposed legislative will. The division made in the Livingston code is liable to the same objection, but not to the same extent. It has been attempted in the text, by the third section of Article V., to obviate this objection by specifying, or more distinctly designating the cases to be treated as murder in the first degree. The specification and designation are so large, that they may render the effort obnoxious to the criticism, that few or no cases are left to fall within the second degree of murder. If this criticism be just, then the fault will be that the text leaves the law as it now is, without material change. But it is believed that the criticism is not just, and that there are many cases which will come within the second degree. Be this, however, as it may, all must agree that so important a matter should not be left to the loose discretion of the jury; and when the attempt is made by reducing the specification or designation to exclude cases from the first de- gree, it will be found very difficult to make any such reduction in accordance with public sentiment and justice. Even though the number of cases be small that will properly come within the second degree, still it is deemed very important that the distinction should CRIMINAL CODE, 549 be made. The act is framed throughout with a view to removing all necessity for the very bad habit, so prevalent in our State, of the jury making the law for the case, instead of administering the law as it is. This practice has grown up principally from the fact, that the law is what it should not be. It may be got rid of, by ceasing longer to persevere in the idle effort Ut make public sentiment bend to the law, and adopting the more rational plan of accom- modating the law to public sentiment. Past experience has abundantly proved that there are many cases which juries will not punish with death, though they come strictly within the definition of murder. They might punish those cases with confinement in the penitentiary, if permitted to do 80. Besides, the boundary line between murder and manslaugliter is so badly defined, and it is so impracticable to define itfcith precision, that the lowest penalty for the one ofi"ence ought to coincide with the highest ponalty for the other. It might sometimes enable a jury to agi'ee upon a verdict. G. The penalty for this offence is purposely so arranged as to give the jury a wide discretion. The great failure in the administration of our criminal law has been in the impunity given to this offence, and the kindred one of murder done to avenge personal insults and injuries. As there are various cases of murder which the jury would punish by confinement in the penitentiary, when they would not punish with death, so there are many cases of manslaughter for which they would fine and imprison the offender, but would not send him to the penitentiary. The latter mode of punishment carries with it a disgrace, not merely to the culprit, but to his relations also. Many a young man has been exempted from punishment, purely on the ground of the degradation which his confinement in the penitentiary would inflict on his parents, or other kindred ; whereas, if he could have been fined and imprisoned, which does not carry with it degradation to others, he would have been so punished. The efficacy of penalties in preventing crime depends much more upon the certainty of their infliction, than upon their severity ; especially when their enforce- ment depends upon the lax discretion of a jury. According to every principle of policy, some punishment is better than none. But imprisonment in a com- mon county jail is very far from no punishment to this class of offenders. Close imprisonment, it is believed, will be very efficacious. Since the Legis- lature has succeeded in nearly abolishing duelling, this class of men have undertaken to establish another sort of code, which authorizes each man to determine for himself what provocations he shall avenge by the death of a neighbor. The want of appropriate penalties, such as jurors will enforce, has brought this new code as much into vogue as duelling formerly was, and it is practised under with the same impunity. The most efficacious penalty against duelling ever devised, was the oath of office. So it is believed that fine and imprisonment will prove equally efficacious, or the most efficacious remedy against open-day-street murders and manslaughters. It is, at least, well wor- thy of a few years experimental test of its efficacy. We can suffer nothing by the experiment. This part of the law cannot be more inefficient than it 69 550 CRIMINAL CODE. now is. A man can, for the slightest provocation, shoot another down in the street with more certain impunity tlian he can steal from him a single dollar. For the latter offence he is very certain to be punished ; for the former he is equally certain to receive no punishment at all. But the great, unanswerable argument in favor of the change of penalty, is, that there is intrinsically such wide degrees of actual culpability in man- slaughter, that justice itself requires there should be an equally wide range for the discretion in fixing the penalty for each offence. That this discretion will be sometimes abused is very probable, but that is an unavoidable evil of the trial by jury, to which we must cheerfully sujjmit for the sake of its com- pensating benefits. But we can console ourselves with the reflection that it cannot be worse abused than j^now is, when the jury is allowed no discre- tion, and are directed to punish every manslaughter by confinement in the penitentiary. The preamble to our act of 1798 truly says: "Experience in all ages and countries hath shown that cruel and sanguinary laws defeat their own pur- pose, by engaging the benevolence of mankind to withhold prosecutions, to smother testimony, or to listen to it with bias ; and by producing, in many instances, a total dispensation and impunity ; when, if the punishment were only proportioned to the injury, men would feel it their inclination, as well as their duty, to see the laws observed." The proposed act has been framed with the view of better carrying out the spirit of this preamble, and testing, in a better manner than has heretofore been done, whether certain mild pun- ishment is not more efficacious than the uncertain enforcement of severe penalties. H. The Act of 1801, M. and B. 1268, punishes the mother alone for this offence, by confinement in the penitentiary from two to seven years, and contains no penalty against those aiding her in the concealment. The penalty is entirely too severe, and such as no jury could be induced to inflict, unless accompanied with well-grounded belief that the child was killed after birth. In that case the penalty is inappropriate, as the offence would have to be punished as mur- der. The law, in any aspect, is most harsh and rigorous. It is a reversal of the usual benevolent policy, which prefers that any number of guilty persons should escape, rather than that one innocent person should be unjustly pun- ished. It confounds all rational probabilities, and rashly presumes that in all, or a large majority of cases, the child is killed after birth, where its birth is attempted to be concealed by a secret burial. Or for an inadequate motive of policy, it confounds guilt and innocence, and recklessly punishes the inno- cent, in order that the guilty may not escape. There is no moral turpitude in endeavoring to conceal a woman's shame by the secret burial of an ubor- tion, or even of a child that dies immediately after birth. The impulse that leads to such concealment is natural and blameless. The thing usually occurs among the most ignorant of the ignorant ; among those who know least of the law. To convert it into a crime of so grave a character as to deserve seven years confinement in the penitentiary, seems to be a gross perversion of all CRIMINAL CODE. 551 principles of justice. The mother is little likely, from her if^noranoo, to know anything of the existence of a law which, under so harsli a penalty, cinpi-Is her uselessly to publish her shame. To infer cliiid-munlcr from the mere act of concealment, is against all fair and rational prubability. Possibly ninety- nine out of every hundred women would destroy the foetus before birth if they could ; but if the child is born alive, and the mother hears its cry, there is scarcely one in a hundred who would either kill or suffer it to be killed. If this conjecture even approximates the truth, if it be true even as to a consid- erable minority of such mothers, how cruel the law which so scverelv and recklessly punishes so many innocent persons for the sake of reaching those that are guilty. The deliveries of such mothers are those in which there is the least rational ground for presuming that the child was born alive. The previous mental dis- tress and effort at concealment are calculated to injure the foetus, or produce premature birth, and the want of the usual aid to cause the death of the child in giving it birth. The act of 1801 goes on the presumption that the child is born alive and killed after birth, merely because it is a bastard ; or at least, that in a very large majority of cases such are the facts, where the child is secretly buried. Without such presumption, there would not be even the sem- blance of justice or policy in favor of the law. The presumption being ob- viously irrational, the law must necessarily be unjust. It is an insufficient answer, to say that the penalty can be avoided bv not concealing the birth. Such an answer miglit be worth something if we were perfectly sure that the ignorant mother knew there was any such law. Every one is necessarily required to know what the law is. But tliis is a requirement very contrary to the actual fact. It is probable that a majority of the well- informed people of Kentucky are not aware of the existence of any such law. Hence, the great danger of perpetrating legal iniquity, in visiting even trivial faults with very heavy penalties, and the absolute certainty of doing so in cases like this, where tliei-e is no fault, no moral turpitude whatever, but tlie act is in itself perfectly blameless. If the act should be treated as an offence at all, the penalty prescribed in the text gives the jury ample power to punish it as severely as it can properly deserve. It has the merit, also, of being a penalty that may be enforced, whereas no Kentucky jury would ever enforce the other. THE END. (hf-^ ^..^.'A A: w*^' "'f^A/"'^' ^^(ck: