Yale University Library

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JOHN ARCHIBALD CAMPBELL

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JOHN ARCHIBALD
CAMPBELL
ASSOCIATE JUSTICE OF THE
UNITED STATES SUPREME COURT
1853-1861 BY
HENRY G. CONNOR, LL.D.
JUDGE OF THE UNITED STATES COURT FOR THE EASTERN DISTRICT
OF NORTH CAROLINA

BOSTON AND NEW YORK
HOUGHTON MIFFLIN COMPANY
THE RIVERSIDE PRESS CAMBRIDGE
1920

^YALEX

COPYRIGHT, 1920, BY HBNRY G. CONNOR
ALL RIGHTS RESERVES

\J w O # O 0

TO
MY "WIPE
KATE WHITFIELD CONNOR

PREFACE
In the preparation of the Annual Address delivered
by me before the Alabama State Bar Association at
its Session of 1917, at Birmingham, I became inter
ested in the professional and judicial life and serv
ices of Judge John Archibald Campbell. I was im
pressed with his relation to, and the part which he
took in, eventful cases and decisions as counsel and
Judge in the Supreme Court of the United States,
and his connection with several transactions of
national importance preceding and during the Civil
War. It seemed to me that, both for their historical
value and for a clearer understanding of the conduct
and motives of the participants, they called for a
more careful and thorough investigation than had
theretofore been given them.
Judge Campbell's career was, in many respects,
unique and illustrated his remarkable capacity to
render important service under unprecedented con
ditions. The generous manner in which the address
was received, coupled with the approval of the sur
viving members of Judge Campbell's family, en
couraged me to enter upon and complete the work
which is submitted in this volume. I am indebted to
the family for much of the material which I have
used. For the account of those incidents in regard to
which different versions have been given I have
relied upon, and to a large extent given the exact

viii PREFACE
language used in, the original manuscripts made by
him at the time of their occurrence. While, of neces
sity, the work is of special interest to lawyers, it is
hoped that, by reason of the general character and
larger scope of the questions involved in important
causes which he argued, or took part in deciding, it
will appeal to students of our judicial and political
history. I desire to express especial obligation to Captain
Frederick M. Colston, of Baltimore, son-in-law of
Judge Campbell, without whose constant assistance
and generous interest the work could not have been
executed. My thanks are also due for valuable sug
gestions to Mr. Carleton Hunt and Mr. William
P. Dart, of the New Orleans Bar, and to Captain
Samuel A. Ashe, of Raleigh, North Carolina.
H. G. Connor
Wilson, North Carolina
December 20, 1919

CONTENTS
I. Ancestry and Early Career at the Bar 1
II. Associate Justice of the Supreme Court
of the United States 16
III. The Slavery Question before the Court 54
IV. On the Circuit: Filibustering and the
Slave Trade 89
V. Efforts to avert Civil War 109
VI. Services to the Confederacy and Peace
Negotiations 149
VII. The Problem of Restoration 174
VIII. The Slaughter-House Cases and the
Fourteenth Amendment 204
IX. Last Years at the Bar 236
X. Personal Characteristics, Intellectual
and Social Traits 257
XI. Conclusion 278
Table of Cases 297
Index 301

JOHN ARCHIBALD- CAMPBELL

CHAPTER I
ancestry and early career at the bar
As early as 1729 several families of Scotch High
landers had settled on the Cape Fear River in North
Carolina. There they found a genial climate, a fertile
soil, and a mild and liberal government. Everything
contributed to their happiness and contentment.
Their letters to friends and relatives in Scotland
glowed with praise of their new home. Accordingly,
when Neill McNeill, who had been one of the first
Scotch settlers on the Cape Fear, returned from
a visit to Scotland, in 1739, he brought with him
three hundred and fifty Highlanders. The General
Assembly, anxious to encourage further immigra
tion of these sturdy settlers, exempted them from
public and private taxes for ten years and offered
the same inducement to any of their countrymen
who might follow them.
Following this liberal offer came the disaster of
Culloden, a general rise in rents in the Highlands,
and the harsh enactments of the British Parliament,
resulting in an immediate flow, strong and steady,
of population from the Highlands to the New
World. With a keen appreciation of its commercial
advantages, the Highland immigrants selected a
point of land at the head of navigation of the Cape

2 JOHN ARCHIBALD CAMPBELL
Fear, where they laid out a town, first called Camp-
bellton, then Cross Creek, afterwards Fayetteville.
The "Scots Magazine" and the "Courant" of that
period, contain numerous accounts of the sailing
of vessels, carrying a large number of Highlanders
to North Carolina, from Islay, Skye, Sunderland,
and other sections of the Highlands. Among other
Highlanders who came to Campbellton were Allen
McDonald and his wife Flora McDonald, both of
whom returned to Scotland, after the battle of
Moore's Creek Bridge.1
Though unfortunate economic conditions lay be
hind this emigration, it is not, therefore, to be sup
posed that those who left their native land to seek
homes in America belonged to an improvident and
thriftless class, or that they arrived in Carolina
empty-handed. Such people are not the kind who
voluntarily take upon their shoulders the task of
conquering the wilderness and laying the founda
tions of new States. The Highland emigrants were
among the most substantial and energetic people of
Scotland; they left the land of their nativity because
it did not offer them an outlet for their activities.
The "Scots Magazine" refers to some of them as
"the most wealthy and substantial people of Skye,"
and the "Courant" as the "finest set of fellows in
the Highlands." By the year 1754 the Highland set
tlement around Campbellton had grown so impor
tant that the General Assembly erected it into a
1 Wheeler, John H.: History of North Carolina, n, 126; Ashe, S.A.:
History of North Carolina, 1, 265-66; Sprunt, James: Chronicles of the
Cape Fear, 124-27.

ANCESTRY AND EARLY CAREER 3
county, which, with curious irony, was called in
honor of the Duke of Cumberland, and gave it the
privilege of sending two representatives to the Gen
eral Assembly.
As may be inferred from the name of their town,
the Campbells were both numerous and prominent
in the settlement. Among them was John Campbell,
whose son, John Archibald Campbell, served during
the Revolution as an officer in the American Army
on the personal staff of General Nathanael Greene.
Between the years 1779 and 1794 he represented
New Hanover County in the State Senate nine
terms and in the House of Commons three terms. He
was a delegate in the Constitutional Conventions of
1788 and 1789 from New Hanover. In the Conven
tion of 1788 he voted with the majority against the
ratification of the Federal Constitution. He was also
Judge of the Admiralty Court.1
Duncan Green Campbell, son of John A. Camp
bell, was born in North Carolina, February 17, 1787.
He was graduated from the University of North
Carolina in 1807. The following year he moved to
Georgia, where he engaged in teaching, becoming
president of a college for women. He studied law in
the office of Judge Griffin, of Wilkes County, and
was duly admitted to the bar. Soon after his admis
sion he was elected Solicitor-General of the Western
Circuit. Following his service in this office, he repre
sented Wilkes County for four terms in the State
Legislature. He was the author of, and introduced,
the first bill in the history of Georgia having for its
1 State Records of North Carolina, xvi, 90-95.

4 JOHN ARCHIBALD CAMPBELL
purpose the promotion of the education of women in
the State. His speech advocating the measure at
tracted wide attention and gave an impetus to pub
lic sentiment on the subject. In the cause of public
education he was an enthusiast and never omitted
an opportunity for its promotion. He was industri
ous in his habits, liberal in his views, and always
watchful of the public interests, especially of educa
tion and the diffusion of knowledge among the peo
ple. He was, for many years, a trustee of the Univer
sity of Georgia.1
In 1824 Campbell was appointed, by President
James Monroe, one of the commissioners to nego
tiate a treaty with the Creek Indians for the sale of
their lands in Georgia and Alabama. The negotia
tions, with the complications growing out of them,
became the subject of a long and bitter political con
troversy in Georgia. The question whether the course
pursued by the commissioners should be approved,
constituted the issue in the campaign of 1824, when
the rival candidates for Governor were Governor
George M. Troup and Campbell's brother-in-law,
General John Clarke.
Clarke's supporters attacked the conduct of the
commissioners and the treaty made by them. The
controversy placed Campbell in a very embarrass
ing situation. Throughout the campaign, although
he had more at stake in its issue than any man in the
State, he took no active part in the angry strife, and
while he continued the firm friend of General Clarke
1 Sparks, Jared: Library of American Biography; Miller, S. F.:
Bench and Bar of Georgia, 137.

" ANCESTRY AND EARLY CAREER 5
he lifted no voice in opposition or disparagement
of Governor Troup. "With Roman firmness he
awaited the decision of the people. Conscious of the
rectitude of his own conduct, he was fearless of con
sequences." 1
Governor Troup was elected and the commission
ers vindicated. The Legislature, by a unanimous
vote, approved their action, while Congress also
sustained the treaty.2
In 1828 Campbell was nominated for Governor.
His election seemed assured, but he died July 30,
1828, before the day of the election. His memory
is honored in the name of one of the counties of
Georgia. Duncan Green Campbell married Mary William
son, youngest daughter of Micajah Williamson,
Lieutenant-Colonel of the Georgia Regiment com
manded by Colonel Elijah Clarke, which became
famous in the annals of the War of the Revolution,
in the Southern Department. It is said that her
mother, Sarah Gilliam Williamson, grandmother of
John Archibald Campbell, "was perhaps the most
remarkable woman who lived in Georgia during the
Revolutionary struggle. Considering her loyalty to
the cause of the Colonies, her courage in managing
a plantation, with a large number of negro slaves,
during the absence of her husband at the front, her
sufferings at the hands of the enemy, together with
the success of her descendants, she stands ahead of
1 Sparks: Library of American Biography.
1 "Georgia and States' Rights," Report, American Historical
Association, n (1901), 55, 56-^59.

6 JOHN ARCHIBALD CAMPBELL
any of her Georgia sisters of that day. . . . Her five
sons grew up to be successful men and her six daugh
ters became beautiful, refined, and educated women,
becoming the wives of distinguished men. One
daughter married John Clarke, who became Gov
ernor of Georgia. To Sarah Williamson also belongs
the distinguished honor of being the first American
woman to furnish, from her descendants, two Jus
tices of the Supreme Court of the United States.
Justice John A. Campbell, of Alabama, was her
grandson, and Justice L. Q. C. Lamar, of Georgia
and Mississippi, was her great-grandson." Sparks,
writing of the early settlers of middle Georgia, in
the "Atlanta Constitution," says: "Those from
North Carolina were mostly the descendants of
Scotch-Irish; from them sprang Micajah William
son, Elijah Clarke, John Clarke . . . the Abercrombies,
Holts, and Duncan G. Campbell. These families and
these men, all were remarkable for energy, talent,
and enterprise, and, scattered through the counties
of middle Georgia, gave tone and emphasis to the
people and fashioned the future of the State. Many
of these and their descendants have filled the first
offices of the State and high places in the Gov
ernment of the United States through the long
period of their existence, without the imputation of
dishonorable conduct ever having been imputed to
them. Proud amongst these was Duncan Green
Campbell." 1
John Archibald Campbell, son of Duncan Green
Campbell and his wife, Mary Williamson Campbell,
1 Atlanta Constitution, January 10, 1910.

ANCESTRY AND EARLY CAREER 7
was born in Washington, Wilkes County, Georgia,
June 24, 1811. At the age of eleven years he entered
Franklin College, later the University of Georgia,
from which he was graduated in 1825, with the first
honors of his class. The following interesting inci
dent of his college life is given by Governor Gilmer
in "The Georgians": "While the son was a student
of the college, his father visited Athens and was in
vited to attend a meeting of the Demosthenian So
ciety, of which both father and son were members.
Colonel Campbell held forth, by request, upon the
topic of debate. When he was done speaking, John
asked leave to answer the gentleman, and so
knocked all his father's contentions into non sequi-
turs that it was difficult to tell which had the upper
most in the father's feelings, mortified vanity or
gratified pride."
Upon his graduation, Campbell was appointed by
the Secretary of War, John C. Calhoun, to a cadet-
ship in the United States Military Academy at West
Point. By reason of his father's death he resigned in
1828. He spent a year in Florida, teaching school to
enable him to discharge the responsibilities imposed
upon him by his father's death. Returning to Geor
gia, he studied law with Governor Clarke and his
uncle, John W. Campbell. In 1829, at the age of
eighteen, by virtue of a special act of the General
Assembly, he was admitted to the bar, together with
Robert Toombs. Determined to leave Georgia,
Campbell went to Montgomery, Alabama, where,
on March 9, 1830, he was admitted to the bar of
that State. He continued to practice his profession

8 JOHN ARCHIBALD CAMPBELL
in Montgomery until 1837, when, desiring a larger
field for his chosen life-work, he removed to the city
of Mobile.
While residing in Montgomery, Campbell mar
ried Anna Esther Goldthwaite. A native of New
Hampshire, she had accompanied her brothers,
Henry and George Goldthwaite, to Alabama during
the early years of the nineteenth century. The Gold
thwaite family was established in Massachusetts as
early as 1630. Mrs. Campbell's father and grand
father were both Colonial officers in New England,
and, during the Revolution, remained loyal to the
mother country. During the war they went to Eng
land, where her grandfather, Colonel Thomas Gold
thwaite, received from the British Government com
pensation for his service and loyalty, and for the loss
of his large estate in New England. He lived at Wal-
thamstow, near London, where his father had also
lived. The brothers whom Anna Goldthwaite accom
panied to Alabama became eminent members of the
bar of Alabama and won high repute in the service
of the State. Both Henry and George Goldthwaite
were Justices of the Supreme Court, the latter being
Chief Justice and, from 1870 to 1877, United States
Senator.1 In an address before the Alabama State Bar As
sociation, in 1884, Judge Campbell, referring to his
early career in Alabama, said: "I continued to prac
tice without relaxation or diversion in her courts;
relations and habits, whether professional, domes-
1 Appleton's Cyclopaedia of American Biography, n, 673.

ANCESTRY AND EARLY CAREER 9
tic, or political, were formed in her society. Char
acter, capacity, motives for exertion or for action,
were developed and expanded there; and as one
product and result, there is an abiding love for the
State, for the law as a science and a profession, and
an interest in her judicial institutions and in the
members of her State Bar. . . . The courts were ad
ministered by men of learning and apt judgment;
and their deeds and words were marked with the
impress of moral and intellectual worth, and of per
sonal honor. There were among the Bar great re
sources of energy, research, readiness, and manli
ness of effort which were habitually applied."
In 1836 Campbell was elected to the State Legis
lature. This was regarded, in those days, as an es
sential step in the preparation of a lawyer for a
larger sphere of activity in his profession. In 1842 he
represented the city of Mobile in the Legislature.
"At this time he was generally regarded as a man of
clear and vigorous intellect. In the Legislature he
stood foremost among the leaders. On important
occasions, his powers were exhibited with a cogency
of argument which commanded a degree of atten
tion which was accorded to but few members. In the
Supreme Court, if not without a rival, he had no su
perior. His facts were stated in such a natural order
and logical connection that the truth was illuminated
and the judgment usually convinced." 1
His personal appearance and manner, at this pe
riod of his life, are thus described by Mr. Miller:
"He is cold, taciturn, not the least suggestion that
1 Miller, S. F.: Heads of Alabama Legislature.

10 JOHN ARCHIBALD CAMPBELL
he courts society, absorbed in thought, with heavy
brow, yet unassuming expression of countenance.
At times he is pleasant, and always respectful when
it becomes necessary for him to converse. ... He
seems to hold all elegance and imagination in utter
contempt, as unworthy a practical man. As a mem
ber of the Democratic Party, he stands alone in
Alabama for greatness of conception in all that re
lates to our political system." x
While Campbell's experience in the Legislature
was unquestionably valuable to him in his career,
his title to fame rests not upon his accomplishments
as a lawmaker, but as an advocate and jurist. He
used wisely the opportunity afforded him during
these years, building upon strong and broad founda
tions the structure upon which judicial and profes
sional fame, later in life, came to him.
When he moved to Mobile the titles to lands
in Alabama were unsettled and complicated. The
Spanish grants were obscure, the surveys not exact,
and the growth of Mobile was rapidly increasing the
value of lands in the town. He began the study of
the French and civil law, purchasing the works of
the standard authors. In his library were found the
complete works of D'Auguessau, Merlin, Denisant,
Cocklin, and others. As a student he was vigorously
severe and industrious, prompted by a quenchless
thirst for thorough and complete information.
During the first years of his practice he spent
an hour each week-day in the study of Saunders's
Pleading, reproducing the forms of declarations and
1 Bench and Bar of Georgia, 137.

ANCESTRY AND EARLY CAREER 11
pleas and eliminating all unnecessary words. His
ambition was not in the line of political preferment,
but in professional learning.
In the Supreme Court of Alabama, and on the
dockets of the Circuit Courts in which he practiced,
is to be found the record of his labors. Evidence of
the loyalty with which he paid court to the jealous
mistress of which, as he says, "without relaxation or
diversion" he was the suitor, is likewise found in his
opinions, in the reports of the Supreme Court of the
United States, and in his arguments before that tri
bunal, both before and subsequent to his elevation
to the Bench and retirement. He argued, at the De
cember Term, 1850, of the Supreme Court of the
United States, Collins vs. Hallert.1 At the December
Term, 1851, he had six appearances, the most im
portant, in point of the interests involved and the
questions presented, being Gaines vs. Relf, Exr., and
others.2 He appeared in this case in the Circuit
Court of the United States, where his argument elic
ited very high praise. It was published in full by the
¦New Orleans papers. His analysis of the testimony,
orderly arrangement, quotation and application of
authorities, from writers on the civil law, and de
cided cases, American and English, sustain the en
comiums pronounced by those who heard him.
One of the New Orleans dailies said: "A large as
semblage filled the court-room, called as well by the
deep interest felt in this very novel and extraordi
nary case, as by the fame of the gentleman appointed
to speak. Their expectations were fully gratified.
i 10 Howard, 174. ! 12 Howard, 472.

12 JOHN ARCHIBALD CAMPBELL
The argument of Colonel Campbell was one of the
ablest efforts we have ever heard. It was terse, logi
cal, learned, profound, and eloquent. All the im
portant points in favor of Mrs. Gaines's claims were
urged with an irresistible force of logic, a clearness
of style, and a vigor of thought that seemed to carry
conviction with all the listeners and greatly to star
tle the defendants, who have all along reposed very
confidently on the strength of their case."
Following his argument the same paper said:
"The name of this distinguished gentleman is heard
on every side, and appears to be in the mouths of
every one. His wondrous argument in the great
Gaines case has all but immortalized him, so lucid,
forcible, and convincing was it. . . . Mr. Campbell
has reaped the field clean and garnered up for him
self a rich harvest. ... A merchant, whose business
was pressing, who desired to be on 'Change at a cer
tain hour, thought that he would drop into the
United States Circuit Court for a moment — only a
moment — to hear a few words of Campbell's argu
ment and then form a hasty opinion of the gentle
man. He did so — moments passed, hours, and still
he moved not until the close. He has since declared
that he became unknowingly interested in the case
as the gentleman progressed, until so infatuated was
he with his elucidatory style, brilliant and compre
hensive pleading, that he could not tear himself
away." A stranger who was present wrote: "Among the
arguments was one by a lawyer from Mobile, by the
name of Campbell. He had made the most ample

ANCESTRY AND EARLY CAREER 13
preparation, and in the most ingenious way threaded
the Cretan labyrinth of facts and testimony, holding
on, as he went, to the clue of justice. Upon his reap
pearance from the mazes and windings of his argu
ment, we could not help, though a stranger, tender
ing him our congratulations. They were received
with all that modesty which will ever characterize
talents." This cause ceUbre in American jurisprudence was
argued before the Supreme Court of the United
States by Reverdy Johnson and Campbell for Mrs.
Gaines, and by Daniel Webster, Green, and Duncan
for Relf and others.1 The opinions of Justice Catron,
writing for the majority against the claim of Mrs.
Gaines, and of Justice Wayne for the dissenting
minority, occupy forty-two pages of the volume.
The latter concludes his opinion: "I think, then,
that I run no risk in saying that there is nothing in
the way of the law to be found interfering with the
right of Myra Clark Gaines to the heirship of such
portion of her father's estate as the law of Louisiana
gives to an only legitimate child. . . . Those of us
who have borne our part in the case will pass away.
The case will live. Years hence, as well as now, the
profession will look to it for what has been ruled
upon its merits and also for the kind of testimony
upon which these merits were decided. The majority
of my brothers who give the judgment stand, as
they may well do, upon their responsibility. I have
placed myself alongside of them, humbly submitting
to have any error into which I may have fallen, cor-
1 12 Howard, 427.

14 JOHN ARCHIBALD CAMPBELL
rected by our contemporaries and by our profes
sional posterity. The case itself presents thought
for our philosophy in its contemplation of all the
business and domestic relations of life."
Judge Campbell's argument won much applause
for its display of learning, legal acumen, and all the
higher and more ambitious qualities of his profes
sion. The language of Justice Wayne was prophetic.
Ten years later the controversy in another form, in
volving, however, the same questions that were pre
sented and argued on the first hearing, found its way
to the Court in Gaines vs. Hennin.1 Justice Wayne,
writing for the majority, reversed the conclusion
reached in the former appeal and sustained the con
tention of Mrs. Gaines. He concludes his opinion:
"Thus, after a litigation of thirty years, has this
Court adjudicated the principles applicable to her
rights in her father's estate. They are now finally
settled. When, hereafter, some distinguished Ameri
can lawyer shall retire from his practice to write
the history of his country's jurisprudence, this case
will be registered by him as the most remarkable in
the records of the courts."
But the end was not yet. The litigation went on
in varying and variant forms. Seven years later,
in Gaines vs. New Orleans,2 Justice Davis, Justice
Wayne having passed away, wrote for the Court, ex
pressing the hope that the litigation would be closed
by the decision then made. He said: "It has been
pursued by the complainant with a vigor and energy
hardly ever surpassed, in defiance of obstacles
1 24 Howard, 615. * 6 Wall. 642.

ANCESTRY AND EARLY CAREER 15
which would have deterred persons of ordinary
mind and character, and has enlisted, on both sides,
at different periods, the ablest talent of the Ameri
can bar. . . . Courts, in the administration of jus
tice, have rarely had to deal with a case of greater
hardship or more interesting character. . . . Can we
not indulge the hope that the rights of Myra Clark
Gaines in the estate of her father will now be recog
nized?" Although Mrs. Gaines had, in many of the numer
ous trials, won victories, she was required to estab
lish on each hearing the determinative facts upon
which her right to her father's estate depended. In
the final opinion, the Court was required to reex
amine the testimony which Judge Campbell ana
lyzed and discussed in 1851, and reached the final
decision by the same processes of reasoning pursued
by him before the Circuit Court in New Orleans.
Judge Campbell's last appearance in the Gaines
case is reported in New Orleans vs. Gaines, Admr.1
It is a source of regret that, in response to the
suggestion of Justice Wayne, "some distinguished
American lawyer retired from practice," has not
written a history of this most interesting case, which
not only bristles with incidents illustrative of the
controlling passions and philosophy of all the busi
ness and domestic relations of human life, but also
presents principles of civil, ecclesiastical, common
and statute law, both State and Federal, illumi
nated by citations from almost every source.
i 131 U.S. 191. ,

CHAPTER II
ASSOCIATE JUSTICE OF THE SUPREME COURT OP THE
UNITED STATES
Campbell's reputation as a lawyer had extended
beyond the limits of the State. He held a high posi
tion in the estimation of the Justices of the Supreme
Court of the United States, and it was inevitable
that sooner or later he would be called into the judi
cial service of the State or Nation. In 1835, while he
was serving a term in the General Assembly, he re
ceived from Governor Clement C. Clay the offer of
an appointment to the Supreme Court of Alabama.
This offer he felt it his duty to decline. Later a simi
lar offer was made by Governor Henry W. Collier,
which he declined. On January 19, 1852, Justice
McKinley, of the Supreme Court of the United
States, died. President Fillmore nominated to the
vacancy George E. Badger, Senator from North
Carolina. There was no question regarding Mr.
Badger's learning, ability, and fitness for the posi
tion, but his attitude in the Senate on the slavery
question during the sessions of 1850 and 1852 pre
vented his confirmation by the Senate. Accordingly,
the vacancy had not been filled when Franklin
Pierce was inaugurated President, March 4, 1853. 1
1 For an interesting account of Mr. Badger's nomination see
Papers of Thomas Ruffin, n, 365, 382, 389. Mr. Venable, a member
of Congress from North Carolina, says Mr. Badger's nomination
failed because he did not live in the district from which Justice
McKinley came, and for that cause alone.

JUSTICE OF THE SUPREME COURT 17
Upon the request of the members of the Supreme
Court of the United States, President Pierce nom
inated Campbell, who, on March 22, 1853, was
unanimously confirmed to fill the vacancy. In a
memorial address delivered before the Bar of the
Supreme Court, October 13, 1874, Judge Campbell
said: "The death of Judge McKinley made a va
cancy and that vacancy was supplied by one recom
mended by the Justices — Judges Catron and Curtis
bearing their letters of recommendation to the
President." 1
Mr. Carson, referring to the appointment, says:
"He was a profound and philosophic jurist, who
gave vigor and breadth to his intellect by constantly
resorting to the great sources of the Roman law.
From 1837 to 1853 the story of his life was the rou
tine of an industrious, painstaking, earnest lawyer,
exploring every domain of knowledge to make it
tributary to his profession, overpowering his com
petitors at the bar by his great researches into the
history of the law and his familiarity with principles
and cases." 2
The "New York Times," commending the ap
pointment, said: "His professional learning is said
to be vast and his industry very great. Outside his
profession he is most liberally cultivated and, in this
respect, ranks beside Story. . . . His mind is singu
larly analytical. Added to all, and crowning all, his
perfect character is of the best stamp, modest, amia
ble, gentle, strictly temperate, and inflexibly just."
1 20 Wallace, ix.
2 Carson, H. L.: The Supreme Court of the United States, 350.

18 JOHN ARCHIBALD CAMPBELL
The appointment met with the general approval
of the public and the profession.
, Mr. Badger, in the Senate (1854), advocating a
bill increasing the compensation of the Justices, thus
refers to Judge Curtis and Judge Campbell: "The
two Juniors of the Court, from the extreme points
of the Union, North and South, men of the highest
character for learning, for integrity, for talent, for
judicial propriety and decorum; men who have been
placed upon the Bench with the prospect of having
a long career of usefulness to their country and of
honor for themselves, men led by a natural and hon
orable ambition, by a just professional pride, ele
vating them above sordid considerations, to accept
a position, the compensation of which does not ex
ceed the fourth of what their profession would have
produced and would have continued for many years
to have produced for them."
In his eulogy of Justice Curtis, pronounced before
the Bar of the Supreme Court in 1875, Judge Camp
bell gives his estimate of the personnel of the Court
at the time of his appointment. Referring to the
manner in which Judge Curtis was called to the
Bench, he said: "The appointment came to him. He
was not required to pursue or to beseech it. It came
to him by a divine right — as the fittest. The Court
was presided over by Chief Justice Taney, who had
established, to the acknowledgment of all, that his
commission was held by the same title. He was then
seventy-three years of age, bowed by years and in
firmity of constitution. In the administration of the
order and procedure of the Court, there was dignity,

JUSTICE OF THE SUPREME COURT 19
firmness, stability, exactitude, and, with these, be
nignity, gentleness, grace, and right coming. The
casual visitor acknowledged that it was the most
majestic tribunal of the Union, and that the Chief
Justice was the fittest to pronounce in it the oracles
of justice. All of the Justices had passed the merid
ian of ordinary life before their Junior Associate had
come to the Bar. There was much stateliness in
their appearance, and, with diversities of character,
education, discipline, attainments, and experience,
all of them had passed through a career of honor
able service, were men of large grasp of mind and
honorable purpose. . . . Their deliberations were
usually frank and candid. It was a rare incident . . .
when the slightest disturbance, from irritation, ex
citement, passion, or impatience, occurred. There
was habitual good-breeding, self-control, mutual
deference, in Judge Curtis, invariably so. There was
nothing of cabal, combination, or excitement, or ex
orbitant desire to carry questions or cases. Their
aims were honorable, and all the arts employed to
attain them were manly arts." x
Could there have come to a lawyer, who had de
voted the early years of his life to the science of the
law and pursued "without relaxation or diversion"
the gladsome light of jurisprudence, a richer re
ward, bringing higher gratification of an honorable
ambition, than the call to join this goodly company,
to become a co-worker with them in administering
justice in one of the highest judicial tribunals of the
world? Richmond M. Pearson, afterwards Chief
1 20 Wall. ix.

20 JOHN ARCHIBALD CAMPBELL
Justice of North Carolina, who was, by hard work
and unrelenting study, laying the foundations upon
which he built his fame as one of the great common-
law judges of the country, said when a young man
that his ambition was to go upon the Supreme Court
Bench and "rub up against Ruffin," who, without
dissent, is conceded to have been North Carolina's
greatest Chief Justice. We may well conceive that a
similar vision came to Judge Campbell, when, for
twenty years, he was imbuing his mind with the
principles of the common law and mastering the
writings of the jurists of the civil law. When Judge
William Gaston, of North Carolina, was offered the
United States Senatorship, he put it away from him,
saying, "To administer justice in the last resort, to
expound and apply the laws for the advancement of
right and the suppression of wrong, is an ennobling
and, indeed, a holy office, and the exercise of its
functions, while it raises my mind above the mists of
earth, above cares and passions, into a pure and
serene atmosphere, always seems to impart fresh
vigor to my understanding and a better temper to
Lmy whole soul." To a lawyer inspired with this no
ble ambition, wealth, political position, and power
count nothing when compared with the opportuni
ties for service which the judicial office brings.
Judge Campbell performed his full share of the
work of the Court of which he had become a mem
ber. It is difficult for one who has not taken part in
the deliberations and discussions of the conference
room of a court of appeals to place a proper value on
the personal and judicial, mental, and moral quali-

JUSTICE OF THE SUPREME COURT 21
ties of each member of the Court, or to estimate his
influence in aiding his associates in coming to a con
clusion, moulding the form which the opinion takes,
giving expression to the thought and mental proc
esses by which the conclusion is sustained. The
work of a judge, therefore, can best be understood
and estimated by a careful study of his own and the
opinions of his associates. It is impossible, except to
a limited extent, to do more than refer to the most
important opinions written by Judge Campbell.
Reference to some of the most notable will enable us
to estimate the quality of his judicial work, his
method of labor, style of expression, the extent of
his research and cogency of reasoning.
At the first term at which he sat, December, 1853, -j
the case of The Executors of John McDonogh vs.
Mary Murdock and others, heirs at law, was argued j
by Robert J. Brent, Henry May, and William H.
Hunt, for the appellants, and by Reverdy Johnson
and Judah P. Benjamin for the appellees. Judge
Campbell, writing the opinion, expressed acknowl
edgment of the aid received from the able argu
ments at the bar and from the profound discussions
in the Supreme Court of Louisiana. The case in- 1
volved the validity of the holographic will of John
McDonogh, who, domiciled in Louisiana, died with
out children, devising a valuable estate in trust for
the establishment and maintenance of several pub
lic charities. He directed that his estate should be
held by trustees in succession to effectuate his pur
poses, as declared in his will; that, after execution
of several specific trusts, the balance of his estate

22 JOHN ARCHIBALD CAMPBELL
should be invested, and the income applied to the
education of the poor children, without regard to
caste or color, in the cities of New Orleans and Balti
more, "the whole of the general estate to form a
fund, in real estate, which shall never be sold or
alienated, but be held and forever remain sacred."
A number of difficult and interesting questions
were presented and argued with elaborate prepara
tion, distinguished ability, and a wealth of learning.
The reporter states that the opinions of a number of
eminent French jurists were taken and relied upon
in the argument. Judge Campbell states clearly the
objects and purposes of the testator, as set out in his
will, saying: "The exaggeration which is apparent
in the scheme he projects, and the ideas he expresses
concerning it, afford the ground of the argument for
the appellees. It is, however, unfair to look to the
parts of the will which relate to the disorders which
prevail in society, or to the aspirations of the testa
tor to furnish relief for those 'during all time,' or to
the prophetic visions awakened by the exalted and
exciting ideas which dictated the conditions of the
will, for the rule of its interpretation. We must look
to the conveyances he has made in the instrument,
the objects they are fitted to accomplish, and the
agencies, if any, to be employed, and endeavor to
frame these into a consistent and harmonious plan,
accordant with his leading and controlling inten
tions." Judge Campbell traces the sources and history of
Roman jurisprudence, upon which that of Louisiana
is founded, quoting from the codes and the writ-

JUSTICE OF THE SUPREME COURT 23
ings of the great jurists of the civil law, for the pur
pose of interpreting the provisions of the Louisiana
Code, prohibiting substitutions and fidei commissa,
by which the trustee named could substitute an
other to take his place, thus continuing the trust in
definitely, saying: "The terms are of Roman origin
and were applied to modes of donation by will, com
mon during its empire, and from thence were trans
ferred to the derivative system of law in use uponj
the Continent of Europe."
After an interesting history of the method re- i
sorted to for building up and continuing in families
and corporations large estates and their accumula
tions, he says: "This mode of limiting estates from
degree to degree, and generation to generation, was
much employed on the Continent of Europe, and
served to accumulate wealth in a few families, at
the expense of the interests of the community. The
vices of the system were freely exposed by the po
litical writers of the last century, and a general
antipathy excited against it. Substitutions having
this object were prohibited during the Revolution
in France, and that prohibition was continued in the
Code Napoleon, whose authors have exposed, with
masterly ability, the evils which accompanied them.
The prohibition was transferred to the Code of Lou- j
isiana." He reaches the conclusion that the prohibition
does not extend to municipal corporations, or to
trusts "for lawful and honorable purposes, or for
public works, or for other objects of piety or benevo
lence." The opinion vindicated the wisdom of the

24 JOHN ARCHIBALD CAMPBELL
Justices of the Supreme Court in asking his appoint
ment and the President in making it. It contains a
mine of learning upon one of the most interesting
and important questions in our chancery jurispru
dence, derived from the civilians and the Statute of
43d EHzabeth, as appfied to American conditions. It
is a monument in the course of judicial decisions in
this country, upholding and administering charities
created and contributed to by men and women of
wealth, large vision, and humane sympathies.1
At the same term a case was decided involving
the title to valuable property and the interests of
the members of the Methodist Episcopal Church.
The litigation grew out of the division in the thought
and conviction of the members of the Church resid
ing in the Northern and Southern sections in regard
to the institution of slavery. It was argued by Henry
Stanbery, of Ohio, George E. Badger, of North
Carolina, and Thomas Ewing, of Ohio. The cause of
the separation was well understood, but was not re
ferred to in the opinion of Justice Curtis, who wrote
for a unanimous court, sustaining the contention of
the Southern branch of the Church.2
It was also decided at that term that "Morse was
the first and original inventor of the electro-mag
netic telegraph for which a patent was issued to him
in 1840 and reissued in 1848." 3 Salmon P. Chase
was of counsel for the plaintiff, George Harding for
the defendants. There was a difference of opinion
among the Justices upon some of the claims.
1 15 Howard, 564. 2 Smith vs. Swormstedt, 15 Howard, 288.
8 O'Reiley vs. Morse, 15 Howard, 62.

JUSTICE OF THE SUPREME COURT 25
In Winans vs. Denmead, decided at the same
term,1 involving the alleged infringement of the pat
ent issued to Ross Winans for the invention of the
"drop bottom coal car," the general form of which is
now in common use, the claim of Winans was sus
tained in an opinion by Judge Curtis. Judge Camp
bell, in a dissenting opinion, in which the Chief Jus
tice and Judges Catron and Daniel concurred, said:
"To escape the incessant and intense competition
which exists in every department of industry, it is
not strange that persons should seek the cover of the
Patent Act for any happy effort of contrivance or
misconstruction; nor that patents should be very
frequently employed to obstruct invention, and to
deter from legitimate operations of skill and indus
try. This danger was foreseen and provided for in
the Patent Act. . . . Nothing in the administration
of this law will be more mischievous, more produc
tive of oppressive and costly litigation, of exorbi
tant and unjust pretensions and vexatious demands,
more injurious to labor, than a relaxation of these
wise and salutary requirements of the act of Con
gress." In this opinion we find the first indication of
Campbell's hostility to monopolies and the begin
ning of his long and ably maintained opposition to
them in their manifold forms.
In an interesting history of the case of Burr vs.
Duryee,2 Albert H. Walker, in his sketch of George
Harding, thus refers to the case of Winans vs. Den
mead: "When that case was argued two young Jus-
1 15 Howard, 330. 2 1 Wall. 531.

26 JOHN ARCHIBALD CAMPBELL
tices of great ability had lately come upon the Bench.
These were Justices Curtis, of Massachusetts, and
Campbell, of Alabama. Justice Curtis delivered the
opinion of five Justices in terms which were con-
struable as affirming the patentability of the opera
tion of a mechanical apparatus. Justice Campbell
delivered the opinion of four Justices vigorously con
troverting the opinion of Justice Curtis and the con
sequent conclusion of the Court. The development
of the science of the patent law, which has occurred
since 1853, has logically established the unsound
ness of the opinion of the five Justices."
Mr. Harding wished to have the decision in
Winans vs. Denmead, upon which complainant in
Burr vs. Duryee relied, reversed. Three of the Jus
tices who joined in the majority opinion in the first
case were then on the Bench. He avoided any refer
ence to the Denmead case, but furnished arguments
fatal to its correctness. He so far succeeded that Jus
tice Grier, who concurred in the decision of the first
case, wrote the unanimous opinion in the last case,
"and that opinion," though not formally overruling
"Winans vs. Denmead, did speak of what is really
the doctrine of that case in tones that it is difficult
to distinguish from tones of contempt. . . . Justice
Curtis and Justice Campbell measured their intellec
tual spears in Winans vs. Denmead. Voting with
Curtis were Justices McLean, Wayne, Nelson, and
Grier. Voting with Campbell were Chief Justice
Taney and Justices Catron and Daniel. It was a di
vision of the Court on Mason and Dixon's line, ex
cept that Justice Wayne of Georgia voted with the

JUSTICE OF THE SUPREME COURT 27
four Northern Justices, instead of with his four
Southern brethren. ... On the issue which they de
bated in the Supreme Bench and which Curtis won
there in Winans vs. Denmead, Campbell was right
and Curtis was wrong. And because he was right,
Campbell's dissenting opinion has now, after many
years, been substantially embodied in the case law
of the United States, while the opinion of Curtis re
mains only to be quoted by those who do not under
stand how obsolete it really is." J It is interesting to
note that, although complainant in his brief relies
on Winans vs. Denmead, defendant's counsel do not
refer to it, nor is it cited or referred to in the opin
ion of Justice Grier.
In Marshall vs. Baltimore & Ohio Railroad Com-"!
pany,2 Judge Campbell wrote a dissenting opinion
vigorously combating the trend of the Court toward
the enlargement of the jurisdiction of the Federal
Courts in cases in which corporations were parties,
upon the theory that they were citizens within the
meaning of the Constitution and of the Judiciary
Act. The debate was of long standing, and the evo
lution of the doctrine by which the jurisdiction has
been sustained and enlarged is among the most in
teresting subjects in our judicial history. It began
with the decision of Devaux's case,3 in which Chief
Justice Marshall said: "That invisible, intangible,
and artificial being, that mere legal entity, a corpo
ration aggregate, is certainly not a citizen and, con
sequently, cannot sue, or be sued, in the courts of
1 Great American Lawyers, vin, 64-70.
1 16 Howard, 314. 3 5 Cranch, 61 (1809).

28 JOHN ARCHIBALD CAMPBELL
the United States, unless the rights of the members,
in this respect, can be exercised in their proper name.
If the corporation be considered as a mere faculty,
and not as a company of individuals who, in the
transactions of their joint concerns, may use a legal
name, they must be excluded from the courts of the
Union." In that case the jurisdiction of the Court
was sustained upon the averment that the stock
holders and directors of the Bank of the United
States and the defendants were citizens of different
States. In Louisville, C. & C. Railroad Company vs.
Letson,1 the Court, Taney being then Chief Justice,
while disclaiming that it was overruling the Devaux
case, announced the doctrine that upon the averment
of the domicile of origin of the corporation the pre
sumption arose that the stockholders were citizens
of the same State.
In Marshall vs. Baltimore & Ohio Railroad Com
pany, the jurisdiction was invoked upon the aver
ment that "the Baltimore & Ohio Railroad Com
pany is a body corporate, by an Act of the General
Assembly of Maryland," the plaintiff being a citizen
of Virginia. The corporation challenged the jurisdic
tion in that it was not alleged that any of its stock
holders were citizens of Maryland. Mr. Justice Grier,
writing for the majority, held that the' form of the
averment was sufficient; that the presumption aris
ing from the habitat of a corporation in the place of
its creationwas conclusive as to the residence or citi
zenship of those who use the corporate name and
exercise the faculties conferred by it, and that the
* 2 Howard, 497 (1844).

JUSTICE OF THE SUPREME COURT 29
declaration contained a sufficient averment that the
real defendants were citizens of that State.
Judge Campbell dissented in strong but temper
ate language. After reviewing the earlier cases and
discussing Letson's case, citing the language of
Chief Justice Marshall in the Devaux case, which he
insisted was the only authoritative declaration of the
Court, he says : ' ' The word ' citizen ' in the American
Constitution, State and Federal, had a clear, dis
tinct, and recognized meaning, understood by the
common sense and interpreted accordingly by this
Court through a series of adjudications. The Court
has contradicted that interpretation, which will
undermine every limitation in the Constitution, if
universally adopted. A single instance of the kind
awakens apprehension, for it is regarded as a link in
a chain of repetitions. The litigation before this
Court, during this term, suffices to disclose the com
plication, difficulty, and danger of the controversies
that must arise, before these anomalous institutions
shall have attained their legitimate place in the body
politic. Their revenues and establishments mock at
the frugal and stinted conditions of State adminis
tration; their pretensions and demands are sover
eign, admitting, impatiently, interference by State
legislative authority. ... I am not willing to
strengthen, or to enlarge, the connection between
the courts of the United States and these litigants.
I can consent to overturn none of the precedents or
principles of this Court, to bring them within their
control and influence. I consider that the mainte
nance of the Constitution, unimpaired and unal-

30 JOHN ARCHIBALD CAMPBELL
tered, a greater good than could possibly be effected
by the extension of the jurisdiction of this Court to
embrace any class either of persons or cases."
The jurisdiction of the Federal Court in cases in
which corporations are parties has long since passed
beyond the domain of debate. It must be conceded
that in establishing such jurisdiction, the science of
pleading and resort to a fiction has been liberally in
voked. As matter of fact the conclusive presumption
upon which the jurisdiction is based is in a large ma
jority of cases untrue. The development of the doc
trine is an interesting illustration of the definition of
a "fiction," which, Sir Henry Maine says, "is an as
sumption which conceals the fact that a rule of law
has undergone alteration, the letter remaining un
changed." l Or, as Bentham terms it, "An instru
ment of arbitrary power invented by functionaries,
invested with limited powers for the purpose of
breaking through the limits in which the power was
intended to be circumscribed." 2
Justice Harlan illustrates the practical working of
the presumption indulged to sustain the jurisdic
tion: "The result will be that immediately prior to
February, 1893, before the Pennsylvania corpora
tion was organized, the stockholders of the Virginia
corporation were presumably citizens of Virginia;
that, a few days thereafter, in February, 1893, when
they organized the Pennsylvania corporation, the
same stockholders became presumably citizens of
Pennsylvania; and that on the first day of March,
1893, . . . the same persons were presumably citi-
1 Ancient Law, 25. 2 Works, ix, 59-77.

JUSTICE OF THE SUPREME COURT 31
zens, at the same moment of time, of both Virginia
and Pennsylvania." 1
Fictions have always been prolific sources for the
enlargement and amplification of jurisdiction, and
will probably continue to be resorted to by courts
for that purpose.2 There is much truth in Governor
Simeon Baldwin's observation in discussing this
question. He says: "The ease with which this may
be done, under such circumstances, is both a sign of
the strength of the written constitution and the util
ity of the legal fiction. Written constitutions are
strong, because, if need be, new meanings can be
read into them and old meanings read out of them,
in the quiet of a courtroom, by judicial authority.
Legal fictions have been found of service because
they make bridges between social epochs — useful
while travel goes that way — easily burned or
shifted to new positions when it may be forwarded
to some new goal." 3
In Dodge vs. Woolsey,4 Judge Campbell again, in
a dissenting opinion, expressed his hostility to the
extension of the jurisdiction of the Federal Court,
upon the appeal of corporations resisting State
legislation. In that case the plaintiff, a stockholder
in the Commercial Bank of Cleveland, Ohio, but a
resident of another State, filed a bill in chancery in
the Circuit Court of the United States against the
1 Lehigh Mining and Manufacturing Company vs. Kelly, 160
U.S. 330.
2 3 Blackstone, Com. (Jones, 1553), note.
» "A Legal Fiction with its Wings Clipped," American Law
Review, xli, No. 38 (1907).
* 18 Howard, 331.

32 JOHN ARCHIBALD CAMPBELL
directors of the bank and the tax collector, for the
purpose of enjoining the directors from paying, and
the tax collector from enforcing, the collection of a
tax imposed by the Legislature upon the bank. The
contention was that, by its charter, the State had
entered into a contract binding itself to a system of
taxing the property of the bank. The defendant tax
collector challenged the jurisdiction of the Court.
The Court held that the provisions in the charter
constituted a contract which prevented the Legisla
ture from changing the method of taxing the prop-
'- erty of the bank.
Judge Campbell wrote a dissenting opinion, in
1 which Judges Daniel and Catron concurred. Deny
ing the right of a stockholder of a corporation, with
out alleging collusion, fraud, or negligence on the
part of the directors, to invoke the interference of a
court of equity, respecting the management of the
corporate property, Justice Campbell said: "The
allowance of this plea interposes this Court between
those corporations and the Government of the peo
ple of Ohio, to which they owe their existence and by
whose laws they derive all their faculties. It will es
tablish on the soil of every State a caste made up of
combinations of men for the most part under the
most favorable conditions of society, who will ha
bitually look beyond the institutions and authori
ties of the State, to the central Government for the
strength and support necessary to maintain them in
the enjoyment of their special privileges and exemp
tions. The consequences will be a new element of
alienation and discord between the different classes

JUSTICE OF THE SUPREME COURT 33
of society, and the introduction of a fresh cause of
disturbance in our distracted political and social
system. In the end the doctrine of this decision may
lead to a violent overturn of the whole system of cor
porate combinations. If this Court is to have an
office, so transcendent as to decide finally the pow
ers of the people over persons and things within the
State, a much closer connection and a much more
direct responsibility of its members to the people is
a necessary condition for the safety of the popular
rights. . . . The inquiry recurs, have the people of
Ohio deposited with this tribunal the authority to
overrule their own judgment upon the extent of
their own powers over institutions created by their
own Government and commorant within the State?
The fundamental principle of the American Con
stitution, it seems to me, is that to the people of the
several States belongs the resolution of all questions
— whether of regulation, compact, or punitive jus
tice — arising out of the action of their municipal
government upon their citizens, or depending upon
their constitutions and laws, and they are judges of
the validity of all acts done by their municipal au
thorities in the exercise of their sovereign rights, in
either case, without responsibility or control from
any department of the Federal Government. This, I
understand to be the import of the municipal sover
eignty of the people within the State."
Discussing the suggestion that, in order to protect
the corporation against popular prejudice, it was
necessary that the jurisdiction be sustained, he says:
"It may be that the people may abuse the powers

34 JOHN ARCHIBALD CAMPBELL
with which they are invested, and even, in correct
ing the abuses of their Government, may not, in
every case, act with wisdom and circumspection.
But, for my part, when I consider the justice, mod
eration, the restraints upon arbitrary power, the
stability of social order, the security of personal
rights, and the general harmony which existed in
the country before the sovereignty of the people was
a living and operative principle and governments
were administered subject to the limitations, and
with reference to the specific ends for which they
were organized, and their members recognized their
responsibility and dependence, I feel no anxiety nor
apprehension in leaving to the people of Ohio a
'complete power' over their Government and all
the instruments and establishments it has called
into existence."
In Piqua Branch of the State Bank of Ohio vs.
Knoop J was presented the much-debated question
respecting the rule which should control in constru
ing an act of the Legislature, changing the method
of, or imposing upon corporations, taxation other
than is prescribed in the charter, and the extent to
which such provisions are contractual. The majority
of the Justices sustained the contention of the bank.
Judge Campbell, together with Judges Catron and
Daniel, dissented, Daniel adopting the opinion of
Judge Campbell. After tracing the history of the
struggle in England for the preservation of the rev
enues with which the King was vested in trust for
the people, Judge Campbell says: "The rule that
1 16 Howard, 376.

JUSTICE OF THE SUPREME COURT 35
public grants convey nothing by implication, are
construed strictly in favor of the sovereign, do not
pass anything not described, that general words shall
never be so construed as to deprive him of a greater
amount of revenue than he intended to grant, was
not the inventions of the craft of crown lawyers,
but was established in contests with crown favor
ites and impressed upon the administration, execu
tive and judicial, as checks for the people." Refer
ring to "the sly and stealthy arts to which State
Legislatures are exposed, and the greedy appetite of
adventurers for monopolies, and immunities from
the State right of government," he says: "We do
not close our eyes to their insidious efforts to ignore
the fundamental laws and institutions of the State
and to subject the highest popular interests to their
central boards of control, and directors' manage
ment. . . . The subject affects the public order and
general administration. It is not properly a matter
for bargain or barter, but their enactment is in the
exercise of a sovereign power, comprehending within
its scope every individual interest in the State."
The struggle so long maintained in the courts in
respect to legislative grants of immunity from tax
ation of corporate property, based upon the princi
ple announced in the Dartmouth College case, has,
by the reservation in modern State Constitutions of
the power to amend or repeal charters, to a large
extent come to an end.
In Christ Church vs. Philadelphia,1 Judge Camp
bell stated the rule, which has been uniformly ad-
i 65 U.S. 300, 24 Howard, 300.

36 JOHN ARCHIBALD CAMPBELL
hered to, by which grants of special privilege and
exemptions from taxation should be construed, say
ing: "A statute exempting the property of a church
from taxation is privilegia favorabilis and not con
tractual." To the argument, that the statute should
be so construed as to make the exemption perpetual,
he said : " Such an interpretation is not to be favored,
as the power of taxation is necessary to the existence
of the State and must be exercised according to the
varying conditions of the Commonwealth."
In York and M. Line Railroad vs. Winans,1
Judge Campbell wrote, for the unanimous Court, aD
opinion holding that a railroad company could not,
by farming out its franchise or leasing its track,
escape liability for the acts of its lessee. To the ob
jection of the company that the cars employed were
not built by and did not belong to it, but were the
exclusive property of the lessee; that the agreement
to divide profits did not constitute a partnership
nor evince a relation of principal and agent, he
says: "This conclusion implies that the duties im
posed upon the plaintiff by the charter are fulfilled
by the construction of the road, and that by alien
ating its right to use and its power of control and
supervision, it may avoid further responsibility. But
those acts involve an overturn of the relations which
the charter has arranged between the corporation
and the community. Important franchises were con
ferred upon the corporation to enable it to provide
the facilities to communication and intercourse re
quired for the public convenience. . . . The corpora-
1 17 Howard, 30.

JUSTICE OF THE SUPREME COURT 37
tion cannot absolve itself from the performance of
its obligations, without the consent of the Legisla
ture." This doctrine has become the settled law of
the country.
Judge Campbell found himself in opposition to
the trend of thought and judicial progress extending
the jurisdiction of the Court in admiralty causes. To
understand correctly the conditions regarding that
controversy with which he was confronted, a short
historical sketch of the decisions made prior to 1852
is necessary.Prior to the decision in Waring vs. Clarke,1 the Su
preme Court had held that the admiralty jurisdic
tion conferred upon the Federal Courts was con
fined to cases arising out of contracts made, or to be
performed, or torts occurring on the sea or naviga
ble water, within the ebb and flow of the tide. In The
Thomas Jefferson,2 Judge Story said: "This is the
prescribed limit which it was not at liberty to tran
scend." In construing the grant of judicial power
"to all cases of admiralty and maritime jurisdic
tion," it was held that reference must be had to the
English statutes and decisions for the purpose of
defining the terms used by the Convention of 1787.
It was found that at the time of the adoption of
the Constitution, the jurisdiction of the admiralty
courts in England was confined to the sea and wa
ters in which the tide ebbed and flowed, and that the
jurisdiction was prohibited when the cause of action
arose infra corpus comitatus. This state of the law
was the result of a long and at times spirited contest
5 Howard, 451. 2 10 Wheaton, 429 (1825).

38 JOHN ARCHIBALD CAMPBELL
between the common-law courts and the courts of
admiralty. The question underwent an exhaustive
examination, by Judge Story, presiding in the Dis
trict Court in De Lovio vs. Boit.1 This learned ju
rist, referring to the conclusion reached by him, says
that jurisdiction was granted in "all maritime con
tracts whenever made, and all torts and injuries on
the high seas or in ports within the ebb and flow of
the tide." 2
In his opinion in The Thomas Jefferson, Judge
Story, foreseeing the difficulties which would be
encountered by adhering to the limitations placed
upon the jurisdiction under the English law, in
quired whether, under the power to regulate com
merce between the States, Congress might not "ex
tend the remedy by the summary process of the
admiralty to the case of voyages on the western
waters." In Waring vs. Clarke3 the Court held that
the jurisdiction in admiralty extended to a collision
on the Mississippi River within the ebb and flow
of the tide, although infra corpus comitatus. This case
was argued by John J. Crittenden, sustaining the ju
risdiction, and Reverdy Johnson, contra. The ques- \
tion debated and decided by a divided Court was
whether the jurisdiction extended to a case in which
the collision occurred within navigable waters in
which the tide ebbed and flowed and within the body
of a county in a State, and this question, it was con
ceded, was "distinctly presented for the first time
1 2 Gall. (C.C.) 398 (1815).
• Story, W. W.: Life and Letters of Joseph Story, 266.
• 5 Howard, 451 (1846).

JUSTICE OF THE SUPREME COURT 39
to the Court." Judge Wayne, writing for the ma
jority, reviewed the English statutes and decisions,
together with the Colonial records and the proceed
ings of the Convention of 1787, and reached the con
clusion that "the grant of admiralty power to the
Courts of the United States was not intended to be
limited or to be interpreted by what were cases of
admiralty jurisdiction in England when the Consti
tution was adopted," and that the limitation pro
hibiting the jurisdiction to collisions occurring infra
corpus comitatus did not apply. To this conclusion
Judge Catron gave his carefully guarded assent lim
ited to the "precise case before the Court."
Judge Woodbury filed a dissenting opinion cover
ing thirty-nine pages, in which Judges Daniel and
Grier concurred. Emphasizing tfie line of cleavage
between the members of the Court and the intensity
of the conviction of the dissenting Justices, Judge
Woodbury, after stating the case, says: "A great
principle at the foundation of our political system
applies strongly to the present case, and is, that
while supporting all the powers clearly granted to
the general Government, we ought to forbear inter
fering with what has been preserved to the States,
and in cases of doubt to follow where that principle
leads, unless prevented by the overruling authority
of high judicial decisions." He carefully confined his
opinion to the question of jurisdiction of admiralty
in cases of tort, and distinguished this case from that
decided by Judge Story in De Lovio vs. Boit, in
which a contract constituted the subject-matter of
the suit. He says: "In trespass it was always a test,

40 JOHN ARCHIBALD CAMPBELL
not only that it happened on the sea, instead of
merely tidewater, but out of the body of a county." 1
Thus was inaugurated in the Federal Courts the
controversy which, in other forms, but involving
the same divergence of thought, had been waged in
England, since 1361, between the courts proceeding
according to the course of the common law and those
in which the summary proceedings in the courts of
the Lord High Admiral and his deputies prevailed.2
By the Act of 1845, Congress extended the juris
diction of the District Courts in admiralty to mat
ters of contract and tort arising in, or upon, the
lakes and navigable waters connecting the same.
The validity of this statute was challenged in The "
Genesee Chief.3 Chief Justice Taney, writing for the
majority of the Court, sustained the statute, not, as
was argued it should have been, as within the power
vested in Congress to regulate commerce, but as
being within the terms of the grant to the judicial
power to cases arising in admiralty and maritime
jurisdiction. The act gave to either party the right
to demand a trial by jury. There can be no doubt
respecting the scope, extent, and ground upon which
the decision is based. The Thomas Jefferson and
cases following it were overruled. Judge Daniel dis
sented. That the decision was not based upon the
statutory jurisdiction, but upon the constitutional
1 Carson, H. L. : " Great Dissenting Opinions," Report, American
Bar Association (1894), 284.
2 Select Essays, Anglo-American Legal History, n, 312; Van
Santvoord, G. W.: Sketches of the Lives, Times, and Judicial Services
of the Chief Justices of the United States, 604.
a 12 Howard, 443 (1851).

JUSTICE OF THE SUPREME COURT 41
grant, is made clear by the decision in Fretz vs. Bull,1
rendered at the same term, wherein a collision oc
curred on the Mississippi River, at a place where the
tide did not ebb and flow. Judge Wayne says that the
decision in The Genesee Chief extended the jurisdic
tion to cases occurring on the lakes and navigable
rivers of the United States.
In Jackson vs. Magnolia,2 it was held, by a di-~
vided Court, that a collision of two boats in naviga
ble water, on the Alabama River two hundred miles
above tidewater, and in a county, was within the
jurisdiction of the Admiralty Court. Justice Grier
referred to the denial of the jurisdiction as "only a
renewal of the old contest between courts of com
mon law and courts of admiralty as to their juris
diction within the body of a county," as "finally
adjudicated and the argument exhausted." To the
suggestion that the jurisdiction in The Genesee
Chief was based upon the statute, he said it was
never so held. To the argument founded upon the
English law defining the admiralty jurisdiction and
defending the departure made by the American
courts, rejecting the ebb and flow as the test of the
limits of the jurisdiction, Justice McLean, concur
ring, said: "Antiquity has its charms, as it is rarely
found in the common walks of professional life, but
it may be doubted whether wisdom is not more fre
quently found in experience and the gradual prog
ress of human affairs; this is especially the case in all
systems of jurisprudence which are matured by the
progress of human knowledge. Whether it be com-
1 12 Howard, 466. 2 20 Howard, 296 (1857).

42 JOHN ARCHIBALD CAMPBELL
mon, chancery, or admiralty law, we should be more
instructed by studying its present adaptation to
human concerns than to trace it to its beginnings.
Every one is more interested and delighted to look
upon the majestic and flowing river than by follow
ing its current upward, until it becomes lost in its
mountain rivulets."
These views did not receive the assent of the more
conservative minds of Justices Daniel, Catron, and
Campbell. In his dissenting opinion, Judge Campbell calls
attention to the fact that the collision occurred in
Wilcox County, in the State of Alabama, between
two steamboats navigating the Alabama River; that
the river flows entirely within the State and dis
charges itself into the Mobile River and through
that, and the Mobile Bay, connects itself with the
Gulf of Mexico; that the collision occurred two hun
dred miles above the ebb and flow of the tide; that
no port of entry had been established. He began the
discussion by stating that, in his opinion, the Court
assumed a jurisdiction over a case cognizable only
at the common law and trial by a jury, and that the
decisions contravened a large number of decisions of
the Court based upon elaborate argument and ma
ture decision which constituted a rule of decision to
the Court. After quoting the provisions of the Con
stitution guaranteeing trial by jury in all actions at
common law when the value in controversy ex
ceeded twenty dollars, he said: "These, and other of
like kind, identify the men of the Revolution as the
descendants of ancestors who had maintained for

JUSTICE OF THE SUPREME COURT 43
many centuries a persevering and magnanimous
struggle for a constitutional government, in which
the people should directly participate, and which
should secure to their posterity the blessings of lib
erty. The supremacy of those courts of justice that
acknowledged the right of the people to share in
their administration and directed their administra
tion according to the course of the common law, in
all the material subjects of litigation — of that com
mon law which sprung from the people themselves,
and is legitimate by that highest of all sanctions, the
consent of those who are submitted to it — of that
common law which resulted from the habitual
thoughts, usages, conduct, and legislation of a prac
tical, brave, and self -relying race — was established
in England and the United States only by their per
severing and heroic exertions and sacrifices."
He proceeds to give an interesting history of the
struggle, beginning in the reign of Richard II be
tween the Commons and the great military officers
who administered justice by virtue of their seignio
rial powers — the Lords Constable and the Earl
Marshal and the Lord High Admiral, quoting the
Statute of 8th and 13th Richard II, which excluded
from the realm the odious system of the Continent
and declared, "that the Admiral should not meddle
with anything done within the realm, but only with
things done upon the sea." This act not accomplish
ing its purpose, another was enacted, declaring
"that the Court of Admiralty hath no manner of
cognizance, power, nor jurisdiction of any manner
of contract, plea, or ground arising within the bod-

44 JOHN ARCHIBALD CAMPBELL
ies of the counties. . . . But that all manner of con
tracts, pleas, and grounds shall be tried, determined,
discussed, and remedied by the laws of the land and
not before nor by the Admiral or his Lieutenant, in
no manner." By these and other statutes of like
kind, the common law of the realm was placed upon
an eminence and the Commons enabled to plead
with authority against other encroachments and
usurpations upon the general liberty. The struggle
for the supremacy of courts proceeding according to
the course of the common law with the Star Cham
ber and High Commission Court continued until the
Revolution of 1640, when the latter were overthrown
and trials secured in the ordinary courts of justice
and by the ordinary course of the law.
Judge Campbell insisted that, in the midst of that
contest, the settlements were formed in America,
and the fruits of the struggle were incorporated into
the Declaration of Independence and the Constitu
tion; that the grant of jurisdiction to the Federal
Courts of all cases "of admiralty and maritime
jurisdiction" must be construed in the light of the
admiralty jurisdiction as it existed in England.
Following an interesting history of the discussions
in the Colonial assemblies, the Convention of 1787,
and the State Conventions, including the language
used by Hamilton in the "Federalist," he says: "It
did not enter into the imagination of any opponent
of the Constitution to conceive that a jurisdiction
which, for centuries, had been sternly repelled from
the body of any county, could, by any authority,
artifice, or device, assume a jurisdiction through the

JUSTICE OF THE SUPREME COURT 45
whole extent of every lake and water-course within
the limits of the United States." He refers to the
opinion of Judge Story, in De Lovio vs. Boit, as
"celebrated for its research, and remarkable, in my
opinion, for its boldness in asserting novel conclu
sions and the facility with which authentic historical
evidence that contradicted them is disposed of."
After a critical discussion of the case, he says: "The
error of the opinion in De Lovio vs. Boit on this sub
ject, in my judgment, consists in its adoption of the
harsh and acrimonious censures of discarded and
discomfited civilians on the conduct of the great
patriots of England, whose courage, sagacity, and
patriotism secured the rights of her people, as an
evidence of historical facts."
He concludes with the following spirited state
ment of his views: "The people of the several States
have retained the popular element of the judicial ad
ministration of England and the attachment of her
people to the institutions of local self-government.
In Alabama the trial by jury is preserved inviolate,
that being regarded as an essential principle of local
self-government. In the Court of Admiralty the peo
ple have no place as jurors. A single Judge, deriving
his appointment from an independent Government,
administers in that Court a code which a Federal
Judge has described as 'resting upon the general
principles of maritime law, and that it is not compe
tent to the States, by any local legislation, to en
large or limit or narrow it.' If the principle of this
decree is carried to its logical extent, all cases arising
in the transportation of property or persons from

46 JOHN ARCHIBALD CAMPBELL
the towns and landing-places, whether in or out of
the State, all cases of tort or damage arising in the
navigation of the internal waters, whether involving
the security of persons or title to property, . . . will
be cognizable in the District Courts of the United
States. If the dogma of Judges in regard to the sys
tem of laws to be administered prevails, then this
whole class of cases may be drawn ad aliud examen
and placed under the dominion of a foreign code
whether they arise among citizens or others. The States
are deprived of the power to mould their own laws in
respect to persons and things within their own lim
its, and which are appropriately subject to their own
sovereignty. The right of the people to self-govern
ment is thus abridged — abridged to the precise
extent that a Judge appointed by another Govern
ment may impose a law, not sanctioned by the rep
resentatives or agents of the people, upon the citi
zens of the States. Thus the contest here assumes
the same significance as in Great Britain, and in its
last analysis involves the question of the right of the
people to determine their own laws and legal insti
tutions." He says that he has applied the law as set
tled in The Genesee Chief, which he distinguished
from this case in deference to the principle of stare
decisis, although a portion of the reasons assigned
did not satisfy his judgment, but that he considers
"that the present case carries the jurisdiction to an
incalculable extent beyond any other and all others
that have heretofore been pronounced."
It was inevitable, for the reasons stated by Chief
Justice Taney in The Genesee Chief, that the limita-

JUSTICE OF THE SUPREME COURT 47
tion placed by the earlier decisions on the jurisdic
tion of the Admiralty Court would be abandoned.
Referring to these decisions he said: " It is evident
that a definition that would, at this day, limit pub
lic rivers in this country to tidewater, is utterly in
admissible. We have thousands of miles of public
navigable water, including lakes and rivers, in
which there is no tide. And certainly there can be no
reason for admiralty power over a public tidewater
which does not apply with equal force to any other
public water used for commercial purposes and for
eign trade."
Construing the language of the Constitution, in
accordance with the rule which requires the Court
to look to the meaning of the terms used in the juris
prudence of England at the date of the Constitution
or statute invoked by the Chief Justice in the Dred
Scott case, the dissenting Judges had the best of the
historical argument. The opinions are, however, in
teresting to the student as illustrative of the diver
gent canons of construction of our Constitution and
the cast of mind of the Judges.
The last echo of the phase of the controversy in
which Judge Campbell took part is found in the dis
senting opinion of Chief Justice Taney in Taylor vs.
Caryll.1 The sole question presented and decided in
that case was that where a vessel had been seized by
the sheriff under a process of foreign attachment
sued out of the State Court in an action for damages
and a motion pending in that Court for an order of
sale, a libel, filed in the District Court of the United
i 20 Howard, 583.

48 JOHN ARCHIBALD CAMPBELL
States for mariner's wages and process issued under
it, could not divest the authorities of the State of
their authority over the vessel; that the sale made
by the sheriff conveyed a valid title against the pur
chaser at a sale made by the marshal. Justice Camp
bell wrote the opinion for a majority of the Court.
No question was raised or discussed regarding the
priority of the lien on the vessel for the mariner's
wages. Chief Justice Taney wrote the dissenting
opinion in which Justices Wayne, Grier, and Clif
ford concurred. He evidently thought that the last
word in support of the decision in Jackson vs. Mag
nolia had not been said. After a well-sustained dis
cussion of the question at issue in the case, he pro
ceeds to a spirited defense of the jurisdiction of the
admiralty. He opens the subject by saying: "I am
sensible that, among the highest and most enlight
ened minds, which have been nurtured and trained
in the studies of the common law, there is a jealousy
of the admiralty jurisdiction, and that the principles
of the common law are regarded as favorable to per
sonal liberty and personal rights and those of the ad
miralty as tending in a contrary direction. And under
the influence of this opinion, they are apt to consider
any restriction upon the power of the latter as so much
gained to the cause of free institutions." He notes
that Sir Edward Coke had contributed to the creation
of these opinions, and quotes the statement of Mr.
Justice Buller, in Smart vs. Wolfe,1 that the opinions
of Coke on the subject had been received "with
great caution and frequently contradicted."
» 3 T. R. 348.

JUSTICE OF THE SUPREME COURT 49
Following an interesting history of the conflict in
England, the Chief Justice concludes: "If we are to
look to England for an example of enlightened pol
icy in the Government, and a system of jurispru
dence suited to the wants of a great commercial na
tion, or just and impartial laws by judicial tribunals
upon principles most favorable to civil liberty, I
should not look to the reigns of Richard II or Henry
IV or Henry VIII for either. I should rather expect
to find examples worthy of respect and commenda
tion in the England of the present day, in her statute
of 3d and 4th Victoria, in the elevated and enlight
ened character of its present courts of justice and
their mutual respect and consideration for the acts
and authority of each other, without any display of
jealousy or suspicion."
This portion of the opinion is spirited, strong, and
manifestly written as an answer to the dissenting
opinion of Judge Campbell. In both opinions the
authors were at their best. They are valuable con
tributions to the interesting history of the struggle
between those who held opposing views respecting
the construction of the grants of judicial power by
the Federal Constitution.
Judge Campbell did not further resist the current
of decisions which, during his term on the Bench,
extended the admiralty jurisdiction. He concurred
in the decision which enforced the limitation placed
by Judge Taney in The Genesee Chief upon the ju
risdiction to matters in contract and tort arising in
business of commerce and navigation between ports
and places in different States and Territories, upon

50 JOHN ARCHIBALD CAMPBELL
the lakes and navigable waters.1 The suggestion,
that the commerce clause limited the grant of judi
cial power in cases of admiralty and maritime juris
diction, was denied in The Commerce; 2 and in an
exhaustive discussion by Judge Bradley and Judge
Clifford in The Lottawanna,3 in which the decided
cases were reviewed, it is said that in cases of tort
the question of jurisdiction is wholly unaffected by
the consideration that the ship was not engaged in
foreign commerce or in commerce between the
States; that the jurisdiction, whether the cause of
action is contract or tort, does not depend upon the
regulation of commerce.
With the death of Judge Daniel, the retirement
of Judge Campbell, and the coming of Judges who
accepted the later construction of the Constitution,
opposition to the enlarged jurisdiction ceased, and
it was extended without dissent. The result of the
debate is well stated by Judge Bradley, referring to
the duty of the Court to determine the true limits of
the admiralty jurisdiction. He says: "This bound
ary is to be ascertained by a reasonable and just
construction of the words used in the Constitution,
taken in connection with the whole instrument and
the purpose for which admiralty and maritime juris
diction was granted to the Federal Government.
Guided by these sound principles, this Court has
felt itself at liberty to recognize the admiralty juris
diction as extending to localities and subjects which,
by the jealousy of the common law, were prohibited
1 Allen vs. Newberry, 21 Howard, 244.
2 1 Black, 578. 3 21 Wall. 558.

JUSTICE OF THE SUPREME COURT 51
to it in England, but which fairly belong to it on
every ground of reason when applied to the peculiar
circumstances of this country, with its extended
territories, its inland seas, and its navigable rivers,
especially as the narrow restrictions of the English
law had never prevailed on this side of the Atlantic,
even in Colonial times." x
While, under the extended jurisdiction a vast
number of cases involving maritime torts and con
tracts, arising on navigable rivers, find their way
into the Admiralty Courts, the absorption of the
jurisdiction of the State Courts in cases of this char
acter, apprehended by Judge Campbell and those
Judges who concurred with his opposition to the
modern rule, has been largely limited by the devel
opment of the railroads over the country, in many
sections absorbing the carrying of inland trade and
commerce. The case of Florida vs. Georgia 2 gave to Judge
Campbell an opportunity to express his views re
garding the jurisdiction of the Court upon which it
was his fortune later on to exert a potent influence
and add to his fame. Based upon the jurisdiction
conferred by the Constitution in controversies be
tween different States, a bill in equity was filed by
the State of Florida against the State of Georgia for
the purpose of having a controversy respecting the
boundary between the two States adjudicated and
1 21 Wall. 576. For an interesting reference to the "lack of har
mony among the Judges " in cases relating to the extension of the
admiralty jurisdiction see H. L. Carson: " Great Dissenting Opin
ions," Report, Am. Bar Asso. (1894), 284.
2 17 Howard, 478.

52 JOHN ARCHIBALD CAMPBELL
settled. The Attorney-General of the United States,
Caleb Cushing, asked permission to intervene and
assert the claim of the United States to a portion of
the territory in dispute. To the decision granting
the prayer, Chief Justice Taney, Judge Daniel,
Judge Curtis, and Judge Campbell dissented. The
last two filed opinions, both insisting that, upon
well-settled rules of equity practice, a person seek
ing to intervene in a case should be made a party
and become bound by the decree. The Attorney-
General disclaimed any purpose or power to make
the United States a party to the cause. Counsel for
both States objected to the intervention. Judge
Campbell said: "I do not admit that the Attorney-
General has any corporate or judicial character, or
that he can be introduced into the record, as an ac
tor or respondent in a suit. His duties are strictly
professional duties, and his powers those of an at
torney at law. Whatever he may do for the United
States, a special attorney might be retained to do;
nor can the United States appear in his name, or by
his agency, in cases where they may not be a party."
Following an exhaustive discussion of the relation
between the States and the United States in respect
to the jurisdiction of the Federal Judiciary, he con
cluded with a spirited assertion of judicial independ
ence of executive interference, saying: "Nor do I
perceive that the Executive Department has any
title to disturb the parties or the Court, with the
expression of anxieties or apprehensions that the
Court will be lured to perform what Congress alone
may do, or that these constitutional conditions will

JUSTICE OF THE SUPREME COURT 53
not be honorably fulfilled. The existence of this Fed
eral Government, in its whole extent, is a testimo
nial to a magnanimous and disinterested polity of the
States of the Union; nor is the concession which sub
mits to a tribunal of justice between sovereign
States the least weighty of the proofs of those dispo
sitions. It seems to me that it is the duty of this
Court to come to the exercise of the jurisdiction the
States have conferred, in the same spirit; to exercise
according to the letter of their submission, to ex
clude from it suspicions, jealousies, interventions
from any authority, but to meet the parties to the
controversy with confidence."

CHAPTER III
THE SLAVERY QUESTION BEFORE THE COURT
Probably, in the judicial and political history of the
United States, no decision of the Supreme Court has
been so much discussed, so vigorously and bitterly
attacked, as that rendered at the December Term,
1856, known and usually referred to as the "Dred
Scott case." It appears on the records of the Court
as Scott vs. Sanford,1 and occupies two hundred and
forty printed pages of the volume. The length of the
opinions filed by the Justices is indicated by the fact
that the pleadings and statements upon which the
case was submitted and argued occupy but two
pages, and the reporter regretted that, for "want of
room," the briefs and arguments of counsel, at that
time usually printed at length, "are omitted." It
has been well said that the case "convulsed the
whole country from one end to the other, and is still
spoken of and discussed with heat, and frequently
with a degree of ignorance as to the real points ruled
in it equal to the warmth and feeling exhibited." 2
It is not the purpose nor within the scope of this
volume to discuss the merits or correctness of the
opinions written by either the majority or the dis
senting Judges. There is no phase of the case, as it
was disposed of by the Supreme Court, in which
those agreed whose feelings were enlisted. As sug-
1 19 Howard, 393.
* Constitutional History as seen in American Law, 179. ,

THE SLAVERY QUESTION 55
gested, the controversy has been as fierce in respect
to what was decided as to the merits of the decision.
One of the attorneys who argued the case insists
that it is inaccurate to refer to the disposition of the
case as a "decision." It was at the time, and is now,
strongly insisted by those who differed from the
views of the majority of the Judges that their opin
ions are nothing more than obiter dicta. The author
of the "Memoir" of Chief Justice Taney devotes
much space to his vindication from the "wild and
willing imaginations of the party in whose path the
decision was a stumbling-block." x The author of
the biography of the Judge who wrote the principal
dissenting opinion says that he writes "a full and
circumstantial account of the case, because the ac
tion of the learned Judge has sometimes been mis
understood, and, as he expressed it in his last illness,
a sense that some injustice has been done to him in
connection with this case, which he expected those
who were to come after him to repair." 2 Adopting
the suggestion of Mr. George Ticknor Curtis, who
used this language, that "the time has come when
justice can be done to those who have passed away
and when history can perform its appropriate of
fice," and for no other reason, it is deemed proper to
give a short history of the case and the opinion of
Judge Campbell upon the questions argued before
the Court, and which he thought called for discus
sion, together with his interpretation of the course
pursued by the other Justices which has given rise
1 Tyler, Samuel: Memoir of Roger Brooke Taney, 376.
1 Curtis, G. T.: A Memoir of Benjamin Robbins Curtis, i, 195.

56 JOHN ARCHIBALD CAMPBELL
to much controversy and, probably, injustice to
them.
Dred Scott, a negro, resident of the State of Mis
souri, and claiming to be a citizen thereof, brought
an action in the Circuit Court of the United States
for the District of Missouri against John F. A. San-
ford, who claimed to be bis owner, a citizen of the
State of New York. In his declaration he alleged,
in three separate counts, that the defendant had
assaulted him, his wife, and his two daughters, for
which he claimed damages. The defendant chal
lenged the jurisdiction of the Court by a special plea
in abatement, setting forth the facts from which he
insisted the legal result followed that Scott was not
a citizen of the State of Missouri. To this plea the
plaintiff demurred, thereby admitting the facts set
out in the plea. The Court sustained the demurrer
and required the defendant to plead to the merits,
which he did by filing the plea of "not guilty." The
parties being thus at issue, they submitted the case
to the decision of the Court upon an agreed state of
facts. The facts which are material to an under
standing of the points argued and decided are:
In the year 1834, Scott was a negro slave, the
property of Dr. Emerson, a surgeon in the United
States Army. During that year Dr. Emerson, in the
discharge of his duty as an officer of the army, went
to the military post at Rock Island in the State of
Illinois, taking Scott with him. He remained there
until May, 1836, when he removed, taking Scott
with him, to Fort Snelling, situate on the west bank
of the Mississippi River, in the territory known as

THE SLAVERY QUESTION 57
Upper Louisiana, acquired by the United States
from France, north of latitude thirty-six degrees
and thirty minutes north, and north of the State of
Missouri. Dr. Emerson held Scott at Fort Snelling
until 1838. In 1835 Harriet was the negro slave of
Major Taliaferro, an officer of the army. In that
year he took Harriet to Fort Snelling and held her
there as a slave until 1836, when he sold her to Dr.
Emerson, who held her in slavery at Fort Snelling
until 1838. In 1836 Scott and Harriet, with the con
sent of Dr. Emerson, were married, and the two
children named in the declaration were the issue of
such marriage. Eliza was born on a boat north of
Missouri. Lizzie was born in Missouri. In 1838 Dr.
Emerson returned to Missouri, bringing Scott and
his wife and child Eliza with him, where they con
tinued to reside until the institution of the action.
Before the commencement of the suit, Dr. Emerson
sold and conveyed Scott and his wife and children to
defendant, who had since the purchase held them in
Missouri as his slaves. The assault was admitted to
the extent necessary to present the question of law.
It was also admitted that Scott, before the institu
tion of this action, brought suit upon the same facts
in the State Court and recovered judgment against
defendant which, on appeal to the Supreme Court
of the State, was reversed, and that case was then
pending in the State Court.
The Court upon the agreed facts instructed the
jury to return a verdict for the defendant, and from
judgment rendered thereon a writ of error was sued
out to the Supreme Court of the United States. The

58 JOHN ARCHIBALD CAMPBELL
case was twice argued. On the second argument
Montgomery Blair and George T. Curtis repre
sented Scott and Henry S. Geyer and Reverdy
Johnson represented the defendant. After the first
argument, differences of opinion were found to exist,
and because of the importance of the questions in
volved a reargument was ordered. The Court pre
pared and directed argument upon two questions:
" 1st, Had the Circuit Court of the United States
jurisdiction, to hear and determine the case between
these parties; and
"2d, If it had jurisdiction, is the judgment it has
given erroneous or not?"
The decision of the case depended upon the an
swer to these two questions. It is difficult, reading
the record and the questions so clearly stated, to
understand why the answer should have called
forth opinions by the members of the Court, cover
ing more than two hundred pages, and why the an
swer given by the majority of the Judges hastened,
if it did not directly result in the attempted seces
sion of eleven States from the Union, followed by
civil war, lasting four years, resulting in the eman
cipation of every slave in the United States. Politi
cal parties of national scope were disrupted and new
ones formed, as the result of this apparently simple
controversy. It is manifest that the answer to the
first question was dependent upon the answer to a
primary question, whether a person of African de
scent was within the meaning of the term "citizen"
as used in the Constitution and entitled to bring and
maintain a suit in the Circuit Court of the United

THE SLAVERY QUESTION 59
States. The solution of this question did not neces
sarily involve the status as to slavery or freedom of
Scott. If, because of his African descent, he was not
a "citizen," the plea in abatement was valid without
regard to his status, and the Circuit Court should
have dismissed the action for want of jurisdiction,
there being in that event no diversity of citizenship
which was the essential basis of jurisdiction.
The Supreme Court, however, found itself con
fronted with a question of practice to be disposed of
before proceeding to dispose of the question pre
sented by the plea in abatement. It was insisted
that, because the Circuit Court sustained the de
murrer to the plea and required the defendant to
plead to the merits, he could not rely upon the plea
in abatement in the Supreme Court; that the plea
was not, upon the record, before the Court. This
question the Chief Justice disposed of, holding that
the plea was before the Court. There would seem to
be no reasonable doubt that the Court was com
pelled to examine and pass upon the question of
jurisdiction. The validity of the plea involved the
question whether Scott was a "citizen." This pre
sented the inquiry whether, at the date of the adop
tion of the Constitution, a negro or person of African
birth or descent was included in the word "citizen,"
as used by its framers. The principal discussion upon
this question is found in the opinion of Chief Justice
Taney and in the dissenting opinion of Justice Cur
tis. Both these Judges examined the question from
the historical and other points of view, with thor
oughness and ability. Each found much to sustain

60 JOHN ARCHIBALD CAMPBELL
his contention. Judge Curtis contended that the
facts set out in the special plea did not exclude the
conclusion that, notwithstanding Scott's African
descent, he might, by manumission or otherwise,
have been a freeman. He insisted that the historical
evidence did not exclude Scott from citizenship be
cause of his race. In support of this contention, he
cited with approval a decision of the Supreme Court
of North Carolina, in which it was held that a free
negro was a "citizen" of that State.1
The majority having reached the conclusion that
the Circuit Court was without jurisdiction, it was
insisted by Judge Curtis that the case should be re
manded to that Court, with directions to dismiss the
action. This course would have disposed of the case
without reference to other questions discussed in the
argument. The Chief Justice, with whom Judge
Wayne and Judge Daniel concurred, was of the
opinion that, because of the language of the statute
defining the jurisdiction of the Supreme Court, it
was its duty, notwithstanding the opinion that the
Circuit Court had no jurisdiction, to proceed to de
cide the questions going to the merits of the case as
shown by the facts agreed upon. Judge Curtis dis
cussed this question of practice with great clearness
and sustained his view with abundant authority. It
would seem that the weight of the argument upon
this question was with the dissenting opinion.
From the opinion of the Chief Justice, that the
merits of the case were before the Court and should
be decided, the question arose whether the removal
1 State vs. Manuel, 20 N.C. 601.

THE SLAVERY QUESTION 61
of Scott, by his owner, to Fort Snelling, under the
circumstances set out in the record, worked his
emancipation, and, if so, whether this status con
tinued after his return to Missouri, where slavery
was recognized and protected by law. If this ques
tion were decided against Scott, the case would have
gone off upon a question of general jurisprudence,
not involving the constitutional power of Congress
to legislate in regard to slavery in the Territories.
The Chief Justice takes but slight notice of this
question, simply referring to the case of Strader vs.
Graham,1 as decisive of the contention, but Judge
Campbell, to a large extent, bases his concurring
opinion upon it.
After a concise statement of the facts, he says
that his opinion is not affected by the plea in abate
ment and that he will not discuss the question it
suggests. This is entirely logical in view of what he
proceeds to say. If, as he concludes, Scott's status as
a slave was not affected by his removal to Illinois
and thereafter to Fort Snelling, the Circuit Court
correctly instructed the jury, and the other ques
tions were immaterial. He says:
"The claim of the plaintiff to freedom depends
upon the effect to be given to his absence from Mis
souri in company with his master in Illinois and
Minnesota, and this effect is to be ascertained by a
reference to the laws of Missouri. For the trespass
was committed upon one claiming to be a freeman
and a citizen in that State, and who had been living
for years under the dominion of its laws. And the
» 10 Howard, 82.

62 JOHN ARCHIBALD CAMPBELL
rule is that whatever is a justification where the
thing is done, must be a justification in the forum
where the case is tried.
"The Constitution of Missouri recognizes slavery
as a legal condition, extends guaranties to the master
of slaves, and invites immigrants to introduce them
as property by a promise of protection. The laws of
the State charge the master with the custody of the
slave and provide for the maintenance and security
of that relation. . . . The inquiry arises whether the
manumission of the slave is effected by his removal,
with the consent of the master, to a community
where the law of slavery does not exist, in a case
where neither the master nor slave discloses a pur
pose to remain permanently and when both parties
have continued to maintain their existing relation.
What is the law of Missouri in such cases? Similar
inquiries have arisen in a great number of suits, and
the discussions in the State Courts have relieved the
question of much of its difficulty."
Following an exhaustive discussion and the cita
tion of numerous authorities, English and Conti
nental, Judge Campbell thus states his conclusion
upon this branch of the case: "The question occurs
as to the judgment to be given in this case. It ap
peared upon the trial that the plaintiff, in 1834, was
in a state of slavery in Missouri, and he had been in
Missouri for near fifteen years in that condition
when this suit was brought. Nor does it appear that
he, at any time, possessed another state or condition
de facto. His claim to freedom depends upon his
temporary elocation from the domicile of his origin,

THE SLAVERY QUESTION 63
in company with his master, to communities where
the law of slavery did not prevail. My examination
is confined to the case, as it was submitted, upon un
contested evidence, upon appropriate issues, to the
jury, and upon the instructions given and refused by
the Court upon that evidence."
He was of the opinion that, upon the record, it was
not a controversy between citizens of different
States and that plaintiff, at no period of his life
which was submitted to the Court, has had capacity
to maintain a suit in the Courts of the United
States. Judge Campbell is careful to say that he con
curs with the argument of the Chief Justice upon the
plea in abatement, in so far as it has reference to
plaintiff and his family, in any of the conditions or
circumstances of their lives "as presented in the evi^
dence," thus carefully avoiding the academic ques
tion whether, if a freeman of African descent, Scott
was a "citizen," that question not being before the
Court. Some of the language used by Judge Taney
in the discussion of this question gave rise to the
harsh and unjust construction and criticism of his
opinion. He was of the opinion that the judgment
should be affirmed, or that it should be reversed and
remanded, that the suit might be dismissed. Judge
Campbell, in this aspect of the case, was in agree
ment with Judge Nelson, who wrote a strong opin
ion upon the effect of the removal of Scott, upon the
agreed facts, to Illinois and Minnesota, citing Lord
Stowell's opinion in In re Grace and Judge Story's
comments upon it, in his letter to Lord Stowell.1
1 Story, W. W.: Life and Letters of Joseph Story, i, 552.

64 JOHN ARCHIBALD CAMPBELL
Judge Curtis and Judge McLean dissented from
this view, and both filed strongly reasoned opinions
to sustain their contention. Up to this point it
would seem that, without regard to differing opin
ions respecting the conclusions reached by the Jus
tices, there is no just ground for criticizing the course
pursued. There is very strong ground for the conten
tion that if a majority of the Court reached the con
clusion that, without regard to Scott's status, as a
slave or freeman, he was not a "citizen," the man
date should have gone to the Circuit Court to dis
miss the action. The same result followed the con
clusion that, upon the facts agreed, he was a slave.
It is said, however, that Judge Curtis was of the
opinion that the Court had jurisdiction because he
thought that Scott, upon the agreed facts, was en
titled to his freedom. The majority of the Justices
agreed that the decision should be confined to these
questions. Judge Nelson was designated to write
the opinion.
If the case had been disposed of upon Judge Nel
son's opinion, it would probably have attracted but
small public notice. While Judge Curtis dissented,
passing the question of practice, the sole question
decided would have been that, upon the facts
agreed, whatever may have been Scott's status if he
had remained at Fort Snelling, in Minnesota, upon
his return to Missouri, and residence there with his
owner, he was a slave at the time the alleged assault
was committed. Lawyers would have honestly dif
fered in respect to the correctness of this conclusion,
and doubtless those who held views and whose feel-

THE SLAVERY QUESTION 65
ings were hostile to the institution, and who wished
to see it placed under the strictest limitations, would
have believed the decision wrong.
It must be kept in mind, for the purpose of under
standing the course pursued in regard to other as
pects of the case which caused the intense public ex
citement, that, while the controversy was a real one
and the action brought in good faith, the parties
were by no means the only ones interested. The
course which the slavery agitation, in recent years,
had taken in the country, the legislation of Con
gress in regard to the status of slavery and the rights
of owners of slaves to carry them into the territory
lying north of the line fixed by the Act of 1820,
known as the "Missouri Compromise," and other
legislation, had become the subject of political dis
turbance and sectional hostility. The debates in the
United States Senate during the sessions of 1850-
52, upon measures affecting this controversy, had
enlisted the efforts of its ablest members. Attempts
at compromise had failed. The rapid growth of popu
lation in the Territories, with their desire to be ad
mitted as States, intensified the controversy. The
power of Congress to prohibit slavery in the Terri
tories was denied by the owners and advocates of
the system and strongly sustained by those who saw
in the admission of free States the ultimate destruc
tion of the institution. The political campaign of
1856, resulting in the election of Mr. Buchanan, had
been largely contested on this and other phases of
the slavery question.
It was manifest that the country was being car-

66 JOHN ARCHIBALD CAMPBELL
ried by the agitation into dangerous currents and
many conservative men thought that a decision of
the Supreme Court, settling the question whether
the congressional legislation excluding slavery from
the northern portion of the Territories was valid,
would be accepted as final. It was, under these
conditions, an understanding of which is necessary,
that the Dred Scott case found its way into the
Court in 1854. Some of the counsel received no
compensation for their services in arguing the case.
All of them were of the highest professional posi
tion.1 While there was controversy respecting the man
ner in which the Court was brought to the conclu
sion that a discussion and decision of the constitu
tional questions argued by counsel should be made,
it is sufficient to say that, upon the suggestion of
Judge Wayne, the Chief Justice wrote the opinion as
filed. Mr. George Ticknor Curtis gives an interest
ing account of the manner in which the course which
the Court pursued was brought about.2 Upon the
publication of this work Judge Campbell wrote Mr.
Curtis giving his recollection of the occurrence
which, in some material respects, differed from
Mr. Curtis's. Judge Campbell also gave his under
standing of the matter in a letter published in the
1 Tyler: Memoir of Roger Brooke Taney, 387; Curtis, G. T.:
Memorial Addresses — Justice Campbell, delivered at a meeting of
the Bar of the Supreme Court of the United States, April 6, 1889,
and published in a pamphlet, 25. For an interesting view of the case
see "The Dred Scott Decision," by E. S. Corwin, American Historical
Review (1911-12), 52; Howe, D. W.: Political History of Secession
to the Beginning of the American Civil War, chap. xv.
2 A Memoir of Benjamin R. Curtis, n, 206.

THE SLAVERY QUESTION 67
"Memoir" of Chief Justice Taney, which was ap
proved by Judge Nelson.1
It is not necessary, in any phase of the case in
which Judge Campbell was concerned, to do more
than refer to these sources of information. Whatever
difference of understanding may have existed be
tween those who were present and participated in
the transaction, Mr. Curtis makes it clear that those
with whom he was associated attributed no im
proper purpose to Judge Wayne. He says that he
made the suggestion, which was adopted, "with the
best intentions, with entirely patriotic motives; and
believing thoroughly that such was the law on this
constitutional question, he regarded it as eminently
expedient that it should be so determined by the
Court." 2
It was conceded by all concerned that the consti
tutional question was fully and ably argued. Judge
Campbell, in the letter to Mr. Curtis, says: "Judge
Wayne stated that the case had been twice argued
with thoroughness; that public expectation had
been awakened and a decision of the important
question looked for; that the Court would be con
demned as failing in a performance of its duty, and
that his own opinion was decided that the Chief
Justice should prepare the opinion of the Court and
discuss all of the questions in the cause. There was
no debate about this. It seemed to be acquiesced in,
though some did not approve it." He further says:
1 Tyler: Memoir of Roger Brooke Taney, 382-85; 20 WalL
"Memoranda." 1 A Memoir of Benjamin R. Curtis,, n, 234.

68 JOHN ARCHIBALD CAMPBELL
"Each Judge was left free to express his own posi
tion and each one did define his position. There is an
anomaly in the manner of the discussion in respect
to the plea in abatement that has produced confu
sion and much misunderstanding. This was the dis
cussion of the merits of the plea in abatement by
some of the Justices."
That Judge Wayne and the other Justices who
concurred with him were wrong in thinking that a
decision of the constitutional question would be ac
cepted by the losing side as final, and quiet agitation
of the question of slavery in the Territories, was
quickly demonstrated, and is not, in the light of
what occurred, open to debate. Whether, if the de
cision had sustained the contention of those who
maintained that the legislation was a valid exercise
of congressional power, the expectation would have
been realized, must remain an unanswered question.
In respect to the manner in which the Chief Jus
tice and Justice Curtis maintained their respective
views, we have the opinion of one of the counsel who
took part in the argument, uttered after both these
great Judges had passed away and the occasion of
the litigation had ceased to have other than an his
torical interest. Mr. Reverdy Johnson, speaking at
the meeting of the Bar in memory of Judge Curtis,
lately deceased, said: "Able as was the opinion of
the majority of the Court delivered by Chief Justice
Taney, it was admitted at the time, I believe, by
most of the profession, that the dissenting opinion
of Judge Curtis was equally powerful. Lawyers may
differ, as they have differed, as to which of these two

THE SLAVERY QUESTION 69
eminent men was right, but they will all concede
that the views of each were maintained with extra
ordinary ability, while those who knew them both
will never differ as to the sincerity of their respective
convictions." Judge Campbell, presiding over the memorial
meeting, said: "In respect to the merits of the re
spective opinions, I have no design to say a word.
They are marked with great ability and are an honor
to the Court which was able to produce them. They
will be considered hereafter as a link in the chain of
historical events and justice will be done to all par
ties connected with them. I am not aware that there
was any hostility or unkindness felt or expressed to
Judge Curtis by those who did not concur with him.
I can speak positively as to some and shall speak as
to myself, our relations remained undisturbed by
time, distance, and the corroding effects of sectional
strife and civil war until the hour of his lamented
death." x
Of this both these great Judges left unmistakable
testimony. At the time of Chief Justice Taney's
death (1864), Judge Curtis, seconding the resolu
tions adopted by the Bar of the First Circuit, meet
ing at Boston, referred to "his eminent abilities, pro
found learning, incorruptible integrity, and signal
private virtues," and to the "great qualities of mind
and character" exhibited in his "long and illustri
ous judicial career." 2 The value of this testimonial
is to be estimated in view of the statement of his
1 20 Wall. "Memoranda."
1 Curtis, G.T.: A Memoir of Benjamin R. Curtis, ii, 336.

70 JOHN ARCHIBALD CAMPBELL
biographer that "Judge Curtis never spoke of any
man, living or dead, otherwise than he felt." J
Following an able and interesting review of the
Dred Scott case, Professor William E. Mikell con
cludes: "As a technical question of practice, the
writer is of the opinion that Taney and his three as
sociates erred in thinking the merits of the case be
fore them, after deciding that the Circuit Court had
no jurisdiction, just as he thinks Justice McLean, of
the minority, was wrong in holding that the plea to
the jurisdiction was not before the Court, but only
the merits; but that the question was not then a set
tled one is apparent from a perusal of the opinions
in this case and the authorities cited therein." 2
The last word spoken by any of the participants
in this famous case was by Mr. George Ticknor Cur
tis, at the meeting of the Bar of the Supreme Court
upon the death of Judge Campbell, when, referring
to the fact that he was the only survivor of those
who took part in the argument and decision of the
case, he said: "I know, perhaps, more of the internal
history of that case than any other person who is
now living. ... It is due to the Southern Judges who
sat in that memorable case to speak of their posi
tions and the doctrines which they maintained."
Referring to the claim made by the advocates of
slavery, he said: "It was a plausible claim. It
seemed to be founded in an equality of right as be
tween the different sections of the Union regarded
as slaveholding and non-slaveholding States. It is
1 Curtis, G. T. : A Memoir of Benjamin R. Curtis, I, 231.
2 Great American Lawyers, iv, l70.

THE SLAVERY QUESTION 71
not surprising, therefore, it never has been to me,
that Judges of Southern birth and training, accus
tomed to this form of property which lay at the
basis of social life in those States, should have over
looked those considerations that rendered the claim
untenable under the Constitution. Certainly they
were bound to follow their convictions, and, it seems
to me, that no impartial person can now examine
their opinions, as pronounced from the Bench, with
out seeing that they expressed convictions honestly
and sincerely held, but it was supposed by those
learned and upright men that, when the Supreme
Court should have affirmed the constitutional doc
trine, which they believed to be the true one, all fur
ther agitation and controversy would be ended. This
was a great mistake and miscalculation as the sequel
proved." 1
Judge Campbell, when appointed to the Bench,
emancipated his household slaves. He owned no
others. While living in Washington he employed as
his servants free colored persons. In compliance
with the Alabama law he became guardian for his
manumitted slaves and so continued during and af
ter the Civil War. Judge Taney manumitted his
slaves many years before his appointment as Chief
Justice, supporting the older ones until they died.2
Whether the construction placed upon the consti-
1 Memorial Addresses — Justice Campbell, 26; Tyler: Memoir
of Roger Brooke Taney, 373; Van Santvoord: Chief Justices, 610;
Potter, Clarkson N. : " Roger B. Taney," Report, Am. Bar Asso.
(1881), 195; Christian, George L.: " Chief Justice Taney," Report,
Virginia State Bar Asso. (1911), 180.
2 Delaplaine, Edward S.: Maryland Historical Magazine (June,
1918), 131.

72 JOHN ARCHIBALD CAMPBELL
tutional provision, giving to Congress the power "to
make all needful rules and regulations respecting
the territory belonging to the United States," was
correct, either in respect to slavery historically or
upon other canons of construction, has long ceased to
have other than historical interest.
The Dred Scott case does not stand alone in our
judicial history as an illustration of diversity of
opinion among the members of the Court and of un
certainty in respect to the questions decided. In
Downes vs. Bidwell,1 which is illustrative of this
fact, the several Justices found as much difficulty in
coming to an agreement respecting the relation of
territory acquired by cession, or purchase, to the
United States, and the extent to which the Consti
tution limited and controlled congressional power.
The reporter encountered the same difficulty in
formulating the "head notes" as in the Dred Scott
case, saying: "There is no opinion in which a major
ity of the Court concurred." He adopts the same
course in "making head notes of each of the concur
ring opinions."
As a protest against the decision in the Dred
Scott case, the Supreme Court of Wisconsin ren
dered a decision which nullified the Fugitive Slave
Law and denied the power of the Supreme Court
of the United States to review the decision. The
course pursued by the State Court raised an issue,
the far-reaching effect of which exceeded the con
troversy regarding the legal status of slavery or the
validity of the Fugitive Slave Law.
1 182 U.S. 244-391.

THE SLAVERY QUESTION 73
The record discloses the character of the contro
versy and the facts upon which it was based. Sher
man Booth was arrested and brought before a
United States Commissioner upon a warrant charg
ing him with aiding and abetting the escape of a
fugitive slave from the marshal in violation of the
Act of Congress of September, 1850. Upon the hear
ing the Commissioner held Booth to bail, which was
given. His bail surrendered him and he was com
mitted to the custody of the marshal, whereupon he
sued out a writ of habeas corpus before one of the
Justices of the Supreme Court of the State. Upon
the return to the writ, the marshal setting forth the
cause of his detention, the Justice discharged Booth,
and upon the return to a writ of certiorari issued by
the Supreme Court of the State, the order of dis
charge was affirmed. The judgment was brought to
the Supreme Court of the United States upon a
writ of error. The record disclosed that in the State
Court the validity of the Act of Congress was
brought into question and the judgment of that
Court was against its validity. Other questions were
also presented and decided.
Thereafter Booth was indicted by the Grand Jury
of the District Court for the same offense for which
he was held to bail, and upon trial before a petit
jury he was convicted, and sentenced to imprison
ment one month and to pay a fine of one thousand
dollars. He filed a petition in the State Supreme
Court for a writ of habeas corpus, setting forth the
proceedings in the District Court and alleging that
the Act of Congress was unconstitutional. Other

74 JOHN ARCHIBALD CAMPBELL
objections to the proceedings in the District Court
were presented. The. State Supreme Court issued
two writs of habeas corpus for Booth, then in the
custody of the sheriff, to whose actual keeping he
had been committed by the marshal, directing both
officers to produce him before the Court, with the
cause of his imprisonment. Upon the return to the
writ, with a transcript of the proceedings of the Dis
trict Court, the State Court adjudged that the im
prisonment was illegal and directed his discharge.
The Attorney-General of the United States pre
sented to the Chief Justice a petition for a writ of
error, which was allowed, and citation issued and
served on the Clerk of the Supreme Court of the
State. No return being made to the writ, upon the
affidavit of the Attorney-General stating that he
was informed that the Court had directed the Clerk
to make no return to the writ of error and no order
upon the journals or records of the Court concern
ing the same, an order was made directing the Clerk
to make return to the writ. This order was disre
garded, whereupon the Court permitted the At
torney-General to file a transcript of the record and
docket the case, and directed that it stand for argu
ment at the next term without further notice to
either party. Both cases were argued at the Decem
ber Term, 1858, by Jeremiah S. Black, Attorney-
General, for the marshal. No counsel appeared for
Booth or the State.
The Chief Justice, writing for the Court, which
was unanimous, said that the propositions main
tained by the State Court were new in the juris-

THE SLAVERY QUESTION 75
prudence of the United States, and their supremacy
over the Courts of the United States, in cases aris
ing under the Constitution and laws of the United
States, asserted for the first time. After pointing out
clearly the fallacy of the argument and the inevita
ble results of the attitude assumed by the State
Court, he said that he had extended the examination
of the decisions beyond the Umits required by any
difficulty in the questions; that the decisions having
been made by the Supreme Judicial tribunals of the
State, a Court so elevated in its position, which if it
could be maintained would subvert the very founda
tions of the Government, it seemed to be the duty of
the Court, when exercising its appellate powers, to
show plainly the grave errors into which the State
Court had fallen and the consequences to which
they would inevitably lead.
The State Court asserted and exercised the power
to nullify the judgment of the District Court, and
also declared its opinion that the Federal statute
was unconstitutional. This, in the opinion of the
Supreme Court of the United States, rendered it
proper to declare that, in its judgment, the statute,
commonly called the Fugitive Slave Law, was in all
its provisions fully authorized by the Constitution
of the United States; that the Commissioner had
lawful authority to issue the warrant and commit
the defendant, and that his proceedings were regu
lar and conformable to law; and that the jurisdiction
to try and render judgment in the case was within
the exclusive jurisdiction of the District Court.1
1 Ableman vs. Booth, 21 Howard, 506.

76 JOHN ARCHIBALD CAMPBELL
While it was held, and in the United States Senate
declared by Senator Sumner and others, that cer
tain provisions of the Fugitive Slave Law of 1850
were unconstitutional, there could be no doubt that
the question of its validity was for the decision of
the Supreme Court, but, as said by Mr. George W.
Biddle, "The voice of the law was no longer heard
when the fires of war already appeared on the hori
zon." 1
Twelve days after this decision was rendered, the
Legislature of Wisconsin adopted a set of resolutions
reciting the action of the Court and declaring that,
in assuming jurisdiction of the case, the Supreme
Court of the United States was guilty of an act of
arbitrary power, unauthorized by the Constitution
and virtually suspending the benefit of the writ of
habeas corpus. "That the decision was an act of un
delegated power, and therefore without authority,
void, and of no force. It was further resolved that
the Government formed by the Constitution of the
United States was not made the exclusive or final
judge of the extent of the powers delegated to it; but
that, as in all other cases of compact among parties
having no common judge, each has an equal right to
judge for itself as well of infractions as the mode
and measure of redress. That the principle con
tended for by the party which now ruled in the coun
cils of the Nation, that the general Government is
the exclusive judge of the powers delegated to it,
stopped nothing short of despotism. . . . That the
1 History of the Development of American Constitutional Law, 187;
Essays and Speeches of J. S. Black, 417.

THE SLAVERY QUESTION 77
several States which formed that instrument, being
sovereign and independent, have the unquestionable
right to judge of its infractions, and that positive de
fiance by these sovereignties of all unauthorized acts
done under color of that instrument is the rightful
remedy." *
Another illustration of the intensity of the opposi
tion in the Northern States to the Fugitive Slave
Law, and of the determination to prevent its en
forcement, is seen in the case of Kentucky vs. Deni-
son, Governor of Ohio.2 One Largo was indicted in
the State Court of Kentucky for enticing a slave to
leave her owner in violation of the statute of that
State, and fled to Ohio. The Governor of Kentucky
issued a requisition upon the Governor of Ohio, who,
upon the advice of the Attorney-General of Ohio,
that the charge against Largo did not constitute
"crime" within the meaning of the provision of the
Federal Constitution, refused to recognize the req
uisition or to deliver Largo to be removed to the
State of Kentucky. The question, as stated by the
Attorney-General of Ohio, was, "whether, under
the Federal Constitution, the State is under an obli
gation to surrender its citizens or residents to any
other State, on the charge that they have com
mitted an offense not known to the laws of the
former, nor affecting the public safety, nor regarded
1 Tyler: Memoir of Roger Brooke Taney, 397. An interesting his
tory of this case, with the course pursued by the Supreme Court
and Legislature of Wisconsin is given in Political History of Seces
sion, to the Beginning of the American Civil War, by Daniel Wait
Howe, chap. xi.
2 24 Howard, 66.

78 JOHN ARCHIBALD CAMPBELL
as malum in se by the general judgment of civilized
nations." The State of Kentucky, through its Attorney-
General, applied to the Supreme Court, in the exer
cise of its original jurisdiction, to issue a writ of man
damus, commanding the Governor of Ohio to obey
the requisition. The motion was argued by Steven
son, Cooper, and Marshall, for Kentucky, and by
Wolcott, Attorney-General of Ohio, for the Gover
nor of that State. The reporter has set out very
fully the arguments of counsel, and the authorities
upon which they relied. It was conceded that the
proceeding was without precedent. While the char
acter of the writ of mandamus, in English and
American jurisprudence, was discussed at length,
the interest in the argument centers upon the con
troversy in regard to the construction of the word
"crime," as used in the Constitution,1 and the valid
ity of the Act of 1793 regulating the procedure for
enforcing the constitutional provision and imposing
the duty upon the State to return fugitives from
justice. Attorney-General Wolcott insisted that the Act
of 1793 was unconstitutional. He concludes his
argument by serving notice that those whose views
he represented did not propose to submit questions
growing out of the action of the free States regard
ing slavery to the decision of the Federal Courts,
saying: "The power to compose this national and
political strife does not reside in this tribunal; the
pursuing party cannot cross its threshold; the party
1 Art. iv, Section 2.

THE SLAVERY QUESTION 79
pursued is beyond the reach of its arm; the subject
of the difference has been excluded from its action;
and the writ which it is solicited to grant has been
denied to it for the exercise of its original jurisdic
tion." The Court unanimously held that the position
taken by the Governor of Ohio was without consti
tutional or statutory support, and that it was his
duty to obey the requisition. The Chief Justice said:
"But looking to the subject-matter of this law, and
the relations which the United States, and the sev
eral States, bear to each other, the Court is of opin
ion, the words, 'it shall be the duty,' were not used
as mandatory and compulsory, but as declaratory of
the moral duty which this compact created when
Congress had provided the mode of carrying it into
effect. ... It would seem that when the Constitu
tion was formed and when this law was passed, it
was confidently believed that a sense of justice and
of mutual interest would insure a faithful execution
of this constitutional provision, by the Executive of
every State, for every State had an equal interest in
the execution of a compact absolutely essential to
their peace and well-being in their internal concerns,
as well as members of the Union. Hence, the use of
the words ordinarily employed, when an undoubted
obligation is required to be performed, 'it shall be
his duty.' But if the Governor of Ohio refuses to dis
charge this duty, there is no power delegated to the
general Government, either through the Judicial
Department, or any other Department, to use any
coercive means to compel him."

80 JOHN ARCHIBALD CAMPBELL
The decision was clearly right, but, as said by Mr.
George W. Biddle, "There is a tone of almost pa
thetic dignity in the portion of the opmion in which
it is asserted that the performance of the duty in
question was left to depend upon the fidelity of the
State Executive to the compact entered into by the
other States." x
This was the last of the cases which came before
the Court, prior to the Civil War, in which questions
in regard to slavery were involved. The controversy
had passed beyond the sphere of forensic debate and
judicial decision.
Before closing this chapter of Judge Campbell's
life, it will be of interest to note some incidents of a
personal character relating to the Court and the at
torneys practicing before it. But one change in the
personnel came by resignation. Among the regret
table results following the decision of the ill-fated
Dred Scott case was the resignation of Judge Ben
jamin R. Curtis. He assigned, as his reason for re
signing, the meager salary which he received and the
duty which he owed to his family; of course this was
a sufficient reason. George Ticknor Curtis, however,
says: "The pecuniary reason for resigning was the
leading and decisive one . . . the other . . . although
secondary and subordinate, had a material influ
ence." The correspondence between Judge Curtis and
his brother, together with the discussion of the
causes and incidents attending the resignation, is
both interesting and illustrative of the high moral
1 History of the Development of American Constitutional Law, 187.

THE SLAVERY QUESTION 81
qualities and elevated tone of mind and purity of
heart of this learned, distinguished, and, in all re
spects, admirable judge and man.1
Upon learning of his resignation, Judge Campbell
sent to Judge Curtis the following letter:
Washington City
September3, 1857
Dear Sir:
Your letter of the 1st inst. was received this
morning. I deeply regret the decision you have made
to resign your place on the bench of the Supreme
Court. Had I been aware that such a measure was in
contemplation, I should have placed before you an
earnest remonstrance on the subject. There are pub
lic considerations which, in my judgment, render
your resignation a misfortune to the country. I hope
you will not consider it obtrusive or unbecoming in
me to express to you my high appreciation of the
very great abilities you brought to the performance
of your duties, and my respect and veneration for
the integrity with which those duties were habitu
ally and consistently discharged on your part. It is a
great satisfaction to me that our relations on the
bench have uniformly been those of courtesy and
kindness, and I trust that they may, from time to
time, be renewed, notwithstanding this official sep
aration. Mrs. Campbell joins me in sincere regret for
the decision you have made, and in the expression of
esteem and respect for Mrs. Curtis and yourself.
Very truly yours
J. A. Campbell
1 Curtis, G. T.: A Memoir of Benjamin R. Curtis, i, 244.

82 JOHN ARCHIBALD CAMPBELL
Nathan Clifford, of Maine, was appointed to fill
the vacancy caused by Judge Curtis's resignation.
Judge Daniel died December 4, 1860, and at the
memorial meeting of the Supreme Court Bar, Jeffer
son Davis, then Senator from Mississippi, presided.
Edwin M. Stanton made the motion for the appoint
ment of the Committee on Resolutions which were
presented to the Court by Attorney-General Jere
miah S. Black. This was the last meeting of these
eminent men, all of whom were members of the
same political party. Within a year the mutations in
politics and the tragedy of war rendered any per
sonal, professional, or social intercourse between
them impossible.1
During this period two eminent lawyers filled
the office of Attorney-General, Caleb Cushing, of
Massachusetts, and Jeremiah S. Black, of Pennsyl
vania. Edwin M. Stanton served as Attorney-Gen
eral during the last three months of Buchanan's ad
ministration. Of the lawyers who were admitted to
practice in the Supreme Court during Campbell's
term, Alonzo Taft, of Ohio, and Augustus H. Gar
land, of Arkansas, filled the office of Attorney-Gen
eral subsequent to the Civil War; Samuel F. Miller
and Horace Gray filled, with marked distinction,
the position of Associate Justices; William Pinkney
Whyte, Lyman Trumbull, Clement C. Clay, John
H. Reagan, Charles Faulkner, and James R. Doo-
little served terms in the United States Senate;
Charles Andrews became Chief Judge of the Court
of Appeals of New York.
1 24 Howard, vi.

THE SLAVERY QUESTION 83
Among the cases which brought interesting asso
ciations of attorneys into the Court were Corning
vs. Iron and Nail Factory,1 in which Thaddeus Stev
ens and Reverdy Johnson appeared together, with
Horatio Seymour and William H. Seward in opposi
tion; Forsyth vs. Reynolds,2 in which Abraham Lin
coln and Salmon P. Chase appeared on opposing
sides, Lincoln winning the case. Of the attorneys
practicing in the Court, Reverdy Johnson, of Mary
land, and Judah P. Benjamin, of Louisiana, had the
largest number of appearances. Badger, of North
Carolina; Carlisle, Brent, May, and Edwin M. Stan
ton, of Washington; Janin, of Louisiana; George
Ticknor Curtis, of Massachusetts; William H.
Seward and William M. E warts, of New York;
Thomas Ewing, of Ohio; S. Teackle Wallis and
J. Mason Campbell, of Maryland; J. Louis Pettigru,
of South Carolina; John J. Crittenden, of Ken
tucky, and Judge Benjamin R. Curtis frequently
appeared. William H. Seward had declared that the conflict
between slavery and freedom was "irrepressible"
and to be decided by an appeal to the "higher law,"
and Lincoln, while disclaiming any purpose to inter
fere with slavery as it existed in the States, an
nounced as a truth which could lead to no other
result, that the Union could not exist half slave and
half free. Chase, in Ohio, was teaching the people
that "the legislature cannot authorize injustice by
law, it cannot repeal the laws of nature, cannot cre
ate any obligation to do wrong"; and that "upon
1 15 Howard, 451. 2 15 Howard, 561.

84 JOHN ARCHIBALD CAMPBELL
the question of enforcement of the Fugitive Slave
Law, partaking largely of a moral and political na
ture, the judgment of the Court must necessarily be
rejudged at the tribunal of public opinion, the opin
ion, not of the American people, but of the civilized
world." x
No matter how clear and how rigid the constitu
tional provisions relied upon for protection of slav
ery in the States, or the right to carry them into
Territories, when large numbers of well-organized
men in the free States became convinced that the
institution was morally wrong and violated elemen
tary human rights, such provisions could not be
enforced. While in the North and rapidly growing
West, those who wished to see slavery limited in its
extent, and ultimately destroyed, differed in their
method of accomplishing this result, they were in
agreement in their purpose, and equally determined
that constitutional provisions should not be so con
strued as to permit slavery to go into the Territo
ries, or the Fugitive Slave Law to be enforced in the
free States. It was, therefore, but a question of time
when judicial decisions and the process of courts
would be disregarded and, if necessary, forcibly re
sisted. Southern men knew and understood this
truth full well. They knew equally well that, unless
the slave-owner was permitted to carry his slaves
into the Territories and receive the protection of the
National Government, by a process of restriction
and strangulation the system was doomed to ex-
1 Hart, A. B. : Salmon P. Chase, 71, " Higher Law in the North ";
Howe: Political History of Secession, 217.

THE SLAVERY QUESTION 85
tinction, and that the Southern States would, in a
few years, be reduced to a minority in the Union and
without power to protect their political or property
rights. Southern statesmen saw this clearly. The
record of their struggle to maintain what they con
ceived to be their constitutional rights and enforce
its recognition constitutes an interesting and, in
many respects, a sad story.
It is clear enough now, in the light of events, that
they could not succeed. Whether by further compro
mise the inevitable fate of slavery could have been
postponed, or its coming rendered less disastrous to
the welfare of the then generation, is of no more than
speculative interest. Whether gradual emancipa
tion, with compensation, would not have brought,
while in progress, complications and disastrous re
sults to the peace and happiness of both races, is by
no means clear. It was inevitable that, in the at
tempted solution of a problem containing so many
conflicting factors and involving so many and such
varied motives, mistakes should be made. Judge
Campbell was alive to the dangers, and sought by
all means in his power to divert them from his peo
ple and the country. When he failed, he bore his part
of the common misfortunes with loyalty to his State
and section, and this is the standard by which the
conduct of all men under such conditions must be
measured. While quotations have been made with some fuL
ness from several of Judge Campbell's dissenting
opinions, it should not be assumed that he was,
in the usual acceptance of the term, a " dissenting

86 JOHN ARCHIBALD CAMPBELL
Judge." A study of our judicial history, both State
and Federal, vindicates not only the propriety of,
but the valuable service frequently rendered by,
well-considered, strongly reasoned dissenting opin
ions. Illustrations of this truth will readily occur to
the mind of every intelligent lawyer.1
Judge Campbell was a consistent strict construc
tionist of the Federal Constitution and sensitive to
infringement, by judicial construction, upon the re
served domain of State legislation and the judicial
power vested in the State Courts. He knew full well,
from the study of the history of nations and political
institutions, that courts are among the most effec
tive agencies in absorbing and centralizing power at
the expense of local self-government by the amplifi
cation and enlargement of their jurisdiction. He
knew that railroad companies, banks, and other
corporations, with their rapidly increasing expan
sion in power and wealth, would seek in the Federal
Courts a shelter from State control. While he did
not claim finality in his opinions, he did not hesitate
to express strongly his opposition to what he re
garded as a menace to the reserved power of the
States over these legal entities which they had
"called into existence." While his views have not
prevailed against what was probably the inevitable
trend of thought, his opinions are of interest to the
student of our judicial history as illustrations and
expressions of the opposing schools of constitutional
construction. 1 Carson: "Great Dissenting Opinions," Report, Am. Bar Asso.
(1894), 273.

THE SLAVERY QUESTION 87
In the development of constitutional law, the con
servative, steadying influence of a great judge, al
though not always in agreement with his associates,
is wholesome. This is especially true in our system of
government, with its checks and balances, so essen
tial to the preservation of the powerful yet delicate
political and judicial mechanism.
In his opinions Judge Campbell discussed and ap
plied to the facts general principles, sustained by
citations from decisions of the Supreme Court and
from civilians with whose writings he was probably
more familiar than any of his associates. His style
was clear and vigorous: his conclusions were stated
concisely. In the resolutions adopted by the mem
bers of the Bar of the Supreme Court, upon his
death, prepared by A. H. Garland, former Attorney-
General, it was said: "He was a jurist of extensive
and varied learning in the common and civil law as
well, and accustomed to resort to the great sources
of jurisprudence which are the school where profi
ciency can best be acquired in the art of applying
the abstract principles of the law to actual cases."
Judge Campbell survived all of his associates on
the Bench; hence we have no expression from any of
them of their estimate of his services; none survived
to pay tribute to him as he did to Judge Curtis in
words of generous eulogy. As said by Governor
Hoadly of Ohio: "He was the last survivor of that
company of giants over which Roger B. Taney pre
sided. . . . How well he performed his duties, how
fully he fulfilled the expectation of the members of
the Court who solicited his appointment, I need not

88 JOHN ARCHIBALD CAMPBELL
say. . . . We all know him as history has recorded
him, as a grave, serious, careful, clear, logical, per
suasive expounder of the law. As such his fame will
go down to many generations yet to come." 1
1 Memorial Addresses — Justice CampbeU.

CHAPTER IV
ON THE CIRCUIT: FILIBUSTERING AND THE
SLAVE TRADE
Judge Campbell, in accordance with the provisions
of the Judiciary Act and the custom then prevailing,
presided over the Circuit Courts of the Southern
Circuit. A distinguished member of the Bar of New
Orleans says that his appearance was all that could
be desired by the friends of order and government.
"His presence attracted the attention of the public
and his way of controlling and dispatching business
justly brought him the reputation of being a great
Judge." He was called upon to hear many important
cases, involving, among others, questions arising
out of the peculiar system of real estate law, based
upon the French and Spanish Codes. We have no
other record of his decisions and opinions than is
found in the Supreme Court Reports in such cases as
were carried to that Court by writs of error or ap
peal. His judgments in such cases were generally
affirmed. The Bar of the Southern Circuit has, at all
periods in its history, included lawyers of profound
and extensive learning and marked ability, several
of national repute. During the ten years immedi
ately preceding the Civil War, among the most
prominent were Alexander J. Porter, Edward Doug
lass White, George Eustis, Pierre Soule, Charles M.
Conrad, Louis Janin, Judah P. Benjamin, William
H. Hunt, Leroy P. Walker, and Andrew White.1
1 Warren, Charles: A History of the American Bar, 412.

90 JOHN ARCHIBALD CAMPBELL
Among the cases of more than usual interest
which came before the Court was one in which the
heirs of General Lafayette claimed a valuable body
of land under the grant made by Congress to their
ancestor. The New Orleans paper, referring to the
trial, said: "Our new Circuit Judge, John A. Camp
bell, is giving some very remarkable illustrations of
the promptitude with which he dispatches business.
. . . Our lawyers, accustomed to the delays and
tediousness, and never-ending complexities of trials
in the United States Courts, have been greatly
startled at the rapidity of Judge Campbell's deci
sions which, by the way, are as wise, able, and
learned as they are prompt and lucid — exempli
gratia, the decision which will be found in our paper .
to-day, involving the protracted and vexed litiga
tion relating to the property in the rear of our city,
claimed by Lafayette's heirs. The argument in the
case was concluded on Thursday and the next morn
ing Judge Campbell amazed the Bar by reading his
decision in the case. . . . What a pity the Batture
was compromised before Judge Campbell's acces
sion to the Bench." The decree was affirmed on ap
peal to the Supreme Court.1
In the discharge of his judicial duties at New
Orleans, Judge Campbell was called upon to express
his views regarding the conduct of prominent men
engaged in filibustering expeditions against Cuba
and certain Central American countries, which
brought him into sharp conflict with a strong public
sentiment and illustrated his courage in the per-
1 Lafayette vs. Kenton, 18 Howard, 197.

FILIBUSTERING AND SLAVE TRADE 91
formance of his official duties. It is not necessary to
enter into the history of the long and unsuccessful
efforts to secure the freedom of Cuba. Reference will
be made to them only so far as is necessary to under
stand the events which imposed upon Judge Camp
bell the discharge of duties bringing him into con
flict with popular opinion.
Among other prominent citizens charged with
violation of the neutrality laws in connection with
the Cuban Rebellion was John A. Quitman, at that
time Governor of Mississippi. Immediately upon
learning of the indictment against him, Governor
Quitman resigned his office and voluntarily ap
peared before the Circuit Court at New Orleans.
The trial of Henderson and other persons indicted
at the same term having resulted in the disagree
ment of the jury, a nolle prosequi was entered to the
indictment against Governor Quitman, in February,
1851. But the failure of the Lopez expedition, with
its tragic results, did not put an end to the agitation
or formation of plans by American citizens for the
invasion and ultimate annexation of Cuba to the
United States. The situation had become so acute
that President Pierce, following the example of
President Fillmore, issued a proclamation warning
the people against the violation of the laws of neu
trality.1 At the Spring Term, 1854, of the Circuit Court at
New Orleans, Judge Campbell charged the grand
jury at length, regarding the neutrality laws, espe
cially those provisions of the statute which declared
1 Richardson: Messages and Papers of the Presidents, v, 272.

92 JOHN ARCHIBALD CAMPBELL
that an organization or combination formed for the
purpose of invading Spain with force and arms was a
violation of the neutrality statute; that it was not
necessary that arms should be furnished to the men
in the United States, or that the expedition should
leave the United States. The evidence of such a plan
would consist in the formation of companies, asso
ciates, or organized bodies of men in the United
States, animated by a hostile purpose against the
Spanish authorities and having, as their ultimate
destination, Spanish territory, to accomplish that
purpose with force. He instructed them that all who
aided or assisted in the formation of such plans, by
donations or loans of money; by the purchase or sale
of securities for the payment of money issued by a
revolutionary committee or government, if designed
for the use of such an expedition and intended to
facilitate it; by speeches, letters, or publications,
advising, encouraging, or persuading persons to join
in such enterprises, were equally guilty as those who
actually took part in such expeditions.
In his construction of the Act of Congress he fol
lowed the decision of the Supreme Court in Kennett
vs. Chambers.1 He urged the grand jury to make
diligent inquiry for the purpose of ascertaining
whether any persons within the jurisdiction of the
Court had violated the law. Referring to recent
events in Boston, in connection with the enforce
ment of the Fugitive Slave Law, he said: "There is
a consideration to fortify you in the performance of
this duty, which is particularly operative at this
» 14 Howard, 24.

FILIBUSTERING AND SLAVE TRADE 93
time. The exercise of some of the powers conferred
in the interest of one section of the Union, inflicts a
wound upon the sensibilities of other sections of. the
Union. Some of these powers are deemed of vital
importance to this portion of the United States. We
exact the fulfillment of the compact in which they
ixe formed with strictness, and applaud the power
that maintains them. Not long ago, one of the cities
of the Northern section of the United States was in
volved in riot and disorder in the attempt to main
tain these stipulations. This portion of the Union
regards these expeditions with abhorrence, as de
signed to secure sectional advantages by piratical
and lawless outrages; by the sacrifice of the faith of
treaties and the prostration of national character.
They offend their sense of right, jeopard their mate
rial interest, and mortify their national pride. How
can we expect these people to maintain their com
pacts with us when we display indifference to those
to which we are parties, and in which they are so
deeply interested? No class or body of men in this
quarter of the country should be countenanced in
placing our communities in a condition so fatal to
their own interest. In my judgment it is the duty of
all good citizens to frown indignantly upon all such
lawless enterprises and to aid the public authorities
in maintaining the laws enacted to preserve the
faith of the Union." x The charge was published in
full in the New Orleans papers and elicited sharp
criticism, the portion referring to the recent events
in Boston being especially resented.
1 Chase, F. H.: Lemuel Shaw, 176.

94 JOHN ARCHIBALD CAMPBELL
On July 1, 1854, the grand jury made a report to
the Court, stating that they had cited a number o{
citizens before them as witnesses, for the purpose of
ascertaining whether, as rumored in the city, there
was an expedition on foot, the tendency and purpose
of which was to violate the neutrality laws of the
United States. Among the witnesses cited were sev
eral whose names figured most prominently with the
rumored expedition, who declined to testify on the
ground that to do so would criminate themselves,
under the ruling of the Court. They also reported
that the impression had been made upon their minds
that the rumors were not altogether without founda
tion; that they inferred that meetings had been fre
quently held upon the subject of Cuban affairs; and
that what were termed Cuban bonds had been is
sued and funds had been collected either by contri
butions or sale of the bonds, or promises to pay, to a
considerable amount, which would be at the disposal
of Cuban revolutionists; but that they had not been
furnished evidence upon which they could find a bill
of indictment against any one. They laid before the
Court the names of those persons who had refused
to testify. The grand jury further reported that they
were of the opinion that, while much had been writ
ten in regard to the subject, the facts were overrated
and magnified, nothing like a military organization
or preparation having been brought to their notice.
That there were a large number of citizens of the
United States whose feelings and sympathies were
deeply interested in behalf of what was termed the
Creole or native population of the Island of Cuba,

FILIBUSTERING AND SLAVE TRADE 95
there could be no question. However, they did not
• .think any organized plan existed looking to a mili
tary expedition or hostile movement. The grand
jury deemed it inexpedient to prosecute the exami
nation of witnesses any further at the present time,
but declared that they would continue to make dili
gent inquiry in relation to the subject and report
further to the Court.
Upon receiving the report, Judge Campbell di
rected it to be spread upon the minutes of the Court
and a copy transmitted to the Secretary of State.
He expressed his gratification at the action of the
grand jury and said that the language which he had
used was that of the Supreme Court. He said that he
would require the witnesses who had declined to
testify to enter into bonds with security to obey the
laws of the United States, and thereupon issued an
order requiring John A. Quitman, J. S. Thrasher,
and A. L. Saunders to appear at an hour named to
show cause why they should not be required to give
such bonds to obey the laws for nine months. At the
hour named General Quitman appeared and said
that, upon being informed that a subpoena had been
issued for him, he had appeared voluntarily before
the grand jury; that he had been dismissed by the
jury, and now wished to know if he was accused of
any offense, and if so of what nature and who was
his accuser. He desired to behave with all respect to
the Court, but also to maintain his rights as an
American citizen.
Judge Campbell said that General Quitman's
question was pertinent, explained to him the report

96 JOHN ARCHIBALD CAMPBELL
of the Grand Jury, and referred to several matters
not appearing in the report. General Quitman re
plied that he was at a loss to understand how what
occurred before the grand jury became public; that,
so far as he was concerned, the report was not cor
rect, as he had not stated that an answer to any
question asked him would tend to criminate him. In
defense of his right as an American citizen, he would
refuse to enter into a bond unless subjected to such
duress as conflicted with his duty to others. He
called attention to the fact that no affidavit had
been made, no specific offense charged, and the re
port of the grand jury was vague. To the suggestion
by the Judge that he could take time to investigate
the law, General Quitman replied that he preferred
to have the matter brought to an issue at once, and
was willing to be considered as having declined to
answer the question submitted to him by the grand
jury- After discussion by Mr. Waul, counsel for Quit
man, and Mr. Moise, the District Attorney, Judge
Campbell stated that he had investigated the au
thorities and reached the conclusion that, not as
punishment for a crime committed, but for prevent
ing the commission of a crime, of which the Court
found reasonable ground to apprehend, he had the
power to require the respondents to enter bond to
obey the law, and that he would be recreant to his
duty if he failed to do so. An order was entered ac
cordingly. But Quitman and the other respondents
raised the question whether, upon the report of the
grand jury alone, without affidavit, or any act com-

FILIBUSTERING AND SLAVE TRADE 97
mitted or threatened in the presence of the Court,
the Judge could ex mero motu require them to enter
into such a bond, and they refused for the time being
to do so. The Judge, however, was firm in his opin
ion, and promptly ordered the defendants, as he in
accurately termed them, into the custody of the
marshal. His action brought forth such a storm of
criticism and denunciation from the newspapers
which sympathized with the filibuster movement
that he filed with the Clerk an opinion setting forth
the grounds upon which he based the order and
the authorities sustaining his position. A copy of the
opinion was furnished to the city papers by the
Clerk, at their request. Judge Campbell referred to
Quitman as "an accomplished soldier, having a
large share of the public confidence, especially in
those States which border on the Gulf of Mexico."
He was a man of marked ability, had won fame as a
soldier in the Mexican War, had filled with distinc
tion the office of Chancellor, and had been elected
Governor of Mississippi. At the time of his contro
versy with Judge Campbell, he was the most popular
man in Mississippi. Quitman's answer was a spirited
defense of his course and a severe arraignment of the
Judge for the manner in which he had dealt with
him. He filed the bond, as required, under protest.
The editorials attacking Judge Campbell disclosed
the existence of public sentiment favoring the libera
tion of Cuba. This fact was the ground of the attack
on the Court.
A well-prepared and temperate article was pub
lished in the "True Delta," signed "S. N. T.," who

98 JOHN ARCHIBALD CAMPBELL
was described by the editor as "an esteemed and
able jurist." It is probable that the author of this
article, written at the time, has given a fair account
of the incident which subjected Judge Campbell to
the criticism of the partisans of the Cuban cause. He
says: "Undoubtedly the people of this city are
much in favor of the annexation of Cuba to our Con
federacy and sympathize strongly with all efforts of
the population of the island to effect that object. Yet
it is also true that we entertain a deep respect for the
laws of our country, as well as for the persons of
those who fill judicial stations, and it is not in our
nature to be otherwise than dissatisfied at seeing an
upright Judge, no less conspicuous for his probity
than his great legal acquirements, openly accused of
arbitrary conduct in office, dangerous to the liber
ties of the citizen, and hostile to those principles of
constitutional and common right which are at once
the guide of the magistrate, the shield of the citizen,
and the protection of society." He proceeds to exam
ine the charges contained in General Quitman's let
ter, and points out, by reference to the record made
by the grand jury, and the occurrences in the court
room, that they are either without foundation or in
accurate. In regard to the legality of Judge Campbell's ac
tion, the writer says: "There is probably no doubt
in the mind of any one who has examined the law.
To the thorough vindication of that right contained
in Judge Campbell's opinion, no one will be pre
sumptuous enough to believe that they can offer any
improvement; no attempt of the kind will be made

FILIBUSTERING AND SLAVE TRADE 99
here; none can read it without being convinced."
After quoting from the Federal statute conferring
upon Federal Judges the power to hold persons to
the security of the peace and for good behavior in
cases arising under the Constitution and laws of the
United States, he says:
"Those powers are ample; they clothe the Judge
with all the powers of those magistrates whose pe
culiar function it is to guard, by preventive meas
ures, that peace which is the sole foundation of the
social structure and in comparison with which all
individual rights are necessarily subordinate. . . .
Whether Judge Campbell had sufficient ground to
act upon, in the case of General Quitman, some may
be disposed to doubt, some to deny, but it will be
difficult for any cool and candid man to review the
whole case and say that, under the circumstances,
Judge Campbell was not right; and it is believed
that there is not a man in New Orleans who will be
unwilling to admit that the Judge acted under the
deepest and most enlightened sense of his responsi
ble duties.
"None will more cheerfully accord to General
Quitman, than the writer of these lines, the full meed
of praise for all the noble deeds he has done for his
country; none follow him more ardently in his as
pirations for the extension of American institutions
to the people of Cuba; but truth should be vindi
cated at whatever cost; and the extension of Ameri
can principles will need no attack upon the integrity
and honor of the American Judiciary."
A distinguished lawyer who witnessed the course

100 JOHN ARCHIBALD CAMPBELL
pursued by Judge Campbell said: "No man could
have borne himself with more dignity or wisdom, in
the severe ordeal to which he was then subjected.
. . . There never was a nobler spectacle presented in
a Court of Justice, than this magistrate wisely and
calmly controlling turbulence and vindicating the
majesty of the law." J
George E. Badger, referring in the United States
Senate to the courage exhibited by Judge Curtis,
presiding at Boston, and Judge Campbell at New
Orleans, said: "I refer to the fact merely of the ex
citement — the popular outcry and the manly firm
ness of the Judges. I ask how important it must be
— how inexpressibly important for our Country and
its institutions it is, and must ever be, to have the
Bench adorned by magistrates possessing and ex
hibiting such qualities, by men standing like a rock,
against which the waves of popular passion and the
tumultuous outbursts of angry and excited and se
ditious men may harmlessly break, leaving the lofty
and august form of judicial power uninjured and
towering far above them." 2
At the June Term, 1858, of the Circuit Court at
New Orleans, Judge Campbell was called upon to
try the case against William Walker and Frank An
derson, for violation of the neutrality laws in organ
izing an armed force and invading Nicaragua and
Costa Rica. In his charge to the grand jury, prior to
the finding of the indictment, Campbell reviewed
1 Bayne, Thomas L.: Memorial Addresses — Justice Campbell.
2 An interesting history of General Quitman's connection with
the "Cuban Cause" is given in Claiborne's Life of General John
A. Quitman, n, 196 et seq.

FILIBUSTERING AND SLAVE TRADE 101
the neutrality laws of this country, concluding with
the instruction: "No citizen of the United States,
within its territory or jurisdiction, can accept and
exercise a commission, or enlist as a soldier, marine
or seaman; or engage another to enlist as a soldier,
seaman, or marine, or to go beyond the United
States to do so, to serve against a State, people, col
ony, or sovereign, with whom the United States are
at peace. Nor can they, within our ports, fit out or
arm, or attempt to procure arms, or be concerned in
such acts."
The jury failed to reach a verdict and the Dis
trict Attorney entered a nolle prosequi. Judge Camp
bell required the defendants to enter into security,
binding them to obey the neutrality laws. Walker
and his friends, as appeared to be customary in such
cases, criticized the Judge in a public speech. A
newspaper controversy resulted in which, of course,
Judge. Campbell took no part.
In connection with, and as an incident of, this
trial, Judge Campbell was tendered a public dinner
by a number of citizens of Mobile. "As a testimonial
of the estimation in which they continue to hold you
for the learning, firmness, and purity with which you
have discharged the duties of your exalted posi
tion." Percy Walker, a brother of General William
Walker, joined in the invitation, saying that, while
he sympathized with his brother's efforts to "Ameri
canize Nicaragua, and did not approve of several
of Judge Campbell's acts, and while, as a private
citizen, his anxiety to secure for the Southern States
a controlling position in Central America might

102 JOHN ARCHIBALD CAMPBELL
cause him to trench closely upon a breach of the
neutrality laws, yet he had no right to condemn a
Judge for enforcing them."
Judge Campbell, in declining the invitation,
wrote: "The station I occupy is one of grave re
sponsibility and its duties are full of difficulties. A
declared object of the Constitution of the Union is
to establish justice, and of the justice of the United
States the Supreme Court is the special depository.
. . . The very nature of this jurisdiction compels the
judicial magistrate of the Union to disregard those
attachments and to control those affections which
would give a preference to special interests or local
advantages. In favor of the general law, he must re
strain the aggressive selfishness, or restless egotism,
that would evade or subvert it; he can make no
compromise with the lawlessness, force, caprice, de
ceit, or cunning that would overturn a policy of the
Union. He can have no other aim than to maintain
the Constitution and the laws, and the treaties that
conform to it, in the fullness of their spirit and the
exactness of their letter with honor or safety. This
has been the object of my judicial life."
At a Special Term of the Circuit Court at Mobile,
November, 1858, Judge Campbell delivered a charge
to the grand jury, which subjected him to criticism
from those who were engaged in attempts to revive
the slave trade. He denounced the traffic as piracy,
and urged the grand jurors to discharge their duty
by bringing in bills of indictment against those who
aided and abetted, directly or indirectly, in violat
ing the statutes. He called their attention to the fact

FILIBUSTERING AND SLAVE TRADE 103
that offenders against the law hoped to escape
through the failure of the officers to perform their
duty; that they relied upon a depraved and disso
lute public sentiment favoring the slave trade, or a
belief that sentiment can be so debauched in regard
to the Federal Union and Government that a firm,
steady, and exact administration of the law can be
prevented against the slave trade; that those who
held such opinions expected the law to be nullified
by the failure of grand and petit juries to discharge
their duty. He further said that it could not be de
nied that numerous instances of eccentricity on the
part of juries had brought reproach upon, and some
distrust of, this great institution of the common law;
that the Court had received information, but not
evidence, that persons engaged in carrying on the
slave trade had imported African slaves into the
District; that they had sold, purchased, and dis
posed of them here in violation of the laws of the
United States. He told the grand jurors that they
had been called together for the specific object of
making diligent inquiry into the charge that the law
was being violated; that he had entire confidence
that they would discharge their duty.
At the May Term, 1858, of the Court at New Or
leans, the "New Orleans Bulletin" said: "Judge
John A. Campbell delivered an elaborate charge to
the grand jury, in regard to the African slave trade.
... He gave a history of the legislation of the vari
ous Congresses upon this subject, extending from
the Continental Congress in 1774 down to the final
acts of 1820, all going to show in what light the

104 JOHN ARCHIBALD CAMPBELL
trade was held by men of all parties and from every
portion of the land, including all the illustrious men
of the country, and expressing the conviction of the
Court that the same feelings and opinions which
have prevailed for so long a period upon the subject
still prevail in the minds of a vast majority of the
people of the United States, East, West, North, and
South." The "Savannah Republican" referred to the
charge delivered by Judge Campbell as "one of the
ablest and most decided" that the editor had ever
read, saying: "It is devoted exclusively to the slave
trade and filibusterism, and reasserts, more point
edly and emphatically than before, all the general
positions which the same honest, fearless, and inde
pendent jurist assumed in reference to those sub
jects in his charge to the grand jury, at the same
place some months before, and was delivered, as the
papers inform us, with an earnestness that elicited
profound attention. The Judge is thoroughly in
earnest, and intends that, so far as depends on him,
the laws shall be fully executed in letter and spirit.
That this course of Judge Campbell will raise him in
the estimation of the great mass of respectable and
intelligent citizens of the country, South and North,
East and West, irrespective of party, cannot, for
a moment, be doubted. He has shown himself the
incorruptible and fearless Judge who plainly lays
down the laws and calls upon his sworn co-associates
to perform their whole duty in executing them to
their fullest extent."
Judge Campbell had given to the institution of

FILIBUSTERING AND SLAVE TRADE 105
slavery, in all of its aspects, anxious thought and
careful study. He wrote for the "Southern Quarterly
Review" x an article in which he traced the origin of
slavery in different countries and conditions, in
cluding its introduction into the American Colonies.
He examined and analyzed the debates in the Con
vention of 1787, followed with a history of the rise
and progress of the movements in England and
America for its abolition, and discussed the effect of
these movements upon the relation of the master
and slave. He was not concerned in the defense of
the institution or the course pursued by its advo
cates or opponents, but rather with the duties and
responsibilities imposed upon the governing class.
Regarding the situation in the United States and
the duty of the Southern people, he says:
"We do not resist the conclusion that the South
ern States are environed by difficulties of a trying
character, and that the counsels of cool, dispassion
ate, and circumspect statesmen are needful for their
removal. . . . The experiments in the islands of the
West Indies, by the different European Powers,
fully prove that the negro race is susceptible of great
improvement and thrives by liberal and indulgent
treatment. Our own experience confirms the same
fact, and we believe the intercourse between master
and the slave in the Southern States is, in general,
that of kindness and good-will. Some of the codes of
the States, however, do not bear that expression,
and we think that a general mitigation of the pun
ishments for crime might be effected without im-
» June, 1847, xii, 91.

106 JOHN ARCHIBALD CAMPBELL
pairing the efficacy of the punishment. Some of the
provisions of the codes are the remnants of British
Colonial legislation, and others have been intro
duced under circumstances of excitement. They re
main without execution and serve only as arguments
of reproach.
"A more important alteration of our laws con
sists in the extension to slaves of a protection in
their domestic relations. The connection of husband
and wife, and of parent and child, are sacred in a
Christian community, and should be rendered se
cure by the laws of a Christian State. The Church,
centuries before the abolition of personal slavery,
restrained by personal censure the power of masters
to separate husbands and wives. Louis XIV, in the
'Black Code' for two colonies, introduced provi
sions for the same object. The Southern Churches
require their members (slaves) to form permanent
connections. There is an obvious propriety in plac
ing them under the protection of the laws.
"A reform scarcely less important consists in ren
dering the relation of master and slave more perma
nent. It is now liable to be disturbed in every change
that occurs in the pecuniary condition of the master.
The liability of the slave to change his relation on
the bankruptcy of his master, and the frequency
with which it occurs, has greatly deteriorated then-
character and deprived the relation of some of its
patriarchal nature. The condition of families should
be permanent. Those domestic relations which con
tribute so much to the happiness of the members
should not be severed at the pursuit of a creditor.

FILIBUSTERING AND SLAVE TRADE 107
The great end of society, the well-being of its mem
bers, would surely be promoted by withdrawing
slaves, in some measure, from the market, as a basis
of credit. In reference to this same subject, we may
point to the necessity of a greater diversity of em
ployments among the slave population and a conse
quent increase of their mental cultivation; to the
prodigious increase of their numbers and the neces
sity for more abundant supplies of moral and reli
gious instruction.
"We sum the whole of our duties in adverting to
the fact that our systems were formed when the
blacks were fresh from their native Africa, with
gross appetites and brutal habits; that their num
bers were, in comparison, trifling; and that they
were considered with simple reference to their rela
tions with their masters. They form now a large and
continually growing community; within this cen
tury they will number 10,000,000. We must not ex
pect that the regulations which suited their first
condition can continue, or will be appropriate. A
statesman could fulfill no task more useful than that
of adapting our laws to the varying wants of our so
ciety. We know of no responsibility more sacred
than that which devolves upon the directing minds
of our Southern States, of maintaining sound prin
ciples on this subject. We ought not to ally ourselves
with the worn-out maxims of other ages, but main
tain steadily and systematically the ascendancy of
those principles of progress and amelioration which
are the vital essence in the growth of a well-organ
ized society."

108 JOHN ARCHIBALD CAMPBELL
Judge Campbell was a member of the Convention
of the Southern States held at Nashville, Tennessee,
June 6, 1850, and introduced the resolutions which,
with slight change, were adopted, setting forth the
attitude of the people of the Southern States in re
gard to slavery in its relation to the Territories.

CHAPTER V
EFFORTS TO AVERT CIVIL WAR
Judge Campbell had avoided being drawn into the
turbulent political currents which, under the influ
ence of men, North and South, of extreme views and
revolutionary purposes, were rapidly carrying the
country into civil war. He had devoted his entire
time to the discharge of his judicial duties, as shown
by the Supreme Court Reports, at each term writ
ing his proportionate share of the opinions. Several
editorials appeared during the spring of 1860, refer
ring to Judge Campbell as a possible, if not probable,
compromise candidate for the Presidency. They sug
gested his acceptability to the Northern Democrats,
if Judge Douglas could not be nominated, referring
to the position which he had taken and his courage
in dealing with attempts to violate the statutes pro
hibiting the slave trade and filibustering. There is no
evidence that he took any notice of the suggestion
and it is quite certain that he had no political aspira
tions. Like all other thoughtful men, he could not
fail to see and be impressed by the dangers threaten
ing the peace of the country, as the political parties
divided along sectional lines, with the certainty that
the more conservative elements were being swept
aside by those who were determined to force the
question of slavery to the forefront.
The campaign of 1860, resulting in the election of
Mr. Lincoln by a strictly sectional vote, strengthened

110 JOHN ARCHIBALD CAMPBELL
Campbell's fears and excited his apprehension in
respect to the course which the Southern leaders
would take. In a letter to his brother-in-law, Daniel
Chandler, of Mobile, Alabama, referring to the elec
tion, he wrote: "The election for electors of Presi
dent and Vice-President, having resulted in favor of
the Republican Party, the persons chosen by them
must be inaugurated if the Constitution and laws
are to remain in force. The single question is whether
the fact of their election affords a legitimate cause
for the overthrow of the Union, of the Constitution
and laws, and a consequent dissolution of these
States. I shall not consider the question of the natu
ral, moral, or constitutional right of the people of
Alabama to dissolve the Union. My purpose is
simply to consider the reasons assigned for exercis
ing the right, supposing it be conceded."
After setting out the preamble and resolutions of
the General Assembly of Alabama calling a conven
tion, adopted prior to the election, discussing the
attitude of the Republican Party toward slavery, he
says: "But the question is, whether Mr. Lincoln
will come to the Presidential office with 'the unmis
takable aim to pervert the machinery of govern
ment to the destruction of its members.' Does this
election show an integral of mischief, calculation,
malice, dispositions, regardless of constitutional or
confederate obligation, and fatally set to work
wrong and injustice? No man, no body of men, is
authorized to arouse the evil passions, the restless
desires, proscription, hate, revenge, incident to revo
lution; nor to disturb the clear and written law, the

EFFORTS TO AVERT CIVIL WAR 111
deep-trod footmarks of duty, quiet, content, and
repose of civil society, upon grievances, speculative
and contingent, or upon the apprehension of evils
that are not imminent and beyond the reach of
regular and constitutional modes of redress."
After pointing out the constitutional limitations
upon the Executive and referring to instances in the
history of the country, especially the election of
Jefferson and Jackson, when excited apprehensions,
arising from intense political feelings and passions
were not realized, he says: "The fact that Mr. Lin-i
coin has been chosen President of the United States,
in my opinion, is not sufficient cause for the dissolu
tion of the Union. The circumstances of his election
impose the duty of moderation on his part and cir
cumspection on the part of his supporters in all that
concerns the irritating and disturbing question of
slavery. He is under an imperious necessity to mould
his measures of administration so as to conciliate the
sober and calm judgments of the people. I do not
fear the influence of his party over him or his own
disposition. There is a radical division in his own
party, and he was chosen because he was more con
servative and constitutional in his opinions and
ideas than his opponent. My inquiries of most re
spectable and reliable gentlemen who know him,
confirm me in this opinion."
In another letter to Chandler, two days later, re
ferring to Seward's use of the words "irrepressible
conflict," Judge Campbell says that he did not at
tach to them the same importance as many others
had done, and concludes his discussion by repeating

112 JOHN ARCHIBALD CAMPBELL
the opinion that the election of Lincoln did not af
ford sufficient ground for dissolving the Union. He
insisted that the legal status of slavery in the Terri
tories was upon a satisfactory foundation: that the
subject of the rendition of fugitive slaves could be
adjusted to the satisfaction of the owner, and that
separate State action would result in the discredit
and defeat of every measure for reparation and se
curity. He says: "My commission will not be af
fected by the action of the State. But I determined,
many years ago, that my obligation was to follow
the fortunes of her people. I shall terminate my con
nection with the Government as a consequence of
her acts." This letter was published in the Mobile
"Daily Mercury," May 17, 1861.1
On January 21, 1861, Campbell wrote to Chand
ler, "I think the result of the entire movement [in
Alabama] will be injurious to the other States."
His letters and conduct establish, beyond contro
versy, that he understood and appreciated the grave
situation by which the Southern people were con
fronted. He was of the opinion that they were en
titled to expect and to demand the recognition and
enforcement of their constitutional rights in the
Union. His views in respect to these rights and the
extent of the power of Congress to restrict them
were expressed in his opinion in the Dred Scott
case. He also believed that, unless these rights were
recognized and protected, and unless the agita
tion of the question of slavery within the States
1 George W. Duncan, Alabama Historical Society Transactions,
1904, vol. 5. Reprint, 33.

EFFORTS TO AVERT CIVIL WAR 113
should cease, the Union would be dissolved, but
that if the people were guided by moderate coun
sel and patriotic purpose, this calamity could be
averted. The discussion was rapidly passing from the do
main of law into a sphere where sectional hatred and
passion controlled, and those who represented and
expressed these feelings and passions in both sec
tions of the country were in control. Many thought
ful, patriotic, patient men hoped and believed that,
by the recognition of constitutional obligations and
enforcement of constitutional guarantees, the peace
of the country could be maintained and the Union
preserved. These men did not comprehend or appre
ciate the intensity of feeling and the far-reaching
effect of the agitation which was being carried on by
the extreme men of both sections. It is supposed,
and is probably true, that of those who had a clear
conception of the character of the controversy and
the ultimate outcome of the struggle, Lincoln stood
in the forefront. He had declared in his debate with
Douglas that "a house divided against itself cannot
stand," and yet, on December 22, 1860, he wrote
Alexander H. Stephens i1 "Do the people of the South
really entertain fears that a Republican Administra
tion would directly or indirectly interfere with the
slaves or with them about the slaves? . . . The South
would be in no more danger in this respect than it
was in the days of Washington. . . . You think slav
ery is right and ought to be extended, while we think
it is wrong and ought to be restricted. That, I sup-
1 Stephens, A. H. : The War Between the States, n, 266.

114 JOHN ARCHIBALD CAMPBELL
pose, is the rub. It certainly is the only substantial
difference between us."
Judge Campbell's letters, during these months,
expressed deep solicitude and anxiety, with a fixed
purpose to do all in his power to allay excitement
and counsel the people to sanity of thought and
moderation of speech and action. He insisted that
the election of Lincoln did not justify the action or
movements of extreme Southern leaders looking to
a dissolution of the Union. On December 19, 1860,
he wrote former President Franklin Pierce that he
had conferred with the President and advised him to
send accredited commissioners to each of the States
in which it was proposed to hold conventions.
"There is," he said, "a wild and somewhat hysteri
cal excitement in all the Southern States, and espe
cially in the tier of States from South Carolina west
to the Mississippi. . . . Those who have attempted
to withstand the current require support from with
out. I have stated to the President that I know of no
other persons in the United States whose influence
could be exerted so effectively in Alabama as yours,
and I thought that you would not hesitate to do
whatever lay in your power to mitigate or to avert
the calamity of a disunion of the States. ... I
believe that a final settlement of this slavery ques
tion should be made, or that disunion should fol
low. Agitation cannot be carried on further with
out a civil war. The question is for both sections,
Shall we part in peace, or shall we make a consti
tutional settlement of every open question? I think
that a constitutional settlement, at all events, is

EFFORTS TO AVERT CIVIL WAR 115
better, far better, than a sudden and violent dis
ruption." Pierce, replying to this letter, said: "I doubly
honor the devotion with which you cling to the
Union." He expressed the belief that, notwithstand
ing the "gloom, which has overshadowed us for the
last few weeks, seems to be now shutting down more
closely, densely, darkly," the people of the North
ern States would secure to those of the South their
constitutional rights, saying, "Many of them, I
have no doubt, are reading to-day with new light
and profound surprise the concise and masterly ad
dress of Ex-Chief Justice Shaw, Ex-Justice Curtis,
Chief Justice Parker, and their associates." *¦
On December 29, 1860, Campbell wrote Pierce
that he had submitted his letter to the President
and Judge Nelson, "both of whom approve it
strongly and suppose that its publication in Ala
bama would be of service at this juncture." He
writes despondently of the future, being convinced
that the radical element would control, and conclud
ing his letter, says: "I cannot hope that the United
States more than any other country can be, for any
great length of time, exempt from threatening civil
commotions. They have existed at other periods of
our history and we must expect them to recur. This
controversy in respect to slavery disturbs the foun
dations of the social system. It renders not only
property insecure, but disturbs the repose and order
of the family as well as the community. Throughout
1 Curtis: A Memoir of Benjamin R. Curtis, i, 327; Chase: Lemuel
Shaw, 177.

116 JOHN ARCHIBALD CAMPBELL
the South there are rumors of insurrectionary at
tempts and conspiracy promoted by white men, sus
pected of being sent to the South for the purpose.
I suppose that many of these rumors have no foun
dation and that all the facts of any case are exagger
ated. But no community can exist and prosper when
this sense of insecurity prevails."
The attitude of the men who hoped for and be
lieved compromise possible is illustrated by a con
versation between John J. Crittenden, William H.
Seward, Stephen A. Douglas, and Judge Campbell
in February, 1861, of which Campbell made and
preserved a "memorandum," in which he wrote:
"At a dinner given by Senator Douglas to the
French Minister Mercier, quite a large party was col
lected. Among the guests were Crittenden, Seward,
of the Senate, General Wilson and Miles Taylor,
of the House of Representatives. During the din
ner 'Mr. Seward was called on for a sentiment. He
required the company to fill their glasses to the
brim and drain them to the bottom; that his was the
sentiment which was worthy of that homage and
that all could join in rendering it. His toast was:
'Away with all parties, all platforms, all previous
committals, and whatever else will stand in the way
of restoration of the American Union.'
"After that dinner was over, Mr. Crittenden and
myself engaged in an earnest conversation upon the
subject of his resolutions and the condition of the
country. While I was speaking to him on the subject
of slavery, he ran from his seat and said that Seward
must hear the conversation. He left me and found

EFFORTS TO AVERT CIVIL WAR 117
Mr. Seward and brought him back requesting me to
repeat what I had been saying to him. My observa
tions were that slavery ought not to form a cause for
the dissolution of the Union; that it was a transitory
institution and would necessarily be modified or ab
rogated in the process of time; that it had been regu
larly receding to the South and Southwest since the
adoption of the Constitution, and now more rapidly
than at any time before; that so regular was the im
migration that it almost followed a law and that its
progress might be calculated; that the States at the
mouth of the Mississippi River were the most favor
ably situated for the maintenance of the institution,
and although these had been opened to immigration
for more than half a century, they were not yet sup
plied; that immigration was setting rapidly to them
from the border States; that any political action to
affect slavery must operate in these States to be
effectual, and that for twenty-five years, the wants
of these States would not be supplied with slaves,
nor would the tide of emigration go beyond them.
Mr. Seward said, ' Say fifty years.' I continued that
Congress had already adopted a resolution to amend
the Constitution to protect slavery from the action
of the Federal Government in any form, and, there
fore, that no operative action could be taken, politi
cally, for fifty years. Mr. Seward said, 'My amend
ment contains the gist of the whole matter.' I replied
that I regarded his amendment as the most far-
reaching and important measure that could be pre
sented on that subject, and that, coming from him, I
regarded it as a concession, for that he had taught

118 JOHN ARCHIBALD CAMPBELL
the Northern people that the power to amend the
Constitution had been given principally to enable
them to abolish slavery in the States if the States
did not do so. Mr. S. said, 'I know it, Sir, I know it.'
I continued that slavery being preserved in the
State, the only open question as to it was as to slav
ery in New Mexico; that the Territory had been
opened for slave emigration for ten years and only
twenty-nine slaves had been carried with them. He
said, 'Only twenty-four, Sir.' I asked him how he
could reconcile it to himself as an American states
man to suffer the American Union to be jeoparded
by any question concerning slavery in a Territory
where, after an opportunity for ten years, only
twenty-four slaves had been carried. Mr. S. went to
a center-table, poured some brandy into a glass, and
was joined by Mr. Crittenden and Mr. Douglas. He
said to them, 'I have a telegram to-day from
Springfield, in which I am told that Simon Cameron
will not be Secretary of the Treasury and that Sal
mon P. Chase will be, and that it is not certain that
Simon Cameron will have a place in the Cabinet,
and my own position is not fully assured. What can
I do?' They replied, 'I see your situation,' the one
echoing the sentiment of the other."
That Judge Campbell believed that a State had a
right, when a majority of its people in convention
assembled so determined, to secede from the Union,
was well known. He had ten years before publicly
declared his opinion in regard to this question. In a
letter of August 13, 1850, addressed to a mass meet
ing in Montgomery, he said : "Whenever the Federal

EFFORTS TO AVERT CIVIL WAR 119
Government, and, much more, when a single depart
ment of the Federal Government, upon a question
— a question as to disputed title to property — shall
venture to employ the army and navy of the Con
federacy to subdue one of its members, it is clear
that the very foundations of the Union are at once
subverted." In an article in the "Southern Quar
terly Review" (January, 1851), he wrote: "A State
may dissolve its relation to the Union at its pleasure.
Most of the States have declared the inherent and
inalienable power of modifying their government as
the fundamental principle of their social compact,
and some of the States, in their act ratifying the
Federal Constitution, plainly and unequivocally as
serted and reserved it." This he was taught at West
Point.1 The State of Alabama adopted an ordinance of
secession, January 11, 1861. By this act on the part
of that State, Judge Campbell was placed in a very
embarrassing position. He had, as we have seen, de-j
clared that while he advised strongly against it, and
regarded it as unwise and unjustifiable, he would, inj
obedience to his conviction in respect to his ultimate
allegiance, resign his position and return to the State.)
To understand correctly his course during these
days of trial, in which so many honorable, patriotic
men, both North and South, were in doubt as to
where their duty led, it is necessary to give, as nearly
as possible in his own words, a history of his acts
and the motives which controlled him. Fortunately
1 Gordon, A. C: Figures from American History, Jefferson
Davis, 17.

120 JOHN ARCHIBALD CAMPBELL
he made at the time and carefully preserved a record
of his own conduct and that of others with whom he
acted. In the negotiations relative to the evacuation of
Fort Sumter, Judge Campbell bore an important
part. His conduct in this matter gave rise to much
discussion and subjected him to misrepresentation
and criticism.
By reference to a few historic facts we are enabled
to understand his course better than could his con
temporaries. The seven South Atlantic and Gulf
States had passed ordinances of secession and their
delegates had assembled at Montgomery, Alabama,
formed a Southern Confederacy, and established a
Provisional Government. Fort Sumter and other
Southern forts were still garrisoned by Union
troops. General P. G. T. Beauregard, with a force of
Southern troops, had taken possession of Fort Moul
trie. For manifest reasons the Provisional Govern
ment strongly desired the evacuation of Fort Sum
ter. President Buchanan was severely criticized in
the North for his failure to reinforce its garrison.
The Montgomery Government sent commissioners
to Washington for the purpose of negotiating with
the President upon the subject of the evacuation of
Fort Sumter. Both parties were deeply concerned
respecting the course which the border States, Mary
land, Virginia, North Carolina, Tennessee, Ken
tucky, Missouri, and Arkansas, would pursue. Al
though the efforts at compromise of the slavery
question, which had been made during the winter of
1860 and 1861, had failed, thousands of patriotic

EFFORTS TO AVERT CIVIL WAR 121
men, devoted to the Union and praying for its pres
ervation, had not lost hope that some adjustment
would be made satisfactory to those border States.
The motive for securing a compromise was to hold
them in the Union.1 For this reason twenty-one
States accepted the invitation of Virginia to send
delegates to a Peace Congress, which assembled at
Washington, February 24, 1861. 2
The hope that a solution of the questions at issue
would be found was well supported by the result of
the elections held for delegates to conventions in the
border States during the spring of 1861. It was be
lieved that if the status quo could be maintained and
no act of coercion resorted to until the Union senti
ment in those States could be crystallized, they
would be saved to the Union and ultimately the
other Southern States would rescind their ordi
nances of secession and return to the Union. This
opinion was not confined to the Southern States.3
The elections showed that a large majority in the
Convention of Missouri were opposed to secession.
The Legislature of Kentucky refused to call a
convention. In Tennessee the majority of the popular vote
against calling a convention was more than 6700.
In North Carolina the people voted against call
ing a convention, and elected, if called, a majority of
Union men as delegates.
1 Rhodes, J. F. : History of the United Slates from the Compromise
of I860, i, 289.
2 Curtis : Life of James Buchanan, n, 439.
8 Bancroft, Frederic: Life of William H. Seward, Appendix. Let
ters from John A. Gilmer and others to Seward.

122 JOHN ARCHIBALD CAMPBELL
A majority of the delegates in the Virginia Con
vention were opposed to secession.1
It was also understood that Virginia and North
Carolina, upon an attempt to coerce the Southern
States, would immediately adopt ordinances of se
cession, and the sequel showed that this was true.
Such was the opinion of Judge Campbell, and be
cause of it, at the invitation of Judge Nelson, he un
dertook a mission of which he has preserved a com
plete record, the accuracy of which is sustamed by
abundant testimony coming from witnesses not open
to the suggestion of favor to him or to the Southern
people. The statement made and preserved by him,
entitled "Facts of History," puts the transaction, in
all of its aspects, so clearly that any abridgment of
it would mar its completeness. He writes :
"On the 15th of March, 1861, 1 casually met Mr.
Justice Nelson, of the Supreme Court of the United
States, on the Pennsylvania Avenue, Washington
City, returning from a visit to Mr. Secretary Seward
at his office. He informed me that he had a full
conversation with Mr. S. upon the laws relating to
navigation, commerce, and revenue and the im
pediments to the execution of those laws (without
additional legislation) in consequence of the ordi
nances of secession in the Cotton States. These im
pediments, in his opinion, would be insuperable,
except by the use of military force and danger of an
immediate civil war. He told me that Mr. S. expressed
his obligation for the conversation, and his satisfac-
1 Stephens: The War Between the States, n, 364-68; Munford,
B. B.: Virginia's Attitude Toward Slavery and Secession, 257.

EFFORTS TO AVERT CIVIL WAR 123
tion to find impediments to war — ' that his policy
was that of peace, and that he would spare no effort
to maintain peace.' Judge N. further informed me
that the Commissioners of the Confederate States
had written a letter requesting a reception and that
negotiations should be opened, which was a matter
of embarrassment to Mr. S.; that the Administra
tion was adverse to the reception of the Commis
sioners, and Mr. S. thought, if they returned home
with an answer of refusal, it would produce irrita
tion at the South, excitement and counter-irritation
at the North, to the jeopardy of counsels of peace.
"I returned with Judge Nelson to his hotel and
had a free conversation upon the matter last men
tioned. Our conclusion was that the country would
be better satisfied and the counsels of peace pro
moted by the reception of the Commissioners and
obtaining from them a full exposition of their de
mands and the reasons on which they were founded;
that this could be done, without any recognition of
them as officers of an organized government au
thorized to hold diplomatic relations, or any recog
nition of the Confederate Government itself as a
subsisting or valid representation of the seceding
States. We returned to Mr. Seward's office to en
force these views upon him.J Mr. Seward heard
what we said with courtesy and attention, and re
plied to it: That not a member of the Cabinet
would consent. 'Talk with Montgomery Blair and
Mr. Bates, with Mr. Lincoln himself, they are
Southern men, and see what they say,' said Mr. S.
No one of them would agree. 'No,' he proceeded,

124 JOHN ARCHIBALD CAMPBELL
'if Jefferson Davis had known of the state of things
here, he never would have sent those Commission
ers. It is enough to deal with one thing at a time.
The surrender of Sumter is enough to deal with.' He
took from his table a letter from Mr. Weed, whom
he described to be a statesman and a patriot, and
read to this effect: 'That the surrender of Sumter
was a bitter pill; that it would damage the party in
the elections; that he was sure he could have made a
better arrangement with the Commissioners; that
they would have been willing to allow Major Ander
son's force to remain in the fort, without molesta
tion, to purchase supplies in Charleston, and his
regret was for having left Washington before some
thing had been concluded.' I had not before this had
a hint of the proposed evacuation of Sumter, and re
plied to Mr. Seward that I fully agreed with him
that only one matter should be dealt with at a time
and that the evacuation of Sumter was a sufficient
burden upon the Administration; that too much
circumspection could not be employed to prevent
agitation or excitement of the public mind. I said
I would see the Commissioners on the subject and
also write to Mr. Davis. 'What shall I say on the
subject of Fort Sumter?' He said: 'You may say to
him that before that letter reaches him (How far is
it to Montgomery?)' 'Three days.' 'You may say to
him that before that letter reaches him the tele
graph will have informed him that Sumter will have
been evacuated.' 'What shall I say as to the forts in
the Gulf of Mexico?' He said: 'We contemplate no
action as to them; we are satisfied with the position

EFFORTS TO AVERT CIVIL WAR 125
of things there.' I agreed to see the Commissioners
on that day, and to obtain their consent to a delay
of their demand for an answer to their letter, and
would afford him an answer. Mr. S. said he must
have an answer that day, and if I were successful I
might prevent a civil war.
"I called upon Mr. Crawford, one of the Com
missioners, and informed him that I desired to
write a letter to Mr. Davisj,that I wished him to de
fer any call for an answer to his letter to Mr. Seward
asking a reception or recognition of his public char
acter until Mr. D.'s reply was received. He objected.
He said that the Commissioners had been sent to
obtain a recognition from the United States and a
peaceful settlement, and if they could not have
those that they would return to their people and
that their people might know what they had a right
to expect. I informed him of the contemplated ac
tion as to Sumter, of the probable continuance of
affairs in the Gulf without alteration, and what the
conditions might be of hasty or irritating action.
After some discussion he consented to my request,
provided I would assure him on the subject of Sum
ter, and he required my authority for my assertion,
informing me at the same time that he was satisfied
that it was Mr. Seward. I declined to give him any
name and told him that he was not authorized to
infer that I was acting under any agency; that I was
responsible to him for what I told him and that no
other person was. I informed him that Judge Nelson
was aware of all that I knew and would agree that I
was justified in saying to him what I did. I certified

126 JOHN ARCHIBALD CAMPBELL
in writing my confident belief that Sumter would be
evacuated in five days; that no alteration would be
made in the condition of affairs in the Gulf prejudi
cial to the Confederate States; and that a demand
for an answer to his letter to the Secretary would be
productive of evil. He preferred to write the letter to
Mr. Davis and consented to the requisite delay.
"I informed Mr. Seward of this the same day by
letter and of the communication I had made. At the
end of five days Mr. Crawford called upon me to
know why Sumter had not been evacuated. I re
quested him to inquire of General Beauregard the
condition of affairs at the fort. General B. replied
that no indication of an evacuation of the fort had
appeared, but, on the contrary, that Major Ander
son was at work on the fortifications. I requested
Judge Nelson, who was still in Washington, to ac
company me to Mr. Seward's office. We found Mr.
Seward much occupied, and he could only reply to
our question that everything was right, and that he
would certainly see us the following day. On the fol
lowing day we had a free conversation with Mr. S.
He spoke of the prospect of maintaining the peace of
the country as cheering. Spoke of coercion proposi
tions in the Senate with some acerbity, and said, in
reference to the evacuation of Sumter, that the reso
lution had been passed and its execution committed
to the President; that he did not know why it had
not been executed; that Mr. L. was 'not a man who
regarded the same things important that you or I
would, and if he did happen to consider a thing im
portant, it would not for that reason be more likely

EFFORTS TO AVERT CIVIL WAR 127
to command his attention'; that there was nothing
in the delay that affected the integrity of the prom
ise or denoted any intention not to comply. I asked
him of the intention as to Pickens. He said the sta
tus of Pickens would not be altered. 'You shall
know,' he said, 'whenever any contrary purpose is
determined on.' I communicated to Commissioner
Crawford in writing what was the result of my in
quiry, and informed Mr. Seward what I had written.
"My next visit to Mr. Seward was on the 30th
of March. On that day Commissioner Crawford
brought me a telegram from Governor Pickens of
South Carolina, complaining that Colonel Lamon
had been permitted to visit Fort Sumter, and that,
after doing so, he had promised to return to Charles
ton in a few days, for the purpose of arranging for its
surrender, but that nothing had since been heard
from him. Mr. Seward received the telegram and
promised to answer me on Monday (April 1st). On
the first of April he stated that the President was
concerned at the contents of the telegram I had left
with him. There was a point of honor involved; that
Colonel Lamon did not go to Charleston under any
commission or authority from Mr. Lincoln, nor had
he any power to pledge him by any promise or as
surance; that Mr. Lincoln desired that Governor
Pickens should be satisfied of this, and Colonel La
mon was in an adjoining room, and that he would
answer any question I would ask him concerning
the matter. I declined to see Colonel Lamon, but I
inquired of Mr. Seward what I should report upon
the subject of the evacuation of Sumter. Mr. Seward

128 JOHN ARCHIBALD CAMPBELL
wrote and handed me a writing to the effect 'that
the President may desire to supply Fort Sumter, but
will not undertake to do so without first giving
notice to Governor Pickens.' I asked Mr. Seward,
'What does this mean? Does the President design to
attempt to supply Sumter?' He answered: 'No, I
think not; it is a very irksome thing to him to evacu
ate it. His ears are open to every one, and they fill
his head with schemes for its supply. I do not think
that he will adopt any of them. There is no design to
reinforce it.' I then said: 'If there be no formed de
sign to attempt to supply or to reinforce the fort, he
should not express a desire to do so. The evacuation
is not considered to be an open question in Charles
ton, and in their State they would regard the expres
sion of a desire by the President to supply the fort as
evidence of an intention to supply and reinforce it;
that this would probably lead to a bombardment;
that it was difficult to restrain the people as it was.'
Mr. Seward said he must be particular in his inter
course with me, and that he would go to see the
President. He left me in his office and was absent
some minutes. When he returned, he wrote for the
answer to Governor Pickens: 'I am satisfied the
Government will not undertake to supply Fort Sum
ter without giving notice to Governor Pickens.' It
was understood between us that the import of the
conversations previously had, was not affected by
what had taken place.
"During the first week in April it became appar
ent to persons in Washington City that some im
portant decision in regard to the questions relative

EFFORTS TO AVERT CIVIL WAR 129
to the seceding States had taken place. The troops
which had been collected there were removed; ru
mors among naval officers of movements of vessels
of war were current. There had been an unusual con
course of politicians there, and the tone of one party
became more menacing and of the other more anx
ious and despondent. I recollect to have heard that
an expedition for the relief of Sumter had been re
solved on, and also threatening speeches of Presi
dent Lincoln were quoted. Mr. Crawford applied to
me for a fulfillment of the pledge for the evacuation
of Sumter or for explanations.
"On the 7th of April I addressed Mr. Seward a
letter, reciting what had taken place, the anxiety
of the Commissioners, and asked explanation. I ex
pressed to him an apprehension that a collision
might arise, and suggested a remedy. My com
munication referred to the condition both of Sumter
and Pickens. His reply: 'Faithfully kept as to Sum
ter, wait and see; other suggestions received and
will be respectfully considered.' There was no signa
ture to this note, date, etc. The address was merely
on the envelope that enclosed the loose piece of
paper on which it was written.
"The Commissioners concluded from this that
the expedition fitted out in New York was for Pick
ens, inasmuch as the note was not replied to in refer
ence to Pickens; and that would be an attempt to
supply, but not reinforce, Sumter. They concluded
to call for an answer to their letter demanding audi
ence, etc. A reply written on the 15th of March was
handed to them. They subsequently exhibited to

130 JOHN ARCHIBALD CAMPBELL
me a fierce attack upon Mr. Seward, which they
proposed to publish or to send to Montgomery. I
objected to their use of Mr. Seward's name. I stated
to Mr. Crawford that I had assumed all the respon
sibility of the intercourse, and had not appeared as
the agent for Mr. Seward or to speak at his request,
and that I had expressly stated to Mr. Crawford
that he was not to infer that I derived information
from Mr. S. or any other person in particular. He
acquiesced in the accuracy of my statement and ex
punged the objectionable paragraph. The Commis
sioners left Washington City during the week, and
one of them on his return home misrepresented my
relation to this negotiation and endeavored to swell
the popular outcry that then existed in the Southern
country against me.
"On Thursday, the 11th of April, I was informed
that Mr. Lincoln had said that none of the vessels of
war that had gone to sea were designated for Sum
ter; that the expedition to Charleston was designed
merely to ascertain whether the South Carolinians
would interfere with vessels of the United States
employed to relieve famishing soldiers of the United
States in one of their own forts. On the same day in
formation was given to me that General Beauregard
had summoned Major Anderson to surrender Fort
Sumter as a preliminary to reducing it, in the event
of a refusal. This information came through a tele
gram of General B. to the Commissioners, which
their secretary exhibited to Mr. Douglas, who had
recommended that it be brought to me. I called at
Mr. Seward's office and dwelling the same day, but

EFFORTS TO AVERT CIVIL WAR 131
found him absent. I informed Mr. Frederick Seward
of the reported remark of Mr. Lincoln and the dan
ger impending for Fort Sumter, and proposed that I
be permitted to communicate to Governor Pickens
the matter contained in Mr. Lincoln's statement,
expressing the opinion that it would prevent the
bombardment. Mr. F. Seward promised to see his
father and repeat his answer the same evening to me,
but I did not hear from him on the subject. The
bombardment of Sumter was commenced the next
day and the result was published in Washington
City Sunday morning. Before this was known, I ad
dressed a respectful letter to Mr. Seward requesting
some explanation of the circumstances which had
produced this great calamity. There seemed to be
testimony to show that his assurances to me had
been continued after the decision to evacuate Sum
ter (if it ever existed) had been abandoned. To this
letter I had no reply.
"The preceding narrative will explain the cause
and conditions under which my communications
with Mr. Seward and the Commissioners took place.
My interposition was voluntary, and my object was
to prevent a collision between the seceding States
and the United States. My hope was to secure peace
and to prevent a civil war. I believed that, in pre
venting war, a settlement would be made that would
satisfy the sober, considerate, and conservative peo
ple in all the States, and that no settlement could be
made otherwise. I informed Commissioner Crawford
that I did not look beyond the securing of peace;
that if peace brought defeat to secession, I accepted

132 JOHN ARCHIBALD CAMPBELL
that result cheerfully. I desired that the people
should have an opportunity to render a calm, intelli
gent, and undisturbed judgment upon the questions
at issue. I had a firm belief in the wisdom of the solu
tion that would be made. I opposed the secession of
Alabama openly and publicly. I had no respect for
the conceit of a cotton State confederacy, and so de
clared myself. I condemned in strong terms all that
resembled a conspiracy against the union of the
States, and took no part whatever in any of the
measures that tended to secession or disunion. I had
no correspondence with the Montgomery Govern
ment, and there was not then, nor has there been at
any time since, any great cordiality between the
leading members of that Government and myself."
Copies of notes from William H. Seward, Secretary of
State, in April, 1861, without date, filed with
Judge Campbell's "statement"
1. "I am satisfied the Government will not under
take to supply Sumter without giving notice to
Governor P." (No signature.)
No. 2. "Confidential.
"Faith as to Sumter fully kept. Wait and see.
Other suggestions received with views (?) thanks
and high respect."
Envelope endorsed:
"The Honorable J. A. Campbell
"Justice of Supreme Court
"Washington, D.C."
If it is suggested that this is an ex parte, "self-
serving" statement, the answer is found in the fact

EFFORTS TO AVERT CIVIL WAR 133
that, on April 13, 1861, Campbell addressed the fol
lowing letter to Seward, a copy of which he made
and preserved: Washington City, April 13, 1861
Sir: On the 15th March ult. I left with Judge Craw
ford, one of the Commissioners of the Confederate
States, a note in writing to the effect following:
"I feel entire confidence that Fort Sumter will be
evacuated in the next five days and this measure is
felt as imposing great responsibility on the Admin
istration. "I feel entire confidence that no measure chang
ing the existing status prejudicially to the Southern
Confederate States is at present contemplated.
"I feel entire confidence that an immediate de
mand for an answer to the communication of the
Commissioners will be productive of evil and not of
good. I do not believe that it is right at this time to
be pressed."
The substance of this statement I communicated
to you the same evening by letter.
Five days elapsed and I called with a telegram
from General Beauregard to the effect that Sumter
was not evacuated, but that Major Anderson was at
work making repairs.
The next day, after conversing with you, I com
municated to Judge Crawford, in writing, that the
failure to evacuate Sumter was hot the result of bad
faith, but was attributable to causes consistent with
the intention to fulfill the engagement, and that, as
regards Pickens, I should have notice of any design

134 JOHN ARCHIBALD CAMPBELL
to alter the existing status there. Mr. Justice Nelson
was present at these conversations, three in number,
and I submitted to him each of my written com
munications to Judge Crawford and informed Judge
C. that they had his (Judge Nelson's) sanction. I
gave you on the 22d March a substantial copy of the
statement I have made on the 15th.
The 20th March arrived, and, at that time, a tele
gram came from Governor Pickens inquiring con
cerning Colonel Lamon.
I left that with you and was to have an answer the
following Monday (1st April).
On the first of April I received from you the state
ment in writing: "(I am satisfied) the Government
will not undertake to supply Sumter without giving
notice to Governor P." The words "I am satisfied"
were for me to use as expressive of confidence in the
remainder of the declaration. The proposition, as
originally prepared was, "The President may desire
to supply Sumter, but will not do so," etc., etc., and
your verbal explanation was that you will not be
lieve any such attempt would be made, and that
there was no design to reinforce Sumter.
There was a departure here from the pledges of
the previous month, but, with the verbal explana
tions, I did not consider it a matter then to com
plain of. I simply stated to you that I had that as
surance previously.
On the 7th of April I addressed you a letter on the
subject of the alarm that the preparations by the
Government had created and asked you if the as
surances I have given were well or ill founded.

EFFORTS TO AVERT CIVIL WAR 135
In respect to Sumter, your reply was, "Faith as to
Sumter fully kept. Wait and see."
In the morning's paper I read, "An authorized
messenger fromPresident Lincoln informed Governor
Pickens and General Beauregard that provisions
will be sent to Fort Sumter peaceably or otherwise
by force." This was the 8th of April at Charleston,
the day following your last assurance, and is the
evidence of the full faith I was invited to wait for
and see.
In the same paper I read that intercepted dis
patches disclose the feat that Mr. Fox, who had
been allowed to visit Major Anderson on the pledge
that his purpose was pacific, employed his oppor
tunity to devise a plan for supplying the fort by
force, and that this plan had been adopted by the
Washington Government, and was in process of exe
cution. My recollection of the date of Mr. Fox's visit car
ries it to a day in March. I learn that he is a near
connection of a member of the Cabinet. My connec
tion with the Commissioners and yourself was su
perinduced by a conversation with Justice Nelson.
He informed me of your strong disposition in favor
of peace and that you were oppressed with a demand
of the Commissioners of the Confederate States for a
reply to their first letter, and that you desired to
avoid it, if possible, at that time. I told him I might
perhaps be of some service in arranging the diffi
culty. I came to your office entirely at his request
and without the knowledge of either of the Com
missioners. Your depression was obvious to both

136 JOHN ARCHIBALD CAMPBELL
Judge N. and myself. I was gratified at the charac
ter of the counsels you were desirous of pursuing,
and much impressed with your observation that a
civil war might be prevented by the success of my
mediation. You read a letter of Mr. Weed to show
how irksome and responsible the withdrawal of the
troops from Sumter was — a portion of my com
munication to Judge Crawford, on the 15th of
March, was founded upon one of these remarks, and
the pledge to evacuate Sumter is less forcible than
the words you employed. Those words were, "Be
fore this letter reaches you" (a proposed letter by
me to President Davis) "Sumter will have been
evacuated." The Commissioners who received those
communications conclude that they have been
abused and overreached. The Montgomery Govern
ment hold the same opinion. The Commissioners
have supposed that my communications were with
you, and, upon this hypothesis, propose to arraign
you before the country in connection with the Presi
dent. I placed a peremptory prohibition upon this as
being contrary to the terms of my communication
with them. I pledged myself to them to communi
cate information upon what I considered as the best
authority, and they were to confide in the ability of
myself, aided by Judge Nelson, to determine upon
the credibility of my informant. I think no candid
man who will read what I have written and consider
for a moment what is going on at Sumter but will
agree that the equivocating conduct of the Adminis
tration, as measured and interpreted in connection
with these promises, is the proximate cause of the

EFFORTS TO AVERT CIVIL WAR 137
great calamity. I have a profound conviction that
the telegrams of the 8th of April of General Beaure
gard and of the 10th of April of General Walker, the
Secretary of War, can be referred to nothing else
than their belief that there had been systematic
duplicity practiced on them through me. It is under
an oppressive sense of the weight of this responsibil
ity that I submit to you these things for your ex
planation. Very respectfully John A. Campbell !
Hon. Wm. H. Sewaed
Secretary of State
Receiving no answer to his request, on April 20,
1861, Campbell addressed the following letter to
Seward, to which no reply was sent :
Washington City, April 20, 1861
Sir: I enclose you a letter corresponding very nearly
with one I addressed you one week ago (April 13th)
to which I have not any reply. The letter is simply
one of inquiry in reference to facts concerning which
I think I am entitled to an explanation. I have not
adopted any opinion in reference to them which may
not be modified by explanation. Nor have I affirmed,
nor do I in this, any conclusion of my own, unfavor
ably to your integrity in the whole transaction. All
that I have said and mean to say is, that an explana
tion is due from you to myself. I will not say what I
shall do in case this request is not complied with, but
I am justified in saying that I shall feel at liberty to

138 JOHN ARCHIBALD CAMPBELL
place these letters before any person who is entitled
to ask an explanation of them.
Very respectfully
John A. Campbell, Associate Justice
Supreme Court of the United States
Hon. Wm. H. Sewabd
Secretary of State
Judge Campbell, in his statement written at Fort
Pulaski, filed with the War Department, and re
ferred to the Attorney-General, July 10, 1865, gave
the Administration an opportunity to deny the
truth of the "Facts of History" and make an inves
tigation of his conduct and motives between March
15 and April 13, 1861. Mr. Seward was at that time
Secretary of State. In that statement Campbell says:
rl was opposed to the Act of Secession of the State
/of Alabama. That opposition was open, public, and
j declared. The cause for secession was regarded by
| me as inadequate. My opinions were well known and
had the effect to arouse against me hostility and
proscription. I was unwearied in the winter of 1861
in efforts to produce a settlement. Through the
Honorable Montgomery Blair, I opened a com
munication with President Lincoln and offered to be
the medium of a communication to the people of
Alabama. I was consulted by Mr. Crittenden upon
his resolutions. I attempted to procure commission
ers to be sent to the States to engage them to post
pone action; Mr. Buchanan at one time consented
to do this. I aided in the consultation of members
of the Peace Congress. I endeavored to avert the

EFFORTS TO AVERT CIVIL WAR 139
calamity of war by preventing military collision. I
was a Union man and believed that a few months
of peace would save the Union. I have this opinion
still. I did not resign to 'aid the Rebellion.' In No
vember, 1860, before the secession of my State, I
received a letter from Daniel Chandler, Esq., of
Mobile, Alabama, my former partner and brother-
in-law, requesting my opinion upon the proposed
secession of Alabama. My answer was very full and
explicit in condemnation of the measure, and for
reasons that were set forth at large. In that letter I
stated to him that if the State should secede I would
resign my position in the Supreme Court. This letter
was not written for publication, and consent to its
publication being asked for was withheld, but it was,
notwithstanding, published in December, 1860. My
belief was firm that the measure of secession would
produce war, unless there was a sobriety, modera
tion, unanimity, and disposition for conciliation and
forbearance, which the circumstances then existing
forbade me to hope or expect. My relations, friends,
and former associates were generally secessionists. I
supposed that questions would arise, such as have
arisen, that would impose a heavy weight of respon
sibility upon the Judiciary Department and excite
all the passions and powers of the country. I felt
that it would be impossible for a person of my rela
tions to obtain the confidence or respect of either
section of the country in that position. I supposed
that the war would be long, disastrous, and desolat
ing. At this early date, I made up my mind on the
subject. My friends spoke of it and wrote of it to me.

140 JOHN ARCHIBALD CAMPBELL
Chief Justice Taney, in my last interview with him,
'acquiesced' in the propriety of the step. Mr. Jus
tice Nelson regretted it, but thought that it was
natural and proper. I have never understood that
my brethren impugned the integrity of my motives.
I communicated to Mr. Attorney-General Bates
in April, 1861, the necessity of my condition, but
pledged myself to him to aid in reestabfishing the
Union, if peace could be maintained."
Judge Campbell's statement in regard to his ef
forts to prevent secession and avert war are sus
tained by Jeremiah S. Black, of whom it has been
truly said that he "reverenced the Constitution,
and had a respect for law worthy of a Roman states
man of noblest type. . . . [He was] a man who hated
shams and meanness of all sorts, [and was of] abso
lute and unquestioned purity." x
Judge Black says: "When the troubles were at
their worst, certain Southern gentlemen, through
Judge Campbell of the Supreme Court, requested
me to meet Mr. Seward and see if he would not give
them some ground on which they could stand with
safety, inside the Union. I consented and we met at
the State Department. The conference was long and
earnest." 2
That there was no concealment of his conduct by
Judge Campbell is shown by a letter from Edwin M.
Stanton to James Buchanan, May 19, 1861, in
which he writes: "You will see in the New York
papers Judge Campbell's report on the negotiations
1 Rhodes: History of the United States, m, 243.
3 Black: Speeches and Essays, 156.

EFFORTS TO AVERT CIVIL WAR 141
between himself and Mr. Seward, to which I re
ferred in my letter of last week. They had been re
lated to me by the Judge about the time they closed.
Mr. Seward's silence will not relieve him from the
imputation of deceit and double-dealing in the
minds of many, although I cannot believe that it can
be justly imputed to him. I have no doubt that he
believed Fort Sumter would be evacuated as he
stated that it would be. But the war party over
ruled him with Lincoln, but he could not give up his
office. That is a sacrifice no Republican will be apt to
make. But this correspondence shows that Mr.
Frederick Seward was not in the line of truth when
he said that negotiations ceased on the 4th of March.
The 'New York Evening Post' is very severe on
Judge Campbell, and very unjustly so, for the Judge
has been as anxiously and patriotically earnest to
preserve the Government as any man in the United
States and he has sacrificed more than any other
Southern man, rather than yield to the secessionists.
I regret the treatment he has received from Mr.
Seward and the 'Post.'" x
Stanton had, on May 16, 1861, written to Bu
chanan: "The fling of Mr. F. W. Seward about 'ne
gotiations' would merit a retort if there were an
independent press, and the state of the times ad
mitted discussion of such matters. The negotiations
carried on by Mr. Seward with the Confederate
Commissioners through Judge Campbell and Judge
Nelson will, some day, be brought to light, and if
1 Curtis: Life of James Buchanan, ii, 549; New York Evening
Post, May 17, 1861.

142 JOHN ARCHIBALD CAMPBELL
they are as represented to me, Mr. Seward and the
Lincoln Administration will not be in a position to
make sneering observations respecting any negotia
tion during your administration." 1
Mr. Rhodes, after careful examination of the
"Seward-Campbell Negotiation," refers to Judge
Campbell as one "whose sincerity and straightfor
wardness cannot be questioned." 2
General Samuel W. Crawford, who examined the
letters and documents in the possession of Judge
Campbell relating to the negotiation, writes: "Thus
ended the voluntary interposition of an official of
high position, and whose sole object was to prevent
a collision which would have inaugurated war be
tween the States. Like many of his countrymen he
believed that, in the preservation of peace, a settle
ment would be ultimately reached that would satisfy
the best and most patriotic minds and to this end he
devoted his best energies. He opposed the secession
of his State and condemned all that resembled a
conspiracy against the union of the States." 3
At probably more than usual length and with
wearying detail, the history of this incident in Judge
Campbell's life is given, not for the purpose of in
viting or entering into the controversy in which it
was charged that Lincoln and Seward were guilty
of "equivocation and insincerity with Judge Camp
bell," or of suggesting that by their conduct they
"inaugurated the civil war," but that the "facts of
1 New York Evening Post, May 17, 1861.
* Rhodes: History of the United Slates, in, 338.
» Crawford, S. W.: Genesis of the Civil War, 341.

EFFORTS TO AVERT CIVIL WAR 143
history" may be made known and Judge Campbell's
course understood. There was ample room for the
conclusion drawn by Judge Campbell that he had
not been dealt with fairly and frankly, and this
appears to have been Mr. Stanton's opinion. When
attacked by Northern papers, he was entitled to a
frank statement from Seward. Probably Mr. Rhodes
has reached an approximately correct conclusion.
Referring to the charge made by Judge Campbell,
Jefferson Davis, and Alexander H. Stephens, that
"the equivocating conduct of the Administration"
was the "proximate cause" of the commencement
of the war in Charleston Harbor, he says: "If, as
these gentlemen more or less distinctly assume, the
President consented to this negotiation and knew of
the assurances which Seward gave, his course cannot
successfully be defended. Nicolay and Hay do not
tell us in set terms how far he was privy to the quasi-
promises of his secretary, but from their narrative it
is a reasonable inference that he knew little or noth
ing about them. Secretary Welles, writing in 1873,
says emphatically that the President did not know
of Seward's assurance that Fort Sumter would be
evacuated, and never gave it his sanction. Consider
ing Lincoln's character and manner of action, noth
ing but the most positive evidence should convince
us that he was in any way a party to this negotia
tion, and of this there is none. . . . Justice Camp
bell, believing that Seward was the President in
fact, and trusting him implicitly, was the only suf
ferer on the part of the South." x Mr. Schouler is of
1 Rhodes: History of the United States, in, 338, 340.

144 JOHN ARCHIBALD CAMPBELL
the opinion -that Seward communicated to Lincoln
his conversations with Campbell and Nelson.1
It is ungracious to differ with Mr. Rhodes; one
cannot quarrel with a man so anxious to do justice
to all men whether in agreement with them or not,
but it is difficult to adopt his conclusion that Mr.
Seward was the only diplomat in the Administration
in those days. The letters written by Stanton, Holt,
and General Dix to Buchanan, during the months of
March and April, 1861, tend to sustain the conclu
sion that the evacuation of Fort Sumter was "com
mon talk," and are interesting in the light of Stan
ton's subsequent career.2 Without any disposition
to draw into question Mr. Lincoln's conduct or
motives, there is evidence from a very respectable
source that, at the time Mr. Seward was having con
versations with Judge Campbell and Judge Nelson
regarding the evacuation of Fort Sumter, the Presi
dent was also having negotiations with Union men
from the South. John Hay recorded in his diary,
October 22, 1861, a conversation with Mr. Lincoln,
in which the latter said that "he promised a com
mittee of Southern pseudo-Unionists, coming to him
before inauguration, to evacuate Sumter if they
would break up their Convention without any row
or nonsense. They demurred. Subsequently, he re
newed the proposition to Summers, but without re
sult. The President was most anxious to prevent
bloodshed." Horace White says: "There is reason to
believe that Seward had previously prevailed upon
1 Schouler, James: History of the United States, vi, 31, note.
2 Curtis: Life of James Buchanan, n, chap, xxvii.

EFFORTS TO AVERT CIVIL WAR 145
the President to agree to surrender Fort Sumter as
a means of preventing the secession of Virginia." x
Mr. White suggests that "probably the entry in
Hay's diary had been forgotten when the history
was written twenty-five years after." 2
In his "Political History of Secession to the Be
ginning of Civil War" (page 586) Mr. Daniel Wait
Howe ascribes to Judge Campbell a letter of March
6, 1861, written to Robert Toombs, the language of
which he quotes. It is impossible to reconcile the
authorship of this letter with Judge Campbell's
"Facts of History." Mr. Howe's attention being
called to the evident mistake promptly wrote that
upon investigation he found that "the author of
that letter was Martin J. Crawford, one of the Con
federate Commissioners, and not Justice Campbell " ;
that he regretted the mistake "because it does in
justice to the memory of Justice Campbell." He at
tributes the mistake to an error made in "copying
extracts from books and documents." The letter, as
quoted by Mr. Howe, is printed in Frederic Ban
croft's "Life of William H. Seward" (vol. n, page
118), and correctly states that it was written by
Crawford to Toombs March 6, 1861, nine days be
fore Judge Campbell met Judge Nelson and, with
him, called upon Mr. Seward.3
1 White, Horace: Life of Lyman Trumbull, 150. ' Ibid., 162.
5 This correction is made at the request and by authority of Mr.
Howe. The "mistake" resulted in an interesting correspondence
and "a presentation copy" of Mr. Howe's very interesting and in
forming book. While, as suggested by him, in some aspects our
point of view differs, the spirit shown by Mr. Howe is that of a fair-
minded, conscientious, and careful student and writer. It gives me
pleasure to make this acknowledgment.

146 JOHN ARCHIBALD CAMPBELL
John Minor Botts gives an account of a conversa
tion on this subject which, he says, he had with Mr.
Lincoln on Sunday, April 7, 1861. He states that on
April 5, 1861, Mr. Lincoln had said to John B. Bald
win, a member of the Virginia Convention, then in
session, if the Convention would adjourn without
passing any ordinance of secession, he would tele
graph to New York, "Arrest the sailing of the
fleet," and take the responsibility of evacuating
Fort Sumter. In 1866 Baldwin testified before the
Reconstruction Committee that he had an inter
view with the President, at the date mentioned,
but denied that Lincoln offered to evacuate Fort
Sumter if the Virginia Convention would adjourn
sine die.
It is worthy of note that on April 7, the day on
which Botts says he had the conversation with
Lincoln, Seward wrote Judge Campbell the note
assuring him that faith was kept as to Sumter. In
consequence of Baldwin's testimony before the
Committee on Reconstruction in regard to this in
cident, Botts gathered the evidence to sustain his
statement. 1
An interesting side-light is thrown on this inci
dent, about which so many contradictory state
ments have been published and such strenuous
efforts made to misrepresent Judge Campbell, by
reference to a paper entitled "Rudolph Schleiden
and the Visit to Richmond, April 25, 1861," read by
Professor Ralph H. Lutz before the Pacific Coast
1 Botts, J. M.: The Great Rebellion, 194; Report on Reconstruc
tion, 1866.

EFFORTS TO AVERT CIVIL WAR 147
Branch of the American Historical Association, No
vember 27, 1915. Schleiden was, during the spring of
1861, German Minister Resident at Washington. In
confidential dispatches to the Committee of Foreign
Affairs of Bremen, he reported that Lincoln had said
to the Peace Commissioners in Virginia, when asked
to remove the troops from Fort Sumter, "Why not?
If you will guarantee to me the State of Virginia,
I will remove the troops. A State for a Fort is
not bad business." This entire article affords in
teresting light on the situation, both in Washing
ton and in Richmond, during the month of April,
1861.1 That Judge Campbell had the same object in view
as had Lincoln and Seward, to prevent bloodshed
and avert civil war, is manifest. It is difficult to see
why his conduct should not be ascribed to the same
motive and judged by the same standard. To do so
relieves him of much of the criticism indulged in by
Nicolay and Hay in their "History." The incident
affords an illustration of the wisdom and justice of
Gladstone's rule of life, that "It is always best to
take the charitable view, especially in politics," or
to accept Cobden's experience which led him to say,
"The older I get the more do I believe in men's sin
cerity." To have dealt with Judge Campbell in this spirit
would have been justice to him, without in any
1 American Historical Association Journal, 1915, p. 209. Thomas
L. Clingman, Senator from North Carolina (1861), tells of an inter
esting conversation (1866) with a member of Lincoln's Cabinet re
garding the attitude of the Administration as to the evacuation of
Fort Sumter. (Speeches and Writings, 564.)

148 JOHN ARCHIBALD CAMPBELL
degree lowering the estimate in which the authors
wish their readers to hold their hero. Lincoln's place
in the estimation of men does not need that those
with whom he was associated and from whom he
differed should be judged harshly and unjustly.

CHAPTER VI
SERVICES TO THE CONFEDERACY AND PEACE
NEGOTIATIONS
Failing in his efforts to stay secession and avert
civil war, and feeling that he had been placed in a
false position by what he regarded as Seward's de
ception, Judge Campbell tendered his resignation to
the President. Explaining his reasons for not resign
ing immediately upon the secession of Alabama, he
wrote H. Ballentine, of Mobile, May 22, 1861 : "Af
ter the adjournment of the term of the Court there
was judicial business of importance, but of subordi
nate importance, to be disposed of; there were ob
jections to my resignation, on principle, from the
members of the Supreme Court and from men whose
character and counsel merited respect and deference
— statesmen from Virginia, Kentucky, Maryland,
Tennessee, and North Carolina. And there was every
reason to suppose that my holding the office might
enable me to contribute something toward securing
the great blessing of peace and averting from the
country the direst of evils — civil war."
On April 29, 1861, he addressed the following let
ter to Chief Justice Taney:
My dear Sir:
Some days ago I sent through the mail to the
President a notice of my resignation of the office
of Associate Justice of the Supreme Court of the

150 JOHN ARCHIBALD CAMPBELL
United States. In taking leave of the Court, I should
do injustice to my own feelings if I were not to ex-
1 press to you the profound impression that your emi
nent qualities as a magistrate and jurist have made
upon me. I shall never forget the uprightness, fidel
ity, learning, thought, and labor that have been
brought by you to the consideration of the judg
ments of the Court, or the urbanity, gentleness,
kindness, and tolerance that have distinguished
your intercourse with the members of the Court and
Bar. From your hands I have received all that I
could have desired and, in leaving the Court, I carry
with me feelings of mingled reverence, affection, and
gratitude. In the prayer that the remainder of your days may
be happy and their end peace,
Your friend
John A. Campbell
Mr. Ch. Justice Taney
The "National Intelligencer" thus refers to
Judge Campbell's resignation: "We regret to an
nounce to our readers that the Honorable John A.
Campbell has resigned his appointment as Associate
Justice on the Bench of the Supreme Court of the
United States. That tribunal loses in him a learned
jurist and a faithful Judge, who, during the entire
period of his official service, has illustrated the quali
ties which most adorn the exalted position he was
called to fill, and who, in his retirement, will carry
with him the admiration of his countrymen and, not
least, that of those who may regret the sense of duty

SERVICES TO THE CONFEDERACY 151
prescribed to himself in tendering his resignation
because, as is supposed, of pending political compli
cations." Mr. Carson says of Judge Campbell's resignation:
"This great Judge was commissioned upon the 22d
day of March, 1853. In less than eight years he had
resigned. It will never cease to be a matter of pro
fessional regret that two such Judges as Campbell
and Curtis, having once attained such exalted posi
tions, and having displayed such surpassing judicial
powers, should have felt themselves called on to re
tire from membership in a tribunal which they had
greatly strengthened and adorned. ... It takes time
to create a great judicial reputation and the fruits
of judicial wisdom ripen slowly. Had Marshall or
Taney been stricken down in the midst of their
career, they would, as Chief Justices, be as little
known to the country as Ellsworth and Chase. Or
had Washington and Story resigned in middle life,
their names would be as little remembered as those
of Barbour and Woodbury." J
The secession of the Southern States brought
radical changes in the lives and careers of many
Southern men, some withdrawing from seats in the
National Congress; others, impelled by a sense of
duty to their political allegiance, resigning positions
in the Army and Navy, renouncing well-founded
prospects of promotion and lifelong service, or hon
orable retirement with an assured source of support
for themselves and their families. None was calledi
upon to make a greater sacrifice, and few one sol
1 Carson, H. L. : History of the Supreme Court, 350.

152 JOHN ARCHIBALD CAMPBELL
great, as Judge Campbell. He held, by a life tenure,
one of the most honorable public positions in the
service of the Government, the duties of which
called into daily exercise those mental and moral
qualities which, for more than thirty years, he had
cultivated by study and practice, with constantly
enlarging opportunity and capacity for usefulness;
associations in all respects congenial, with prospect
of promotion in the membership of the Court. All of
these he renounced and returned to private life un
der conditions most painful and embarrassing. Dif
ferent from those who looked forward to taking
part in the establishment of a new Republic with,
as they thought, a successful career in the family of
nations, he was strongly attached to the Union and
regarded dissolution as unwise and without justifi
cation. Upon his resignation he returned to Mobile,
where he found that a very strong feeling of hostility
to him prevailed among the secession leaders by rea
son of his publicly avowed opposition to their coun
sel and the course pursued by them. After settling
his private business in Mobile, he formed a part
nership for the practice of his profession in New
Orleans. The questions occur, Why, with his opmion in re-
: gard to the secession of Alabama and the organ
ization of a Southern Confederacy, did he resign
and return and give his adherence and support to
the Confederacy? Was he, in pursuing this course,
loyal to his allegiance and his duty to the coun
try? These questions are pertinent and call for an
answer. Whether he correctly construed the Con-

SERVICES TO THE CONFEDERACY 153
stitution, in holding to the opinion that the State of
Alabama, and those other States which pursued the
same course, exercised a reserved political right and,
by the ordinance of secession, separated themselves
from the Union and became independent sovereign
States, is a question in regard to which patriotic,
loyal men had, at all times, honestly differed. Those
Southern men who believed that secession was not
only the right, biit in the condition by which they
were confronted the duty, of the Southern States
found no difficulty in giving their active support
to the Southern Confederacy. The question which
Southern men of Judge Campbell's school of thought
and political faith and views as to the wisdom of se
cession were called upon to answer, was open to de
bate. In fixing the place of these men in the estima
tion of the present and future generations, it may be
appropriately asked, Why, if they thought no valid
or sufficient cause existed justifying secession, did
they acquiesce in the action of the States and con
tinue to give their allegiance to them after they had
adopted ordinances of secession? It may be frankly
conceded that, in those days of uncertainty and
doubt, there was an absence of uniformity and con
sistency in the course pursued by men of undoubted
patriotism and moral and political integrity. Many
men in the North, who denied the right of a State to
secede from the Union, insisted that there was no
power in the National Government to use forcible
means to prevent it from doing so. Others, without
undertaking to decide the question of the right to
secede, held that for the United States to hold a

154 JOHN ARCHIBALD CAMPBELL
State to its allegiance by coercion would be nothing
short of subjugation and destructive of the purpose
for which the Union was formed. So, in the South,
many denied the right of secession, but found justifi
cation in the exercise of the right existing in all po
litical communities to make a revolution and sever
their political relations. This doctrine they found
taught, and this right successfully asserted, by the
colonists of 1776 from whom they were descended.
Judge Campbell, with many others, probably a
'majority of Southern men, held to the opinion that
there existed in each American State the reserved,
inalienable right to sever its relation to the United
States whenever its safety and welfare demanded,
and of this the people of each State were the final
judges. As we have seen, this opmion, formed upon
long and diligent study of the Constitution and his
tory of the country, he had held and publicly ex
pressed long before the occasion for its exercise
arose. He logically concluded that when the State
of Alabama exercised this right, as one of her citizens
he owed allegiance to her and, as he expressed it,
must follow the fortunes of her people. The basic
principle upon which this conclusion depended was
that he was a citizen of the State and that his ulti
mate allegiance was due to her.
In his argument before the Supreme Court in the
Slaughter-House Cases, after the restoration of the
Union and the adoption of the Fourteenth Amend
ment, he expressed his views, saying: "It had been
maintained from the origin of the Constitution, by
men in every part of the United States and of the

SERVICES TO THE CONFEDERACY 155
highest order of ability, and who exerted great influ
ence, that the State was the highest political organi-\
zation in the United States, and through the consent
of the separate States the Union had been formed
for limited purposes, and that there was no social
union except by and through the consent of the
separate States, and that in extreme cases the sev
eral States might cancel the obligations to the
Union and reclaim the allegiance and fidelity of its
members. . . . That a confederation did not destroy
sovereignty or independence. That she bound her
self only by the ratification and reserved all the pow
ers not therein given to the General Government.
. . . There is no definition of what constitutes a citi
zen, nor how a native becomes a citizen. . . . The
Fourteenth Constitutional Amendment was desig
nated to enlarge and to determine the relations of citi
zens and to place their obligations beyond dispute." 1
It followed with inexorable logic, from this propo
sition, that when the State of Alabama adopted the
ordinance of secession, Judge Campbell must either
sever his political relation to the State and become a
citizen of another which had not adopted such an
ordinance, or resign his office; hence he says: "After
using every effort in my power to secure peace and
prevent war, when it became evident that I could do
no more, I resigned, as a consequence of the seces
sion of the State of Alabama." His associate, Judge
Wayne, a citizen of Georgia, holding the view that
her ordinance of secession was unauthorized and
void, working no change in the relation of the State
1 Brief in Slaughter-House Cases.

156 JOHN ARCHIBALD CAMPBELL
to the Union, remained on the Bench. Both acted in
accordance with, and followed, the logical conclu
sion to which their opinions led.
Men of this generation find it difficult to under
stand and appreciate the trials of mind which those
of the pre-civil war period underwent. During the
war and for many years afterwards, it was the fash
ion to refer to those who followed their States as
"traitors" and to their conduct as "treason." These
terms, incorporated into the language of legislation,
judicial decisions, and the literature of those days,
crystallized this conception of the conduct of South
ern men. To those to whom these men and their mo
tives were known and to whom the political history
of this country is familiar, it has been a source of as
tonishment that such terms should have ever been
applied to them or their conduct, and it is gratifying
to note that, with the passing of the passions and the
coming of a clearer vision, with conciliation and
growth of National unity, many men of Northern
birth and sympathies are inclined to give expression
to more generous and, therefore, more just views.
Charles Francis Adams clearly states the attitude of
men who had been educated in the school of thought
to which Judge Campbell belonged. He says they
held that "ultimate allegiance was due to the State
which defined and conferred citizenship, not to the
'central organization which accepted as citizens
whomsoever a State pronounced to be such." x The
1 Adams, Charles Francis: Trans-Atlantic Historical Solidarity,
46; Lee's Centennial; Bradford, Gamaliel: Lee, the American, 25;
Munford: Virginia's Attitude Toward Slavery and Secession, 290.

SERVICES TO THE CONFEDERACY 157
question has been so thoroughly "threshed out"
that it would seem impossible for any new light to be
thrown upon it. George Bancroft happily expressed
the sentiment of the men who outlived the passions
of the Civil War. In 1874, Dr. S. Weir Mitchell,
Senator Bayard, Senator Sherman, General Sher
man, and several other gentlemen were dining with
Mr. Bancroft, when General Sherman, referring to
some incidents of the war, spoke of the Southerners
as "rebels, who may have also confederated,"
whereupon Mr. Bancroft said: "Fill your glasses,
gentlemen; let us drink to the memory of dead Con
federates, who are no longer Rebels." Turning to
Dr. Mitchell, he said: "After all, Doctor, it was a
civil war and it is time to begin to be charitable in
the use of labels." 1
Without regard to the result of the war, measured
by the standard of loyal devotion to an intellectual
and moral conviction of political duty Judge Camp
bell is justly entitled to the judgment pronounced by
George Ticknor Curtis upon his conduct. He said:
"This is an appropriate occasion to speak of the
quality of that patriotism which led pure and hon
orable men, like Judge Campbell, and hosts of oth
ers in civil and military life, to devote their energies
and to stake their lives, after the great issue was
made up, in an effort to establish a country for them
selves and their posterity. Patriotism then became,
to such men, a duty to the land of their birth and
their affections. In the moral estimate which history
should form of their conduct, it should be remem-
1 Howe, M. A. de W.: Life and Letters of George Bancroft, n, 280.

158 JOHN ARCHIBALD CAMPBELL
bered that events, sweeping on with irresistible
force, had compelled such men to make a choice be
tween adhesion to the Federal Government and ad
hesion to the separate and independent government
which the Southern people wished to make." 1
Judge Campbell took no part in the war nor held
any position under the Confederate Government
until, during the month of October, 1862, George W.
Randolph, Secretary of War, applied to him to
accept the position of Assistant Secretary of War,
stating that there was in the War Department a
large accumulation of business of a civil nature re
quiring the attention of an experienced lawyer. It is
probable that, in addition to Judge Campbell's repu
tation as a lawyer, the Secretary was influenced in
calling him to his aid by the fact that he had re
ceived training at the United States Military Acad
emy at West Point. Although Mr. Randolph recog
nized that the position was not in keeping with the
character and qualifications of Judge Campbell, he
urged his acceptance because of the aid which he
was capable of rendering.
Judge Campbell says: "This application was
without any agency on my part. . . . The country
was then suffering all the calamities of invasion.
Much of the business and the feelings and sensibili
ties of the country were concentered in the War
Office, for conscription had placed the whole mili
tary population under it, and impressments were
doing the same in regard to property. The courts
were debilitated. Military rule dominant. The office
1 Memorial Addresses — Justice Campbell, 23.

SERVICES TO THE CONFEDERACY 159
of Assistant Secretary did not give to me any con
trol over military operations or organizations. It did
not charge me with the subsistence, movement, or
employment of troops; or with the conduct of the
war. It gave me no control, custody, oversight, care,
or responsibility in regard to prisoners of war. I had
no charge of regular or irregular enterprises of war,
or of any secret service or the employment of money.
I decided a vast number of cases for the exemption
of citizens from military service. I made details in
cases of justice, equity, and necessity, and granted
exemptions on that account, on appeal from the sub
ordinate officers. I revised a vast number of cases of
arrests by subordinates. I superintended the current
correspondence of the office. I made a great variety
of orders and decisions in particular cases. The office
was one that imposed irksome, uncongenial, and, in
most cases, trivial labor. But I do not doubt that I
alleviated much distress, mitigated the severities of
the war to some persons, enforced justice and order
in many instances, and won the respect of those hav
ing connection with the office, by a firm, impartial,
and benevolent administration. I applied to resign
in 1863. I resigned in 1865. At each time I was as
sured that my services could not be dispensed with,
and at the last time nearly all the Congressmen
made an appeal to me to remain. I have no belief
that I made any impression upon the great events of
the war; or any upon the policy of the Government.
All I mean to say is that, under the difficult circum
stances of the time, in a subordinate and compara
tively unimportant office, I found the means to do a

160 JOHN ARCHIBALD CAMPBELL
great deal of good. I diminished the weight of the
heaviest calamity that ever befell a country, to
( many; I have no reason to believe that I aggravated
them to any one person. This is my consolation for
loss of exalted position, competent fortune, and my
present captivity. One motive for accepting this
office was that I might have some influence in pro
moting peace. A position of isolation is one without
influence or usefulness. The legislative and executive
action of the United States in 1862 undoubtedly
prolonged the war and made peace more difficult.
The war seemed to change its character and objects
during that year, and to become more exasperated
and intense. I was in favor of peace, if one could be
made, upon the basis of a reunion of the States at
| any time after my resignation. The abrupt and forci
ble emancipation of slaves made a new condition
which the people of the Southern States regarded
with apprehension and abhorrence. After that legis-
\ lation it became apparent that peace was to result
only from the exhaustion of the Confederate States.
¦ 1n the fall of 1864 I brought the matter to the notice
; of the Secretary of War. I exposed the situation of
the Treasury and the error in the report of its chief.
I brought to the notice of members of Congress the
condition of things and urged upon them to take
measures for negotiation. In December, 1864, I ad
dressed Mr. Justice Nelson an elaborate letter in
viting a conference with him, and if possible Messrs.
Ewing, of Ohio, Curtis, of Boston, and Secretary
Stanton, to ascertain whether measures for peace
could not be set on foot. Two copies of this letter,

SERVICES TO THE CONFEDERACY 161
with the concurrence and sanction of Messrs.
Hunter and Seddon, were sent in December, but
no answer was received."
Like many other Southern men, Judge Campbell ;
became convinced, during the winter of 1864, that I
the military and financial resources of the Confeder
acy were madequate to a continued and successful
contest. In order to forestall the consequences of
what he foresaw would be certain and disastrous de
feat, he thought that some effort should be made to
secure peace on the best terms which could be ob
tained by negotiation. By reason of his position, as
Assistant Secretary of War, he was enabled to know
of the constant depletion of the resources of the Con
federacy. His relations with Judge Nelson, while on
the Bench, were very intimate, and he knew of the
latter's conservatism and patriotism. Accordingly,
on December 1, 1864, he addressed to him the fol
lowing letter:
My dear Sir:
It has more than once occurred to me, since my
intercourse with you was suspended by the existing
war, to address you with a purpose of ascertaining
whether anything could be effected for the ameliora
tion of the condition which it has occasioned. There
were practical difficulties that were not easily to be
overcome. I had no assurance that any good would
follow from it. It might expose you, as well as my
self, to misconstruction; and events seemed to be so
little under the control of any private and individual
will or action that a submission to them was all

162 JOHN ARCHIBALD CAMPBELL
which was apparently left for any one having no
particular control. An intelligent and reverend
friend who lately came through the United. States,
passing by the headquarters of two of their armies,
informs me that one of their commanders expressed
to him the opinion that good might follow from a
frank and candid interchange of opinions and in
formation between citizens of the different sections
and that, so far from opposing obstructions, he
would grant facilities for that kind of intercourse.
This observation was a general one, and of course
had no relation to you or to myself. It was repeated
to me as seriously, sincerely made, and one upon
which some notice or action might be taken. It has
had the influence to induce me to address you this
letter. My opinions and feelings as to the manner
proper to compose the existing difficulties have un
dergone no change since the day we parted in Wash
ington in 1861. My conviction is firm and abiding,
greatly fortified by what I know, that had the coun
sels which you gave on that day been followed, in
the fullness of their spirit, and even to their letter, the
country would have escaped the heaviest calamities
that have since befallen it. I believe now that an
honorable peace will relieve the country from evils,
possibly more permanent and more aggravated than
those which have been suffered. Nor have I, at any
time, hesitated to believe that wise, moderate, mag
nanimous counsels might result in an honorable
peace. I can say to you now, what I expressed then,
that the consequences of such a peace I was ready to
accept. I believe that from it all that a good or wise

SERVICES TO THE CONFEDERACY 163
man ought to desire would surely, and in good time,
appointed by Providence, result. If you suppose that
any advancement to this end would be made by any
communication between us, or between myself and
others, I am ready to hold that communication. Mr.
Ewing, Judge Curtis, or Mr. Stanton, have occurred
to me in this connection. I should not bear any offi
cial commission nor have any proposition from any
public authority. My object is simply to promote an
interchange of views and opinions which might be
productive of good and scarcely do harm. I would
meet you in the U. S., or at any point beyond the
Confederate lines which might be designated. For
this a passport would be necessary. If you would
prefer it, some time to visit Richmond, upon inform
ing me, I would acquaint you whether it can be done.
This letter is not marked private or confidential. I
am well aware of the fact that it will be proper to
communicate it to other persons. Of course it is not
my wish that any undue publicity should be given it.
Very respectfully and truly yours
J. A. Campbell
On the back of the copy of this letter, retained by
Judge Campbell, he made the following endorse
ment: My letter was sent to Justice Nelson in December,
1864, through the secret signal service of the Con
federate States. Two copies were sent and both re
ceived by Judge Nelson in the winter of 1864-5. He
exhibited them to Mr. .Stanton, who said that it was
the most satisfactory of all that had been suggested.

164 JOHN ARCHIBALD CAMPBELL
He stated that the President (Lincoln) had initiated
a scheme, and that Mr. Frank Blair was charged
with it. Mr. Blair was in Richmond and nothing
could be done till that plan had been tried. Mr. Sec
retary Seddon and Mr. Hunter read this letter. Mr.
Davis was informed of it by Mr. Seddon and con
sented that this attempt should be made.
It will be observed from the endorsement on the
letter that Mr. Blair had gone to Richmond upon
the errand which preceded the Hampton Roads Con
ference. What effect the letter had on President
Lincoln's mind in connection with the Conference is,
of course, conjectural. The history of the events pre
ceding the Hampton Roads Conference are too well
known to require repetition. The first occasion on
which Judge Campbell's name is mentioned in con
nection with it is found in Blair's account of his
visit to President Davis in Richmond. He says that
President Davis said that "he would appoint a per
son or persons who could be implicitly relied on by
Mr. Lincoln; that he had on a former occasion indi
cated Judge Campbell, of the Supreme Court, as a
person who could be relied on. I told him he was a
person in whom I had unbounded confidence, both
as regarded talents and fidelity." x
The "Memorandum" of the Hampton Roads
Conference, prepared by Judge Campbell at the re
quest of Alexander H. Stephens and R. M. T. Hun
ter, the other Commissioners, contains a full ac
count of what had been published concerning the
1 Nicolay and Hay: Abraham Lincoln, x, 106.

SERVICES TO THE CONFEDERACY 165
conversations between Lincoln, Seward, and the
Confederate Commissioners.1 It has been stated,
and frequently repeated, that in this conversation
Lincoln said to the Commissioners: "Let me write
Union and you can write anything else you want,"
and that he proposed, if the Southern States would
abolish slavery, disband their armies, cease resist
ance to the National authority, he would recom
mend to Congress that the owners be paid $400,000,-
000 as compensation for their slaves. But for the
insistency with which this statement has been made
and repeated, and the character of some of those
who have given it their endorsements, it would
seem unnecessary to take notice of it. The fact that
those who were present and engaged in the Confer
ence made records, more or less official, of what
passed between Lincoln and the Commissioners, in
no one of which is there any suggestion of such lan
guage, renders it improbable that it was used. No
notes were made of the conversation at the time,
and there was an agreement that no record was to
be made. Reports were made by Lincoln and by
the Confederate Commissioners to their respective
Governments.2 It is unthinkable that either or all of
them would have failed to mention the proposition
if it had been made. The interest attaching to the
assertion that Lmcoln made such an offer consists
in the reflection upon the Confederate Commission
ers for omitting any reference to it. Each of the
Commissioners desired to bring about a settlement,
1 Southern Historical Society Papers, in, 168.
1 Richardson: Messages and Papers of the Presidents, vi, 260.

166 JOHN ARCHIBALD CAMPBELL
and was willing to do so by the return to the Union
of the seceded States; each recognized that peace
could not be secured upon any other terms; each
had become convinced that the Confederacy was
not able successfully to maintain the struggle for its
separate existence; and each well knew that such
propositions, or any of them, would strongly appeal
to large numbers of the Southern people. Passing,
therefore, the element of bad faith involved in the
charge that they suppressed the truth, and resorting
to the argument based upon the reason of the thing,
it is impossible to believe that they prevented the
consummation of the very purpose which they so
much desired by suppressing propositions which
would almost certainly have accomplished it. The
charge has been thoroughly examined, its origin and
source, with its repetitions, and the evidence care
fully collated by General Julian S. Carr, of Durham,
North Carolina.1
Some years after the war, in an interview Judge
Campbell gave his recollection of what was said
upon this subject, saying: "In a conversation with
Mr. Lincoln I asked him whether, if the South laid
down its arms and accepted the Union again, the
people would have any chance to receive compensa
tion for their slaves. To this Mr. Lincoln replied that
he could not promise what the attitude of the Gov
ernment might be on the subject, but for himself he
would heartily favor a compensation on the ground
1 The Hampton Roads Conference. See also Fitzhugh Lee's "Fail
ure of the Hampton Roads Conference," Century Magazine (July,
1896), mi, 476.

SERVICES TO THE CONFEDERACY 167
that the North was as responsible for slavery as the
South and had abetted in it, traded in it, and de
fended it until slavery became a vast, public ques
tion and invited war."
While the evidence is overwhelmingly against the
suggestion that Mr. Lincoln made any of the propo
sitions to the Commissioners, it is not improbable
that there is foundation for the belief that, with the
acceptance of the basic propositions, namely, re
turn to the Union, disbanding of the Confederate
armies, and acceptance of the emancipation of the
slaves, undefined suggestions looking to adjust
ments and amnesties were made. General Grant
writes that "not a great while after the Conference"
Mr. Lincoln visited him at City Point. "He spoke
of having met the Commissioners and said that he
had told them that there would be no use in enter
ing into negotiations unless they would recognize,
first, that the Union, as a whole, must be forever
preserved, and second, that slavery must be abol
ished. If they were willing to concede these two
points, then he was ready to enter into negotiations
and was almost willing to hand them a blank sheet
of paper with his signature attached, for them to fill
in the terms upon which they were willing to live
with us in the Union and be one people." J This was
written twenty years after the conversation with
Mr. Lincoln, but it is probably a fairly accurate ac
count of what he said. It will be noted that Grant
does not state that Mr. Lincoln said that he made
this proposition to the Commissioners, but that, as
1 Grant, U. S. : Personal Memoirs, n, 422.

168 JOHN ARCHIBALD CAMPBELL
a prerequisite to any negotiations, the Commission
ers were to recognize that the Union was to be pre
served and slavery abolished, and if they agreed to
those points, then Mr. Lincoln had a certain disposi
tion which he indicated to Grant, but he does not
say that he indicated it to the Commissioners. There
is abundant evidence that Mr. Lincoln favored in
demnifying the Southern people for the slaves and
that the figure $400,000,000 was in his mind.
Among the papers of William Pitt Fessenden,
Secretary of the Treasury in 1865, was found the
following: "A summons to a Cabinet meeting on the en
graved form used for that purpose. " Depaetment of State
" Washington, February 5, 1865
"Sir: "The President desires a meeting of the Heads of
Departments at the Executive Mansion at 7 o'clock
this evening. "F. W. Seward, Ass't. Sec'ty."
Senator Fessenden returned from the meeting
and endorsed the invitation:
"A proposition to offer the Confederate and other
slave States 400 millions of dollars, to be divided
among them according to the census of 1860, and a
general amnesty, provided they disbanded before
April 1st, 200 million to be paid then and the other
200 million on July 1st, if the Constitutional Amend
ment be then adopted." 1
1 Fessenden, Francis: The Life and Public Services of William
Pitt Fessenden, n, 7.

SERVICES TO THE CONFEDERACY 169
It will be noted that this meeting occurred two
days after the Conference. The Cabinet opposed
submitting the proposition to Congress.
It is also significant that in Judge Campbell's
"Memorandum," drawn up at the request of, and
approved by, his associates, while the fundamental
conditions upon which peace could be secured are
stated clearly, there runs through the language used
the suggestion that terms of adjustment were left
open and that the statement made by Senator
Hunter that Mr. Lmcoln demanded "unconditional
submission " was promptly repudiated. Judge Camp
bell's questions indicate that he was seeking infor
mation in respect to practical plans for settling
the questions which would arise upon the recon
struction of the Union. Mr. Lincoln had in his mind
"indemnities to the masters of slaves."
In a letter to J. M. Mason, June 11, 1870, Jeffer
son Davis writes: "Mr. Hunter promised me that he
would write a full account of the sayings and doings
of the Commission which met Lmcoln and Seward
at Hampton Roads. I have not thought it well
to write him while he was subject to military and
Underwood authority." He further writes: "They
agreed with Lincoln and Seward that they would
regard their conversations as confidential. The re
port when they came back was, therefore, to a great
extent, oral; the written report so meager as not to
furnish, as it seemed to me, what was needful to a
fair comprehension of their failure and the reasons
for it. I urged, seriously, that a fuller report should
be made." Mr. Davis refers to what Hunter told

170 JOHN ARCHIBALD CAMPBELL
him, and this Mr. Davis regarded as a "surrender
at discretion." This letter, General Fitzhugh Lee
says, Mason sent to Hunter, who, on September 19,
1870, wrote Mason, saying: "I have read Davis's
letter which you enclosed, and regret that I did not
write out minutely my recollections of what passed
at the Hampton Roads Conference whilst they were
fresh in my mind. But I was imprisoned soon after
the war, and my papers were either seized or dis
persed, and since my release I have been engaged in
hard work for a livelihood." He says that he had ex
amined Stephens's account of the Conference pub
lished in the "Eclectic Review," and it seemed to
him very fair "and from which I do not much differ,
except as to the report of Seward's conversation on
slavery. ... I know that in our opinion no settle
ment was possible except upon the condition of abol
ishing slavery and returning to the Union. But there
was a question beyond that. Supposing these things
to be inevitable, as they then seemed to be, was it
not worth the effort to save as much as possible
from the wreck? Upon this Mr. Davis and I differed.
I thought the effort ought to be made, but I saw
then, and see it still more plainly now, that there
might be two sides to that question." *
Judge Campbell wrote to Hunter, October 31,
1877, that he concurred with his recollection as to
what occurred at the Conference. The frequent
references made by Alexander H. Stephens in the
"Recollections," being his journal kept while im-
1 Lee, Fitzhugh: "Failure of the Hampton Roads Conference,"
Century Magazine (July, 1896), lii, 476.

SERVICES TO THE CONFEDERACY 171
prisoned at Fort Warren, indicate that something
was said to the Commissioners at Hampton Roads
by Mr. Lincoln which he did not feel at liberty to
make public. Stephens was greatly distressed by
the publication of an article in the "Chronicle and
Sentinel" of Augusta, Georgia, purporting to con
tain his version of what was said at the Conference.
He says: "The reasons I am reported to have as
signed for not making public what Mr. Lincoln said
about compensation for emancipated slaves, is not
accurately put; nor is what Mr. Lincoln said on that
subject." J
In his letter to Seward he wrote: "I have made no
report for the public but that which was joint with
the other Commissioners and which was published
in the Richmond papers. Upon the main points in
that Conference, those upon which it was sought, I
have never, even in private, made any statement
that could reach the public. For great public reasons,
I abstained from it.2 Stephens later gave his version
of the Conference." 3
Judge Campbell concurred with Hunter and Ste
phens v in thinking that Mr. Lincoln's proposition
should have been made the basis of further negotia
tion. Mr. Davis did not concur with them. On July
10, 1865, Judge Campbell wrote: "I acted as one of
the Commissioners at the Conference in Hampton
Roads and evinced earnest disposition to make
peace at that Conference. I refused to participate in
the meeting to influence the people on my return
i Recollections, 281. 2 Ibid., 373.
8 The War Between the States, chap, xxiii.

172 JOHN ARCHIBALD CAMPBELL
from that Conference. I urged the appointment of a
Commission for the purpose of entering into negoti
ations upon the basis of Mr. Lincoln's propositions.
I addressed, at the request of Governor Graham, of
North Carolina, a letter to him explaining Mr. Lin
coln's views, how they would leave the Confederate
States and urging the effort to accept the terms he
held out."
Judge Campbell reviews the condition of the
Army and the Treasury, concluding: "It is the prov
ince of statesmanship to consider these things. The
South may succumb, but it is not necessary that she
should be destroyed. I do not regard reconstruction
as involving destruction, unless our people should
forget the incidents of their heroic struggle and be
come debased and degraded. It is the duty of their
statesmen and patriots to guard them in the future
with even more care and tenderness than they have
done in the past. There is anarchy in the opinions of
men here, and few are willing to incur the responsi
bility of taking or advising action. In these circum
stances, I have surveyed the whole ground, I be
lieve calmly and dispassionately. The picture I do
not think has been too highly colored. I do not ask
that my views be accepted, but that a candid in
quiry be made with a view to action. I recommend
that General Lee be requested to give his opinion
upon the condition of the country, upon the sub
mission of these facts, and that the President sub
mit the subject to the Senate^ or to Congress, and
invite their action."
As the result of this letter and the action taken by

SERVICES TO THE CONFEDERACY 173
the Secretary of War, the information derived from
the heads of the Departments and from General
Lee, a communication enclosing the reports was
submitted to Congress, March 14, 1865. A resolu
tion was prepared by W. C. Rives, reciting the con
ditions, declaring that a longer prosecution of the
war with any reasonable prospect of success was
impracticable, and advising the President to pro
pose an armistice preliminary to the reestablish-
ment of peace and Union, "and for the special pur
pose of settling and ascertaining certain points
incident thereto, to restoration of the Union, and
particularly whether the seceded States, on their
return, will be secured in their rights and privileges
as States under the Constitution of the United
States." This resolution was handed by Judge Campbell
to William A. Graham, Senator from North Caro
lina, to be offered in the Senate. Graham concurred
in its recitals and in the advice to the President and
the necessity for prompt action. He submitted it to
a number of Senators who said that, if passed, no
action would be taken and nothing could be done.
Graham, therefore, returned it to Judge Campbell.
William A. Graham, a man of singular purity of life,
loftiness of purpose, and sanity of mind, in a letter
to Mrs. Graham, February 26, 1865, writes: "I have
had several confidential conversations with Judge
Campbell, who is the most judicious man connected
with the Government."

CHAPTER VII
THE PROBLEM OP RESTORATION
The evacuation of Richmond, April 2, 1865, brought
Judge Campbell's official career to an end and closed
another chapter in his life. He knew perfectly well
that General Lee could not longer continue the
struggle, and that the surrender of his army and the
downfall of the Confederacy were iniminent. Re
ferring to his efforts to secure negotiation, he says:
"All these efforts being abortive, I could only await
the ruin certain to arrive. I wrote to Governor Fitz-
patrick of Alabama, of date 9th March, '65, telling
him that Richmond would be evacuated, General
Lee's army disbanded or surrendered, and the Con
federate cause destroyed, and to take measures for
the restoration of Alabama to the Union. I deter
mined to remain in Richmond when evacuation
should occur and to renew my obligations to the
United States."
Judge Campbell now made his last effort to serve
the South as a peacemaker. Probably there is no
office which a man can undertake, so far as the ap
preciation of those whom he attempts to serve is
concerned, which subjects him to more criticism and
brings him less compensation than that of a medi
ator. It is very doubtful whether any statesman
has advanced his reputation or strengthened his
hold upon popular favor by efforts to secure peace
between warring factions or belligerent nations. It

THE PROBLEM OF RESTORATION 175
is equally doubtful whether so high and valuable
a service is rendered in any other capacity. While
Judge Campbell's efforts to promote peace were
prompted by the highest motive and the most pa
triotic purpose, they subjected him to misunder
standing, misconstruction, and misrepresentation.
In view of the distorted accounts of his conversa
tions with Mr. Lincoln in Richmond, and his con
duct based upon his letters of April 6 and 7, 1865, a
recital of the principal facts connected with this in
cident in his career is necessary. In his account of
the manner in which he was brought into conversa
tion with Mr. Lincoln and the subsequent course pur
sued by him, he says that after the entry of the Fed
eral army into Richmond, he called upon General
Shepley, Military Governor, who informed him that
Mr. Lmcoln was then at City Point. To^the sugges
tion of Judge Campbell that he would be pleased to
meet the President, the General said that he would
see General Weitzel, in command of the army of oc
cupation, and if he consented would telegraph him.
Mr. Lincoln came to the city that afternoon, going
to the house recently occupied by Mr. Davis. Judge
Campbell says: "Shortly after his arrival a staff
officer came for me and I was conducted to a small
room in that building, where I met President Lin
coln and General Weitzel. . . . His manner indicated
that he expected some special and, perhaps, author
ized communication to him from the Confederate
Government. I disabused his mind of this by saying
that I had no commission to see him. ... I then
told Mr. Lincoln that the war was over, and all that

176 JOHN ARCHIBALD CAMPBELL
remained to be done was to compose the country.
... I spoke to him particularly for Virginia, and
urged him to consult and counsel with her public
men and her citizens as to the restoration of peace,
civil order, and the renewal of her relations as a
member of the Union. I urged that, although there
had been passion, petulance, and animosity in the
secession movements, there were also serious differ
ences of opinion as to constitutional obligations and
responsibilities, upon which there was a ground for
opposing opinions. I informed him that efforts for
peace had been made during the winter and that
the most prominent men of the State were ready to
aid in the work of pacification, and that if he would
call them together the work would be nearly done;
that 'when leniency and cruelty play for the con
quest of a kingdom, the gentlest player will be the
soonest winner.' Mr. Lincoln asked me to whom I
alluded in asking him to take counsel with the pub
lic men of Virginia. I mentioned, among others, Mr.
Rives, Mr. Hunter, Governor Letcher, Mr. Bald
win, Mr. Caperton, Mr. Holcombe, and General
Lee himself. Mr. Lincoln, at the end, answered that
my general principles were right; the trouble was
how to apply them; that he was impressed with
what I had said of the difficulty of finding any one
willing to deal with the subject of peace. He said
that he 'wanted to have another talk,' and, for that
purpose, would remain in Richmond that night. . . .
It was agreed that I should visit him on the gunboat
(Malvern) on which he had come to Richmond from
City Point, and that I might bring with me citizens

THE PROBLEM OF RESTORATION 177
of the place. I sent invitations to several, but
most of them were absentees, others declined to go
with me."
On the following day, accompanied by Gustavus
Myers, a member of the Richmond Bar, Judge
Campbell went to see the President. He says: "The
President was prepared for the visit and spoke with
freedom and apparent decision. ... In the course of
the conversation, he produced a paper written by
himself, but not signed nor addressed to any one.
This paper he read over, and then commented upon
each clause at some length and handed the paper to
me. I did not perceive any material difference be
tween the terms expressed in this paper and those
announced by the President at Hampton Roads.
. . . My answer to the President was that I did not
believe that there would be any opposition to his
terms. . . . Mr. Lincoln told me that he had been
meditating a plan, but that he had not fixed upon
it, and if he adopted it, would write to General
Weitzel from City Point. This was to call the Vir
ginia Legislature together, 'the very Legislature
which had been sitting up yonder,' pointing to
the Capitol, 'to vote the restoration of Virginia
to the Union.' He said he had a government in Vir
ginia — the Pierpont Government — but it 'had
a very small margin,' and he was not 'disposed to
increase it.' "
After some inquiries addressed to Mr. Myers,
relative to the composition of the Legislature, they
parted with him with expressions of mutual good
will. The next day, April 6, 1865, Mr. Lincoln sent

178 JOHN ARCHIBALD CAMPBELL
General Weitzel the following letter: "It has been
intimated to me that the gentlemen who have acted
as the Legislature of Virgmia, in support of the re
bellion, may now desire to assemble at Richmond,
and take measures to withdraw the Virginia troops
and other support, from resistance to the General
Government. If they attempt it, give them permis
sion and protection until, if at all, they attempt
some action hostile to the United States, in which
case you will notify them, give them reasonable time
to leave, and at the end of which time arrest any
who remain. Allow Judge Campbell to see this, but
do not make it public."
In accordance with the interpretation placed upon
the letter by Judge Campbell, on April 7, 1865, he
addressed a letter to General Joseph R. Anderson
and others, as a Committee, setting out the sub
stance of Mr. Lincoln's terms contained in the
"Memorandum" given him, and the conversations
with him. The members of the Legislature then in
Richmond promptly met, and with the approval of
General Weitzel, issued an "Address to the People
of Virginia."
But on April 12, Mr. Lincoln addressed a letter to
General Weitzel, withdrawing his consent for the
Legislature to assemble. Senator R. M. T. Hunter
went to Richmond to meet the Legislature, but was
ordered to leave within twenty-four hours. Judge
Campbell, together with Mr. Hunter, proposed to
General Ord, who had relieved General Weitzel, to
go to see Mr. Lincoln. A telegram was sent on April
14, 1865, to Washington, asking permission to go.

THE PROBLEM OF RESTORATION 179
No answer was received. That night Mr. Lincoln
was assassinated.
The "Memorandum" handed to Judge Campbell
by Mr. Lincoln was as follows :
"As to peace, I have said before, and now repeat,
that three things are indispensable:
"1. The restoration of the National authority
throughout the United States.
"2. No receding by the Executive of the United
States on the slavery question from the position as
sumed thereon in the late annual message, and in
preceding documents.
"3. No cessation of hostilities short of an end of
the war, and the disbanding of all forces hostile to
the Government. That all propositions coming from
those now in hostility to the Government, not incon
sistent with the foregoing, will be respectfully consid
ered and passed upon in a spirit of sincere liberality.
"I now add that it seems useless for me to be
more specific with those who will not say that they
are ready for the indispensable terms, even on con
ditions to be named by themselves. If there be any
who are ready for these indispensable terms, on any
conditions whatever, let them say so, and state
their conditions, so that the conditions can be
known and considered. It is further added, that the
remission of confiscation being within the executive
power, if the war be now further persisted in by
those opposing the Government, the making of con
fiscated property at the least to bear the additional
cost will be insisted on, but that confiscations (ex
cept in case of third party intervening interests) will

180 JOHN ARCHIBALD CAMPBELL
be remitted to the people of any State which shall now
promptly and in good faith withdraw its troops from
further resistance to the Government. What is now
said as to the remission of confiscation has no refer
ence to supposed property in slaves."
Thus ended in failure the last effort made by
Judge Campbell as a mediator and to promote
peace. As this transaction has a relation to subse
quent events of larger significance, a full account of
the conduct of all who were concerned in it is im
portant and of interest.
It will be well to keep in mind the order in which
these events occurred. Mr. Lincoln came to Rich
mond and had the first conversation with Judge
Campbell, in the presence of General Weitzel, on
April 4, 1865. On April 5 the second conversation
took place when Mr. Lincoln gave Judge Campbell
the "Memorandum" which Mr. Lincoln read over
and commented upon. On April 6, 1865, Mr. Lincoln
sent to General Weitzel the letter which he directed
to be shown to Judge Campbell. Acting upon the
"Memorandum" and the letter, as interpreted by
him, by General Weitzel, and by General Shepley,
Judge Campbell, on April 7, prepared the letter
to General Joseph R. Anderson and other citizens.
On April 11, 1865, Judge Campbell prepared and
submitted to General Weitzel the "Address to the
People of Virginia." Upon this "Address" General
Weitzel wrote the words, "Approved for publication
in the 'Whig' and in handbill form. G. Weitzel,
Major General Commanding." Judge Campbell's
letter and the "Address " were inspected and revised

THE PROBLEM OF RESTORATION 181
by General Shepley, the Military Governor, and
General Weitzel, and examined by Charles A. Dana,
Assistant Secretary of War, then in Richmond.1
General Lee surrendered April 9, 1865. Mr. Lin
coln returned to Washington on the evening of that
day. He addressed a meeting of the people at the
White House on Tuesday night, April 11, in which
he said that he had prepared a plan for the inaugura
tion of the National authority and reconstruction in
1863, which would be acceptable to the Executive
Department, and that it was approved by every
member of the Cabinet; but he was now censured for
his agency in setting up and seeking to sustain the
State Governments, though the Executive claimed
no right to say when or whether members should be
admitted to seats in Congress. Mr. Welles says that
at the Cabinet meeting on Tuesday, the proclama
tion or order of General Weitzel was discussed very
fully. It caused surprise and, on the part of some,
dissatisfaction and irritation. "Stanton and Speed
were particularly disturbed." Mr. Lincoln was sur
prised that his object and the movement were so
generally misunderstood, and said that, under the
circumstances, perhaps, it would be best that the
proceeding should be abandoned; that he could not
go on with every one opposed to him, but that civil
government must be established as soon as possible
in those States where hostilities had ceased. There
must be courts and law and order, or society would
be dissolved.2 1 John A. Campbell: Recollections, 9, 20, 23.
2 Galaxy, April-May, 1872, 521, 663.

182 JOHN ARCHIBALD CAMPBELL
Mr. Stanton, in his examination before the Judi
ciary Committee of the House of Representatives,
May 18, 1867, gives his version of the course pur
sued by Mr. Lincoln and the influence under which
he acted. He said: "President Lincoln went to the
city of Richmond, after its capture, and some inter
course took place between him and Judge Campbell,
formerly of the Supreme Court of the United States,
and General Weitzel, which resulted in the call of
the rebel Legislature to Richmond. Mr. Lincoln on
his return to Washington reconsidered that matter.
The policy of undertaking to restore the govern
ment, through the medium of rebel organizations,
was very much opposed by many persons and very
strongly and vehemently opposed by myself. ... I
had several earnest conversations with Mr. Lincoln
on the subject and advised that any effort to reor
ganize the Government should be under the Federal
authority solely, and to treat the rebel organizations
as absolutely null and void. The day preceding his
death, a conversation took place between him, the
Attorney-General, and myself, upon the subject, at
the Executive Mansion. An hour or two afterwards
and about the middle of the afternoon, Mr. Lincoln
came over to the War Department and renewed the
conversation. After I had repeated my reasons
against allowing rebel Legislatures to assemble, or
rebel authorities to have any participation whatever
in the business of reorganization, he sat down at my
desk, took a piece of paper, and wrote a telegram to
General Weitzel and handed it to me. 'There,' said
he; 'I think that will suit you.' I told him no, it did

THE PROBLEM OF RESTORATION 183
not go quite far enough; that members of the rebel
Legislature would probably come to Richmond, and
that General Weitzel ought to be directed to pro
hibit their assembling. He took up his pen again and
made that addition to the telegram and signed it.
He handed it to me. I said I thought that was ex
actly right. It was transmitted immediately to Gen
eral Weitzel and was the last act ever performed by
Mr. Lincoln in the War Department."
It does not appear that Judge Campbell saw Mr.
Lincoln's dispatch of April 12 to General Weitzel.
This dispatch, read in the light of Mr. Stanton's
statement, contains several significant sentences.
He says that Judge Campbell "assumes that I have
called the insurgent Legislature of Virginia together,
as the rightful Legislature of the State to settle all
differences with the United States. I have done no
such thing. I spoke of them, not as the Legislature,
but as ' the gentlemen who have acted as the Legisla
ture of Virginia in support of the rebellion.' I did
this on purpose to exclude the assumption that I was
recognizing them as a rightful body. I dealt with
them as men having power de facto to do a specific
thing, to-wit, to withdraw the Virginia troops and
other support from resistance to the general Govern
ment for which, in the paper handed to Judge Camp
bell, I promised a special equivalent, to-wit, a remis
sion to the people of the State, except in certain
cases, of the confiscation of their property. Inas
much as Judge Campbell misconstrued this, and is
still pressing for an armistice contrary to the ex
plicit statement of the paper I gave him, and par-

184 JOHN ARCHIBALD CAMPBELL
ticularly as General Grant has since captured the
Virginia troops, so that giving consideration for
their withdrawal is no longer applicable, I wish my
letter to you and the paper to Judge Campbell, both
to be withdrawn or countermanded and he be noti
fied of it." Stanton says that the following words
were, at his request, added: "Do not allow them to
assemble, but if any have come, allow them safe
return to their homes."
The President had before him the letter of April
7 addressed to General Anderson and others by
Judge Campbell, and a letter of the same date writ
ten by Judge Campbell to General Weitzel. He says
that Judge Campbell misunderstood him in assum
ing that he called "the insurgent Legislature of Vir
ginia as the rightful legislature." This involves a
question of construction of language and carries no
suggestion of misrepresentation. It is due to Judge
Campbell to call attention to the fact that, in the
letter of April 7, two days after the conversation
with Mr. Lincoln and one day after the receipt of
the letter from Mr. Lincoln, and doubtless with it
before them, General Weitzel and General Shepley,
the latter a lawyer of distinction, familiar with Mr.
Lincoln's reconstruction plans, Military Governor
of Richmond and later United States Circuit Judge,
"inspected and revised" the letter to General An
derson and the letter of the Committee.1 These let
ters were examined by Charles A. Dana, Assistant
Secretary of War. It will be observed that the letter
to General Anderson states that the letter from Mr.
1 Appleton's Cyclopaedia of American Biography, v, 416.

THE PROBLEM OF RESTORATION 185
Lincoln to General Weitzel "authorized" the latter
to "grant all the facilities of transportation, etc., to
the members of the Legislature to meet," etc. The
"Address to the People of Virgmia" was signed by a
Committee composed of thirty-two citizens, writ
ten by Judge Campbell, and contained the words,
" The General Assembly of the State is called for by the
exigencies of the situation. That the consent of the
military authorities of the United States to the ses
sion of the Legislature in Richmond . . . has been
obtained." Mr. Lincoln further says that Judge Campbell
erroneously assumed that he called the Legislature
"to settle all differences with the United States."
Judge Campbell wrote that he was of the opinion
that "the object of the invitation is for the Govern
ment of Virginia to determine whether they will ad
minister the laws in connection with the authorities
of the United States." He "understood from Mr.
Lincoln, if this condition be fulfilled, that no at
tempt would be made to establish or sustain any
other authority." He thereupon set forth the "in
dispensable conditions" of a settlement, as stated
by Mr. Lincoln, in the written "Memorandum"
given to him. This letter bears date April 7, two
days before Lee's surrender. The "Address to the
People of Virginia," dated April 11, recites, among
other occurrences, "the surrender of the Army of
Northern Virginia and the suspension of the juris
diction of the civil power" as among "the exigencies
of the situation" which required "the immediate
meeting of the General Assembly of the State." The

186 JOHN ARCHIBALD CAMPBELL
matters to be submitted to the Legislature are "the
restoration of peace to the State of Virginia, and the
adjustment of questions involving life, fiberty, and
property that have arisen in the States, as a conse
quence of the war."
In view of the conditions confronting the Presi
dent and the people of Virginia, on April 6, 1865, it
would not seem that the statement of the object of
the meeting of the Legislature was subject to the
criticism that it exceeded the scope of Mr. Lincoln's
conversation and written "Memorandum." General
Ord's letter is carefully framed. He wrote: "I am in
structed by the President to inform you that, since
his paper was written on the subject of reconvening
the gentlemen who acted under the insurrectionary
Government as the Legislature of Virginia, events
have occurred anticipating the objects had in view
and the convention of such gentlemen is unneces
sary. He wishes the paper withdrawn and I recall
my publications assembling them."
Judge Campbell replied to the letter, enclosing
the "Memorandum" given to him by the President,
saying: "The communication of President Lincoln
to me, in respect to convening the Legislature of
Virgmia, was addressed to General Weitzel. I read
this communication by the authority of the writer
and imparted its import to those who were inter
ested in fulfilling its requirements. The object was
to restore peace in Virgmia on the terms mentioned
in the enclosed paper by the agency of the authori
ties that have sustamed the war against the United
States. I still think that the issue would have been

THE PROBLEM OF RESTORATION 187
most favorable. The events that have occurred since
have removed some impediments to the action
sought for and preclude the possibility of failure."
This letter closed the incident, so far as Judge
Campbell's personal relation to it was concerned. In
the light of subsequent revelations, it appears that,
unwittingly, Judge Campbell was working at cross-
purposes with those who had determined to prevent
Mr. Lincoln from carrying out his "plan" of restor
ing the seceded States to their relations to the
Union. A marked and irreconcilable difference had
arisen, before the collapse of the Confederacy, be
tween Mr. Lincoln and certain Congressional lead
ers, regarding the status of the Southern States and
the method of their restoration to their normal rela
tions to the Union. This difference both in plan and
purpose had created friction between the President
and such men as Sumner, Stevens, and others who
were in agreement with them. Stanton states the
line of cleavage between Lincoln and those with
whom he was in accord, saying that "Mr. Lmcoln
seemed to be laboring under the impression that
there must be some starting-point for reorganiza
tion, and that it could only be through the agency of
rebel organizations then existing, but which I did
not deem at all necessary"; that his plan was to
"treat the rebel organizations as null and void" and
"to exclude the Southern leaders from any partici
pation in the restoration of the Union." Mr. Lincoln
had, in his interview with General Grant and Gen
eral Sherman at City Point, on March 27, 1865,
clearly outlined his plan for dealing with the State

188 JOHN ARCHIBALD CAMPBELL
Governments, in his instructions to General Sher
man in regard to the course to be pursued by him in
North Carolina. These instructions, which later, and
after Lincoln's death, became the subject of con
troversy between General Sherman and the John
son Administration, were probably not known to
the members of the Cabinet or the Congressional
leaders.1 On April 22, 1865, an article appeared in the
"New York Tribune," purporting to give an ac
count of the conversations between Mr. Lmcoln and
Judge Campbell, and of the conduct of both. Upon
seeing the article, Judge Campbell, on April 26,
1865, wrote a letter, addressed to Mr. Greeley, in
which he said:
"The statements in the letter are erroneous and
injurious in reference to both, and it is hardly possi
ble that they should have been otherwise. I had two
conversations with President Lmcoln. The first was
in the presence of General Weitzel only, the second
only in presence of General Weitzel and G. A. My
ers, an eminent lawyer of this city. A staff officer
came after me to have the first at his quarters, and
the second was had on the steamer Malvern below
this city, by appointment of Mr. Lincoln. I never
1 Sherman's Memoirs; McClure, A. K.: Abraham Lincoln and
Men of War-Times, 218, 221; Spencer: Last Ninety Days of the War
in North Carolina, chap, xi; Stephens: The War Between the States,
614; Morse, J. T., Jr. : Abraham Lincoln, American Statesmen Series,
chap, viii; "Two War-Time Conventions," Century Magazine
(March, 1875), xlix, 723; White: Life of Lyman Trumbull, 231;
Fessenden, Francis: Life and Public Services of William Pitt Fessen
den, n, 77; Pierce, E. L.: Memoir and Letters of Charles Sumner, vr,
212; Welles, Gideon: Galaxy, May, 1872.

THE PROBLEM OF RESTORATION 189
had the conversation with 'Jefferson Davis, Benja
min, and Breckinridge,' quoted in the letter of your
correspondent, and did not inform the President
that I had informed General Breckinridge that I did
not intend to leave Richmond, and I should be glad
to have power to confer at large upon public affairs,
but I obtained no such authority to speak to him on
behalf of any one. I did urge on the President the
adoption of a large, liberal, and magnanimous policy
as best for himself and those around me. ... I did
recommend that he should sanction a meeting of the
prominent, influential, leading men in Virginia at
Richmond and have their counsel and cooperation
in reconstructing its political system [so] as to meet
the new and extraordinary conditions of society.
But the calling together of the political body, the
'rebel legislature,' was the suggestion of Mr. Lin
coln's own mind. He mentioned it for the first time
in our second interview as a matter he was consider
ing . . . that it was desirable in many points of
view, which he mentioned, and that if he came to
a satisfactory conclusion he would make it known
to General Weitzel on his return to City Point, by
letter. "The general principles I had expressed included
such a proposition, and I was gratified that the
President had been led to its consideration, but I did
not intimate such a course in any remarks of mine,
before he suggested it.
"At the interviews on the Malvern, President
Lincoln produced a memorandum in writing which
he read over, and commented on the various clauses

190 JOHN ARCHIBALD CAMPBELL
as he read them. When he had concluded he gave me
the paper. It was not dated, signed, nor addressed.
The conversation reported by your correspondent
did not take place. . . . My intercourse with Presi
dent Lincoln both here and at Hampton Roads im
pressed me favorably and kindly to him. I believe
that he felt a genuine sympathy for the bereave
ment, destitution, impoverishment, waste, and over
turn that war had occasioned at the South, and that
he fully and exactly discriminated the wide differ
ence both in reason and policy between the modes of
proceeding in reference to the disorderly or criminal
acts of individuals which disturb the security of a
State and those civil dissensions and commotions
which arise from the agitation of great questions
which involve the social and political constitution
of a great empire composed of distinct and, in some
respects, independent communities.
"I believe that his scheme of pacification would
have gone as far to the mitigation of the evils that
have befallen the country as the circumstances
allowed of.
"My direct intercourse with President Lincoln
terminated with my visit to him on the Malvern. I
never spoke to him or wrote to him afterwards.
"The following day General Weitzel sent for me
and read the letter of President Lincoln to him upon
the subject of calling together the Virgmia Legisla
ture. "Mr. Lincoln in the course of his conversation had
expressed his object in desiring them to meet and to
vote. It was desirable that that very Legislature

THE PROBLEM OF RESTORATION 191
should recognize the National authority. It was in
the situation of a tenant, between two contesting
landlords, who was called to attorn to the one who
had shown the better title, was his remark. . . . The
Legislature of North Carolina was prepared to act
upon the propositions of peace. My friend Gov
ernor Graham had been prepared to advise Mr.
Davis to send the commissioners who had conferred
with Mr. Lincoln at Hampton Roads, to Washing
ton to accept his terms and to settle the remaining
conditions. This advice being unavailing, he was
prepared to counsel State action.
"General Weitzel invited from me a letter on the
subject. This letter referred to the military condi
tion of the country. It admitted that the great natu
ral and artificial channels of communication and
avenues and emporiums of commerce and inter
course were within the control of the United States,
but that the spirit of the people in the South was not
broken and that a prolonged and embarrassing war
might still be continued; that it was desirable to
prevent this and the province of statesmanship to
avoid it. My counsel was to facilitate the meetings
of these legislatures to bring the minds of the people
to consider of peace. The impediments to the settle
ment were the continuance of hostilities and the fact
that the agencies of the Confederate States were in
disposed to negotiations. Hence the necessity to call
upon the Legislature and suspend hostilities. This
letter was written in advance of the surrender of the
army of General Lee and with the sincere purpose of
stopping the war. I had a very strong impression

192 JOHN ARCHIBALD CAMPBELL
that the evacuation of Richmond and Petersburg
would lead to the disbanding of that army without
any effort on the part of its adversary. There is no
sentence in that letter such as your correspondent
quotes. There was no spirit, as he represents, to dic
tate. This letter was probably sent to President
Lincoln, but it was not addressed to or for him. . . .
I have found it to be proper to deny the accuracy of
your correspondent's history in a Richmond paper,
and I think it to be due to you to explain the signifi
cance of my denial. I do not wish this letter pub
fished. But I earnestly entreat of you not to cease
your efforts to promote a broad, comprehensive,
magnanimous policy in the reconstruction of the
Union." The foregoing is endorsed: "This letter was writ
ten at its date. It was not sent and found in my desk
after my imprisonment. It is a record of the time."
Judge Campbell was arrested on the night of May
7, 1865, and imprisoned at Fort Pulaski.
The Richmond incident had deeply offended cer
tain persons in authority in Washington, and Judge
Campbell was marked for punishment and to be
placed in such a position that he could not thereafter
give them trouble or interfere with their plans and
purposes in regard to "the conquered territories."
This is made clear, by reference to a letter written
by Judge Campbell to R. M. T. Hunter, October 25,
1877, enclosing a letter written by him to Attorney-
General Speed, August 31, 1865. This letter was
written while Judge Campbell was in prison at Fort
Pulaski and shown to Mr. Hunter, who was also

THE PROBLEM OF RESTORATION 193
confined at the fort. In his letter to Hunter, he says:
"You told me if I sent it, I would remain there for
life. I sent it, but my family were advised not to let
it go forward." In the letter to Mr. Speed, Judge
Campbell writes: "I have a letter which contains the
following sentence, ' It is charged in substance, and
I understand with strong censure, that in the call of
the Virginia Legislature, you abused the confidence
of Mr. Lincoln, misrepresenting his views and prom
ises and, by perversion, misled General Weitzel into
grave error of official misconduct. It is alleged that
you violated and concealed the explicit condition
laid down by Mr. Lmcoln that the public men of
Virginia were to meet only as individuals called to
gether for consultation and to promote order; and it
is further alleged that Mr. Lincoln's memorandum,
as furnished by yourself, supports the views taken of
your conduct. This affair was stated to be not the
sole, but a cogent motive of your captivity and its
continuance.' In reply to inquiries occasioned by this
statement, I learn that the Attorney-General made
this statement to an eminent citizen of the United
States. I hope that you will pardon me for intruding
upon you a reply to the charge."
After stating the circumstances under which he
met Mr. Lincoln and the conversations, as set out in
the letter to Mr. Greeley and the "Recollections,"
Judge Campbell says: "My suggestion to Mr. Lin
coln had not extended to the call of any legal or po
litical body. I say to you the first suggestion came
from him, and in the manner I state. . . . The fol
lowing day General Weitzel sent for me to read a

194 JOHN ARCHIBALD CAMPBELL
letter from Mr. Lincoln. This letter has been pub
lished. I understood that letter to authorize a call
for the Virginia Legislature to come to Richmond,
to vote upon the restoration of Virginia to the
Union, and to perform any other legal acts in har
mony with the policy of peace and union. ... I
asked General Weitzel if others than the members of
the Legislature would be allowed to go to Rich
mond. He answered yes, and he would afford trans
portation and facilities to them. ... I wrote a letter
to General J. R. Anderson, explaining what I had
done, read it to General Shepley in presence of Mr.
Dana, Assistant Secretary of War, and left the origi
nal to be copied in that office. No objection was
made to this letter. The letter convening the Legis
lature was examined by General Shepley and cor
rected by him. His corrections were assented to and
the letter went forth in the form he agreed to."
After a full account of every step taken by him,
Judge Campbell concludes: "My entire action and
interference has now been stated. You will see that
I neither misunderstood nor misrepresented Mr.
Lincoln as stated. Mr. Lincoln desired the Legisla
ture of Virginia to be called together to ascertain
and to test its disposition to cooperate with him in
terminating the war. He desired it to recall the
troops of Virginia from the Confederate service and
to attorn to the United States and to submit to the
National authority. He never, for a moment, spoke
of the Legislature except as a public corporate body,
representing a substantial portion of the State. . . .
Mr. Lincoln could not have employed the language

THE PROBLEM OF RESTORATION 195
he did in his memorandum, his letter to General
Weitzel, or his conversation to me, with such a
significance as is attached to it in the charge I am
answering. It never entered into my imagination to
conceive that he used the word 'legislature' to ex
press a convention of individuals, having no public
significance or relations. ... I had no motive for
concealment nor interest in abusing Mr. Lincoln's
confidence. ... I did not mislead General Weitzel.
He heard every word that Mr. Lincoln spoke to me,
and Mr. Lincoln wrote him and not to myself. He
had intercourse with Mr. Lincoln, to which I was
not a party. There was no explicit condition in Mr.
Lincoln's letter to General Weitzel. Mr. Lincoln
authorized him to allow a call for the Legislature
and to exhibit to me his letter. The Legislature was
to act loyally after it met and, if not, to be dis
persed. That was all. The memorandum furnished to
me only strengthened the conclusion that the Legis
lature was to be convened as a public corporate
body. The pledge was if any State would abandon
the contest and withdraw its troops that confisca
tion would be discharged. How was a State to com
ply except through its authorities? Mr. L. wanted
prompt, efficient action to terminate a ruinous war,
and we must infer that he expected the usual means
for the purpose, and besides this he designated the
Legislature as the appropriate instrument to be em
ployed. My wishes were consistent with Mr. Lin
coln's. I desired peace for a ruined, distressed peo
ple. I did not suggest benefits for myself. I did not
importune amnesty or preferment. ... It was for

196 JOHN ARCHIBALD CAMPBELL
the people that I made intercession. I counseled the
conqueror to use magnanimity, forbearance, kind
ness for his own honor and advantage, not specially
for mine. I asked no boon for myself. ... I appeal to
your sense of right, in reference to this grave accusa
tion, and ask you to give me the evidence upon
which such charges and assertions depend. I have
not complained of Mr. Lincoln's alteration of his
policy, nor of the order revoking the call of the Vir
ginia Legislature. General Ord assigned to me, as
the cause of the change of the order, the change
which events had made in the condition of affairs.
The change was great [General Lee's surrender,
April 9, 1865], and Mr. Lincoln had contracted no
debt by any promise or declaration to me which for
bade a change in his policy. I held no commission
nor power to bind any one. . . . But I have a right
to be exempt from all unjust censure and from all
misrepresentation of my connection with these
events and from all unjust accusations."
One of these letters was written within a month,
and the other within four months, of the time that
the transaction occurred. It is only necessary to
refer to the history of the time, and the conditions
created by the struggle being carried on for suprem
acy by those members of Johnson's Cabinet and
their Congressional associates, to carry into effect
Lincoln's plans, and those who, with Sumner, Stan
ton, and Stevens, were determined to treat the
Southern States as "suicides" and "conquered
provinces," and their people as "traitors," to under
stand why Judge Campbell's family and friends did

THE PROBLEM OF RESTORATION 197
not think it "prudent" to permit the letters to be
delivered to those to whom they were addressed.
Judge Campbell's interpretation of Mr. Lincoln's
plan to secure peace and restore the Southern States
to their relation to the Union, in so far as it was
within the power of the Executive Department to
do so, is sustained by reference to the instructions
given by Mr. Lincoln to General Sherman at City
Point, March 27, 1865, in regard to the course which
he should pursue upon reaching Raleigh, North
Carolina, and the letters addressed by General Sher
man to Governor Vance, April 12, 1865. 1
Mr. Rhodes, referring to the incident, says that
"it has larger and more permanent interest" than
Judge Campbell's personal relation to it because of
"its bearings on the after history of the opposition
of the radical Republicans to any such mode of re
construction." 2
Judge Campbell in this letter says that Stanton
had some time prior to that date told Mrs. Campbell
that the cause of his arrest was his endorsement on
a letter from a man by the name of Alston to Mr.
Davis, in which Alston proposed to assassinate Mr.
Lmcoln and other Union leaders and requested an
interview for the purpose of unfolding his plan. Of
this incident Judge Campbell said: "In regular
course of the routine of the office I had referred it to
1 Z. B. Vance Papers, Collections of North Carolina Historical
Commission; Spencer: Last Ninety Days of the War in North Caro
lina, chap, xi, 145; McClure: Abraham Lincoln and Men of War-
Times, 221; Sherman's Memoirs; McCall, S. W.: Thaddeus Stevens,
American Statesmen Series, 239.
2 Rhodes: History of the United States, 134.

198 JOHN ARCHIBALD CAMPBELL
the Adjutant-General 'for attention,' it being his
duty to examine and dispose of letters between
parties. My own statement and that of General
Cooper, Adjutant-General, and four of his assist
ants, have been filed with my application for am
nesty, to show that this endorsement was no cause
whatever to subject me to death or bonds." His ar
rest was made at night, without any notice or means
to answer or explain.
On August 1, 1865, while Judge Campbell was
imprisoned at Fort Pulaski, without his knowledge
Judge Benjamin R. Curtis wrote from his home at
Pittsfield, Massachusetts, to President Johnson:
"I address you respecting Mr. John A. Campbell,
with whom I sat on the Bench of the Supreme Court,
and who is now a prisoner in Fort Pulaski. Though
my intercourse with Judge Campbell ceased with
my retirement from the Bench, I have retained a
strong regard for him, founded on his purity and
strength of character, his intellectual power, his
great attainments, and his humane and genial na
ture. . . . Judge Campbell, as you, I believe, know,
was not only clear of all connection with the con
spiracy to destroy the Government, but incurred
great odium in the South, especially in his own
State, by his opposition to it, and by his views of the
power and intention of the Government and the fal
lacy of the ideas upon which the attempted revolu
tion was based. I can conceive that reasons may
exist, apart from the merits of his own case, why he
should not receive a pardon at the present time, and
as that subject has recently been under your con-

THE PROBLEM OF RESTORATION 199
sideration, I desire to say nothing concerning it, but
I venture respectfully to ask your attention to the
question whether his release on parole, with such
limitations as you may think needful, would not
promote the public interest. From his former posi
tion, his opposition to counsels which have proven
so disastrous, his known devotion to the interests of
the Southern people, his ability and his weight of
character, he can undoubtedly exert an important
influence over Southern opinion; and if, as I am con
vinced, that influence will be used to promote the
pacification of the country, and the conciliation of
Southern opinion to the necessities of their condi
tion, and the just demands of the Union, it cannot
fail to be useful in an important degree. At present
his influence for good is paralyzed, and his imprison
ment is, in effect, a continual and conspicuous repre
sentation to the people of the South that he is hos
tile to the Government and desires to obstruct its
measures. I believe this is unjust to him and unfav
orable to the prevalence of those feelings and opin
ions which you desire to promote."
Judge Campbell, upon learning of this generous act
on the part of Judge Curtis, wrote him a letter, which
was published in the Century Magazine, October,
1889. 1 Judge Nelson also wrote to President Johnson.
Some time after the receipt of these letters, the
President, by an executive order, released Judge
Campbell from imprisonment. He resumed the
practice of his profession at New Orleans and never
again held public office.
1 Vol. xxxviii, No. 3, 950.

200 JOHN ARCHIBALD CAMPBELL
At this time he gave expression to his views re
garding the results of the war, its effect upon the
South, and his outlook for the future, saying: "I
concur in the policy of abolishing negro slavery
throughout the United States. I regard the revolu
tion as the most radical and momentous that has
ever occurred in any country. Much of the burden
will fall upon the people in the Confederate States
(so called). It changes the conditions as to nearly
all, as to future and temporal prosperity. It requires
for its success wisdom, prudence, patience, and pa
triotism. I venture to suggest that it also requires
profound quiet and sense of security. This change
in the conditions of men and of a country affords a
fruitful lesson to this generation and posterity, and
this lesson cannot be enforced by confiscations or
criminal prosecutions. It seems to me that the les
sons that Mr. Burke has taught in his speech on
'Reconciliation in America' and his tract on 'The
Policy of the Allies' will find an application to the
circumstances of this case. For myself, I can say
that, in the trying condition in which I have been
placed, I have endeavored to perform my duty. I
have not, at all times, satisfied myself. I have failed
in satisfying others. My friends in the beginning of
the war bestowed on me obloquy and reproach, and
violent men threatened contumacious treatment. I
was an alien among them. They have repented and
are now ready to hail me as their friend. I have en
dured reproach then and more latterly because I
was ready for reconstruction when others were for
war to the knife."

THE PROBLEM OF RESTORATION 201
Judge Campbell's property in Mobile, upon which
he depended for the support of his family, had been
destroyed. In these days of restored National unity
and general prosperity, it is difficult to understand
or estimate the burdens which in 1865 bore upon
men past middle life, broken in fortune, deprived of
the rights of citizenship, confronting a future filled
with uncertainty, or the depressing conditions un
der which they began the work of restoration and
rebuilding. It behooves the people of the South to
teach not only their own children, but also those of
the North and West, the hearts of whose fathers
were in those days filled with the pride of military
success and passion engendered by political and sec
tional controversies, of the courage, fortitude and
patience of the men of the South of 1865. But for
them, their courage, their steadfastness of purpose,
and their precept and example, the temporary suc
cess of those who sought to perpetuate the passions
of the Civil War and the domination of a sectional
party would have indefinitely postponed peace and
national unity. It is but justice to honor the mem
ory of those men. It is neither necessary nor relevant
to their vindication to enter into controversy re
garding the motives or wisdom of those who sought
to "drive them out of the country," and who in
sisted that they should "have no participation
whatever in the business of reorganization of the
States." Happily, in both North and South there
remained a remnant who saw their duty clearly and
had the moral and political courage to walk in the
light of a clearer vision and larger hope. They and

202 JOHN ARCHIBALD CAMPBELL
those who differed from them have passed away;
the record which they made constitutes the evidence
upon which the judgment of impartial history must
be rendered. The jury which time empanels will do
them justice, and from this verdict and judgment
those who hold in sacred keeping the fair name and
character of Judge Campbell will have no cause to
appeal. In the words of a wise, patient, and patriotic
man of the South of those days:
"It all seems clear enough to us now. We look
back along the way we have come, and we do not
now see how we could have gone any other way. But
we are forgetting how dark it was. Never, in all his
tory, did thicker darkness descend upon a people,
and so suddenly. A President had been slain; an
other, his successor, stood before us impeached, dis
trusted, and despised by those who had placed him
in office. Our State Governments were dismantled
and our States become military provinces. Our
leading citizens were in prison or their rights of citi
zenship denied them. Our emancipated slaves were
appealing to us, as never before, to care for them in
their new relation to us. Our wasted fields and
homes remained to us, only to remind us of our
former estate and our wretched poverty. The sol
diers of the blue and the gray looked into each
other's faces, aghast at the ruin they had wrought,
ready and willing to be friends, while the founda
tions of the Union shook beneath their feet with a
tremor more ominous than the shock of battle. One
false step, and the ruined South with blinded rage
might pull down the pillars of our Government in

THE PROBLEM OF RESTORATION 203
the very strength of its agony. We have called these
dark days our era of reconstruction. History will be
true if it shall write above this chapter, as its title,
the words of Thomas de Celano's hymn of the judg
ment, 'Dies irce, dies ilia.' . . .
"These men of the South differed in their politi
cal creeds as the billows, but in their sense of duty,
each to his own State, they were one as the sea. . . .
Their struggle has ended. Let us believe and be
thankful that in the providence of God it has ended
well and with honor and good to us all.
"And so, too, has ended our era of reconstruction.
We have rebuilt our Union, and we pray that, when
the rain descends, and the floods come, and the
winds blow and beat upon it, it may not fall, for it
is founded upon a rock. Slavery no longer mars our
structure." x
1 Mason, Thomas W. : The Value of Historical Memorials in a
Democratic State. Publications of the North Carolina Historical
Commission, Bulletin No. 7, pp. 85, 88.

CHAPTER VIII
THE SLAUGHTER-HOUSE CASES AND THE
FOURTEENTH AMENDMENT
An understanding of the conditions under which
Judge Campbell entered upon the last and most
fruitful years of his life requires a reference to the
situation with which he was confronted when re
leased from Fort Pulaski. As we have seen, his ef
forts to save from the fate which he saw impending
the people to whom, by birth, association, and the
most sacred ties of social and political relationship,
he was attached, met with failure, his conduct was
misrepresented, and his motives misconstrued, re
sulting in imprisonment. Bereft of such estate as he
had accumulated by his labor prior to the war, dis
franchised and in his professional labors restricted
to the State courts, the only resource left for pro
viding for his family, his moral courage and sense
of rectitude of purpose enabled him to await with
patience the coming of a brighter day and a larger
opportunity for service.
Justice McLean, upon learning that Justice Curtis
contemplated resigning, strongly urged him to re
main on the Bench, suggesting that he "would feel
a little awkward at the Bar." Since the departure
by the States from judicial Me tenure, many judges
have retired from the Bench and met with large
success, adding to their reputation and financial re
wards, at the Bar. It is, however, usually uncertain

THE FOURTEENTH AMENDMENT 205
whether judicial life and labor do not weaken the
taste and lessen the capacity for professional work,
especially in the trial of causes before courts and
juries. The condition under which Judge Campbell
retired from the Bench, and the future which ap
peared to confront him, were depressing and, at the
age which he had reached, discouraging.
Judge Curtis and Judge Campbell are the only
American lawyers who, after service on the Supreme
Court Bench of the United States, have returned to
the practice of their professions. Of them Mr. Car
son says: "It is a matter of satisfaction to record
that the influence of Curtis and Campbell upon the
Bench which they quitted was not lost, as in after
years no men appeared at the Bar whose arguments
made a profounder impression." 1 By those familiar
with their careers it was thought that they did the
best work of their professional lives after they re
turned to the Bar.
Mr. William A. Maury said of them: "It was a
great loss to the Supreme Court when Judge Camp
bell and Judge Curtis left it. They were, to some ex
tent, the complements of one another, somewhat as
Marshall and Story were, and, of course, no Court
could lose so much mental vigor and learning as
they represented, without feeling deeply the dep
rivation. It may be said that both these Judges did
the best work of their professional lives after they
returned to the Bar. This was certainly true of
Judge Campbell." 2
1 Carson, H. L. : History of the Supreme Court, 350.
2 Memorial Addresses — Justice Campbell, 8.

206 JOHN ARCHIBALD CAMPBELL
Judge Curtis's biographer has given a valuable
and interesting record of the professional labors of
his distinguished brother. The second volume of the
"Memoir" contains a collection of his professional
arguments and public addresses. From the "Opinion
Books," kept by Judge Curtis, are selected a num
ber of his "opinions" given to clients upon questions
of constitutional, corporation, and commercial law.
The author gives a list of the cases which he argued
subsequent to his resignation in the Supreme Courts
of Massachusetts and of the United States, and the
questions presented. Unfortunately, Judge Camp
bell left no record of his professional labors other
than several volumes of briefs and arguments. From
these we are enabled to form an estimate of the
character and extent of his work during the last
twenty years of his life.
Seeing in the city of New Orleans a larger oppor
tunity for success than in Mobile, in the discharge
of the duties which he owed to those dependent
upon him during the last days of 1865, he made his
home there. By reason of its commercial impor
tance, the changes of its social, industrial, and com
mercial life, wrought by the war and its results, and
the certainty of its growth and development, New
Orleans offered, perhaps, the most attractive field
for the practice of law in the South. Many questions
novel in character, important in respect to the
interests involved, and difficult of solution, were
sure to arise in the readjustment following the Civil
War. Judge Campbell was warmly welcomed and

THE FOURTEENTH AMENDMENT 207
promptly took his position among those in the front
ranks of the profession. Mr. Carleton Hunt, of the
New Orleans Bar, says of Judge Campbell's career:
"Coming to the practice of the Bar of New Orleans,
he threw himself into the contests in which he be
came engaged, with a degree of intensity which it is
difficult to express. He became absorbed in his pro-.
fessional undertakings. He would sit for hours in his
great library lost in thought, without turning the
leaves of the volume before him. At other times,
he would walk in the streets gesticulating, as he
went, to the surprise of all who passed him. He
spoke in Court customarily from the many books
spread out before him. His language seemed to be
borrowed from the books and was apt to be techni
cal and quaint, as the authorities themselves. His
style, for the most part, was measured and grave, as
became his years and standing at the Bar. From
time to time, however, as he caught fire from the
concussion of debate, he became inflamed and fierce
in his assaults upon his adversary's side. There were
occasions, seldom coming, but full of excitement as
they arrived, when his utterances were filled with a
degree of eloquence, which aroused in those who
knew him like feelings and passions with those with
whom the speaker contended."
He formed a partnership with Judge Henry M.
Spofford, formerly of the Supreme Court of Louisi
ana, and his son, Duncan G. Campbell. The firm
immediately entered upon a large practice. Judge
Campbell, by reason of his long experience at the
Bar prior to the war, and the reputation which he

208 JOHN ARCHIBALD CAMPBELL
had made on the Bench, was retained in many novel
and interesting cases. It was not until after the de
cision in Ex parte Garland x that Southern lawyers
were permitted to practice in the Federal Courts.
The first appearance which he had in the Supreme
Court of the United States was Waring vs. The
Mayor,2 and associated cases, on writs of error from
the Supreme Court of Alabama. The cases involved
the validity of a tax levied by the State and the city
upon merchandise brought into the city of Mobile
from other States and from foreign countries; sev
eral interesting questions presenting the much-de
bated right of the State to tax imports. The Court
held, Justice Nelson dissenting, that the laws were
valid. In the "Tonnage cases" 3 he successfully at
tacked the statute of Alabama, levying a tonnage
tax on steamboats and vessels navigating the rivers
of the State, as violating the constitutional provi
sions prohibiting any State from laying any duty of
tonnage. Judge Campbell did not appear in other cases of
unusual public interest in the Supreme Court until
the December Term, 1872, when he argued the
famous Slaughter-House cases, presenting, for the
first time, the construction of the Fourteenth
Amendment. The cases presented several interest
ing questions, and the argument and decision have
had a permanent and far-reaching influence upon
the National jurisprudence. They were submitted
to the Court upon the following facts:
1 4 Wall. 333 (December Term, 1866).
2 8 Wall. 110. » 12 Wall. 204.

THE FOURTEENTH AMENDMENT 209
"The legislature of Louisiana, during the year
1869, enacted a statute entitled: 'An Act to Protect
the Health of the City of New Orleans, to Locate
Stock-Landings and Slaughter-Houses,' incorporat
ing the Crescent City Live-Stock and Slaughter-
House Company." The charter conferred upon the
corporation, composed of seventeen persons, for
twenty-five years the exclusive right to establish
and maintain within the city and parish of New Or
leans and the parishes of Jefferson and St. Bernard,
comprising 1154 square miles, containing more than
three hundred thousand persons, stock-landings,
yards, wharves, stables, slaughter-houses, abattoirs,
and other buildings for landing and keeping horses,
mules, and other animals for sale and for slaughter
ing, charging therefor such fees as were fixed by the
charter. All other persons living within the city of
New Orleans and parishes named, were prohibited,
under heavy penalties, from landing, keeping, or
slaughtering any animals at any other places than
those established by the corporation. More than one
thousand persons within the district were engaged
in buying and selling stock, animals, and cattle, and
more than three hundred were engaged in slaugh
tering for market and selling animals and cattle.
The latter had organized the "Benevolent Butch
ers' Association."
The Attorney-General of Louisiana, in behalf of
the State, filed a bill in the State Court for the pur
pose of enjoining the defendants, engaged in the
business of slaughtering animals for market, from
prosecuting their business within the prohibited

210 JOHN ARCHIBALD CAMPBELL
territory or doing any other acts prohibited by the
statute. The Benevolent Butchers' Association also
filed a bill to enjoin the Crescent City Live-Stock
Association from enforcing the provisions of the
statute. For the corporation, the case was argued in the
State Supreme Court by Randell Hunt, Professor of
Civil Law in the State University, William H. Hunt,
later Secretary of the Navy and Judge of the Inter
national Court of Egypt, and Christian Roselius,
the leader of the Civil Law Bar of Louisiana, and
the Attorney-General of the State. For the Butch
ers' Association and other parties, the case was
argued by Fellows & Mills, Cotton & Levy, Camp
bell, Spofford & Campbell, and Edward Bermudez,
later Chief Justice of Louisiana. The State Supreme
Court sustained the statute and rendered a decree
for the corporation, Ludeling, Chief Justice, writing
the opinion, to which Justice Wyly dissented.1
In a suit involving the same question Justice
Bradley, sitting in the Circuit Court, enjoined the
enforcement of the prohibitory provisions of the
statute.2 Upon appeal to the United States Supreme
Court the causes were argued by Mr. J. Q. A. Fel
lows and Judge Campbell for appellants and by
Jeremiah S. Black and Matthew H. Carpenter for
appellee. The cases were twice argued. On the first hearing,
Judge Nelson was unable to be present, and as the
Court was divided, a reargument before a full bench
was ordered. In view of the division of the Court in
1 22 La. Ann. 546. * 1 Woods, 51; 15 Fed. Cases, 8408.

THE FOURTEENTH AMENDMENT 211
the final disposition of the case, it is probable that
the Justices were, upon the first hearing, evenly
divided.1 Judge Campbell's argument has been preserved.
He rested it upon three propositions: That the Lou
isiana statute created a monopoly; that it imposed
servitudes upon the people of the district, and that
it unlawfully restricted the use of their property, in
violation of the Thirteenth Amendment; that it de
prived the citizens of the United States, residing
within the district, of their rights, privileges, and
immunities, thereby violating the provisions of the
Fourteenth Amendment.
He thus states the case, as presented by the rec
ord: "A large body of persons, hundreds in number,
had been conducting a lawful business in a lawful
way, for many years : they had invested capital and
labor, and had acquired skill, in this useful business,
for their own benefit, the subsistence of their fami
lies, and the welfare of the community. By a legisla
tive act these buildings and other constructions for
the purpose were closed. They were deprived of
power to erect other buildings, or to employ their
capital, skill, and labor, with freedom. Seventeen
designated persons were vested by the Legislature
with the sole and exclusive power to conduct and
carry on this business. ... All persons must work
in these abattoirs or not at all, in the vocation of
preparing meat for market. The corporation re
ceives a price determined in its charter. In a word, a
great monopoly of trade which has always existed
1 Slaughter-House Cases, 16 Wall. 36.

212 JOHN ARCHIBALD CAMPBELL
has been granted to seventeen favored adventurers.
. . . That this was done for the private gain of
these seventeen is shown by the fact that whatever
has been seized and obstructed from the members
of these associations and these tradesmen has been
granted to this company of seventeen."
Judge Campbell conceded the power of the Legis
lature, in the exercise of the police power, to enact
reasonable rules prescribing the places and condi
tions under which stockyards and slaughter-houses
should be established and maintained. The Federal
questions were presented by the contention that
the statute violated the provisions of the Thir
teenth and Fourteenth Amendments. The question
whether the exclusive privileges granted to the
Crescent City Slaughter-House Company by the
charter created a monopoly was involved in, and
relevant to, the solution of the Federal questions.
While his principal and, as he thought, strongest
contention applied to the Fourteenth Amendment,
his argument upon the other phase of the case is in
teresting and forceful. Beginning with an examina
tion of the origin and history of the clause in the
Ordinance of 1787 for the Government of the North
West Territory, providing that there should be,
in the Territory, neither "slavery nor involuntary
servitude otherwise than for the punishment of
crime," the traces the history of the incorporation of
this language into the Thirteenth Amendment. He
says that, although no clause has been the occasion
of so much discussion, he has not been able to find
any definition of the language. He proceeds to an

THE FOURTEENTH AMENDMENT 213
examination of the various kinds and characters of
personal slavery in ancient and modern times,
reaching the conclusion that the terms "slavery"
and "servitude" are not synonymous; that the lat
ter includes a status or burden upon persons and
property, differing from the former. By the charter
of the Crescent City Live-Stock Company every
man within the three parishes was required, if he
exercised the trade of preparing animal food for the
market, to do it in the houses of the company and
not elsewhere. Every man, if he had a horse, mule,
or other animal for sale, and brought them within
these parishes, must carry them to the landing-
places, yards, stables, or pens of the company.
These were personal acts which the owners must
perform. The act, he insists, imposes a personal
servitude. Referring to the burdens imposed by the act upon
property within the parishes, he says: "It strikes
with incapacity every parcel of land within these
parishes for a particular work, except a certain por
tion which may be used by that corporation. It does
not set apart a particular district of land for the pur
pose of the erection or support of slaughter-houses,
but it strikes with incapacity every property for
that purpose which is not owned by the company."
He pressed upon the attention of the Court the
decision of the French Court, that the decree of
Louis XVI, of 1779, suppressing banalites, abolished
"servitudes" whereby the tenant was required to
carry his wheat to the mill of the seignior. The de
cree declared "that all rights of banalites of the oven,

214 JOHN ARCHIBALD CAMPBELL
mill, wine-press, slaughter-house, forge, and the
like, whether founded on custom, prescription, or
judicial sentence, should be abolished without in
demnity." He also stresses the English Statute of
1799 abolishing thirlage. After a thorough discus
sion of the meaning of the term "servitude," as used
in English and Continental law, he cites American
State decisions to sustain his contention. Conclud
ing this branch of argument, he says: "If the Legis
lature can barter away to a corporation exclusive
privileges and strike the land with disabilities, the
land will soon become a desolation and a waste."
When Judge Campbell reaches the discussion of
the Fourteenth Amendment, he strikes a stronger
note and speaks with a larger degree of confidence,
saying: "The Fourteenth Amendment embodies all
that the statesmanship of the country has ordained
for accommodating the Constitution and the insti
tutions of the country to the vast additions of terri
tory, increase of the population, multiplication of
States and territorial governments, the annual in
flux of aliens, and the mighty changes produced by
revolutionary events and by social, industrial, and
commercial development." With this broad basis
for his argument, he observes that "whether the
Amendment will be esteemed a full and proper solu
tion of the important problems presented, it is ap
parent that, by the first clause, the National princi
ple has been indefinitely enlarged. The tie between
the United States and every citizen in every part of
its jurisdiction has been made intimate and to the
same extent the Confederate features of the Govern-

THE FOURTEENTH AMENDMENT 215
ment have been obliterated. The States, with their
connection with the citizen, are placed under the
oversight and enforcing hand of Congress. The pur
pose is manifest to establish, through the whole
jurisdiction of the United States, one people, and
that every member of the Empire shall understand
and appreciate the constitutional fact that his privi
leges and immunities cannot be abridged by State
authority. . . . Unquestionably a very large share
of blessings are stored and garnered here as in a
common repository. Here is the hope of the laboring
man; the confidence and trust of the merchant; the
stability, success, and profit of the agriculturist; the
leisure and inspiration of the student, and the peace,
the comfort, the enjoyment of the family and the
home." He assumes that "the Fourteenth Amend
ment was not adopted as an act of hostility, nor de
signed to sow discord; nor to answer an ephemeral
or unworthy purpose. Those who deprive the first
clause of its vitality, and demand an interpretation
which would leave the State Governments in posses
sion of their powers over persons and property un
impaired, place a stigma upon the authors of the
article. The remaining parts had been, for the most
part, executed. They had not produced wholesome
results. The first section remained. The command of
the section to the State Governments to maintain
prescribed bounds, and to Congress to enforce
obedience to the command, is imperative. The ex
cesses apprehended were invasions of the personal
rights of individuals under color of authority. Two
forms of invasion were apprehended. The States

216 JOHN ARCHIBALD CAMPBELL
might deny individual rights and liberties, and claim
to perform all of the offices and duties of society
under the names of socialism, communism, and
other specious pretenses, control all the revenues
and labors of the State, or the advantages, benefits,
partialities, privileges of the State might be con
ferred upon a few to the detriment and oppression
of the people."
Campbell called attention to the fact that the
corporation had, since the institution of the suit,
purchased the property of one of the defendants,
"and are using it for the very purpose for which the
defendants are prohibited from acquiring or using
it, by this decree." He conceded the right of the
State to grant its public lands, establish public fer
ries, and appropriate its public revenues, because
these rights were vested in the State for such pur
poses, but insisted that " the rights of a man, in his
person, to the employment of his faculties and to the
product of those faculties, do not come to him by
any concession of the State, nor can he be deprived
of them by any law of the State. They are his invio
lable prerogative." He drew a distinction between
the right of the State to prohibit a person, in the use
of these natural rights, to create a nuisance, con
taminate the atmosphere, pollute the water, or sell
putrid food, and the power, asserted by the statute,
"to banish from three parishes an important and
necessary occupation which prevails in every com
munity, an edict which inflicts injury upon hun
dreds of individuals in their property and their
business, and confers upon the corporation the ex-

THE FOURTEENTH AMENDMENT 217
elusive right to the enjoyment of the liberties of
which the people are deprived. That no considera
tion of public health required that what was denied
to all should, under an exception, be allowed, as a
favor to seventeen persons. . . . Can there be any
centralization more complete, or any despotism less
responsible, than that of a State Legislature con
cerning itself with dominating the avocations, pur
suits, and modes of labor of the population; confer
ring monopolies on some, voting subsidies to others,
restraining the freedom and independence of others,
and making merchandise of the whole?"
Contending that the statute created a monopoly,
and imposed unjust and unequal burdens upon per
sons and property, he asks: "If an ordinance be un
reasonable, if it be unequal, if it be unjust because
of its inequality, does it not fall within the exact let
ter of the Fourteenth Amendment?" This inquiry
suggests the larger one upon which depended the ex
tent to which the Amendment had restricted the
power of the States and enlarged the power of the
National Government.
After an examination of what he insisted were
the natural rights, the privileges, and immunities of
every American citizen, he quoted the language of
the Amendment, saying: "If the right of a man to
choose and prosecute a lawful industry reaches to
the rank of a personal privilege, and his hopes and
expectations either of happiness or of profit shall be
classed as property, then the Fourteenth Amend
ment to the Constitution stamps with nullity
the act of the Legislature of Louisiana. . . . This

218 JOHN ARCHIBALD CAMPBELL
Amendment takes the child at the moment of his
appearance in the world and proclaims to the world
'he is our citizen'; he is endowed, from the very
moment of his birth upon our soil, with privileges
and immunities that no State shall make or en
force a law to abridge." He repeated and empha
sized his contention that the Fourteenth Amend
ment worked a radical change in the relation which
every citizen of the National Government bore to
that Government. By its first clause fixing the status
of citizenship every person born within the jurisdic
tion of the United States derives his state and condi
tion from its authority. It says to the State, "that
this citizen of ours must not be disturbed in his
privileges and immunities, or in his life, liberty, or
property, brings the Government into immediate
contact with every person, and gives to every citi
zen a claim upon its protecting power."
In conclusion he insisted that the American peo
ple had, by their Constitutions, secured freedom:
"free action, free enterprise, free competition. It
was in freedom they expected to find the best of
auspices for every kind of human success. They be
lieved that equal justice, the impartial rewards
which encourage to effort in this land, would pro
duce great and glorious results. They made no pro
visions for sinecures, pensions, monopolies, titles of
nobility, privileges, orders, exempting from legal
duty. What they did provide for was that there
should be no oppression, no pitiful exaction by petty
tyranny, no spoliation of private right by public
authority, no yoke fixed on the neck for work to

THE FOURTEENTH AMENDMENT 219
gorge the cupidity and avarice of unprincipled offi
cials, no sale of justice nor of right, and there should
be a fair, honest, faithful government to maintain
what were the unchartered prerogatives of every
individual man and now the constitutional, inviola
ble rights of an American citizen."
The extent and variety of authority, judicial and
historical, which Campbell brought to the support
of his argument fully sustains Mr. Maury in saying:
"He seemed to have levied a contribution on the
literature and learning of the world to show the in
tolerance of the common law of monopolies, and to
furnish authentic examples of the almost infinite de
vices by which the strong have in all countries and
in all ages managed to destroy or curtail the right of
every individual to exercise his faculties in any way
that might seem good in his own eyes, saving of
course the rights of others." Justice Miller said:
"The eminent and learned counsel who twice ar
gued the negative of this question [against the mo
nopoly] has displayed a research into the history of
monopolies in England and the European Conti
nent, equaled only by the eloquence by which they
are denounced."
Whatever may be thought of the application of
the principles which Campbell made to the case be
fore the Court, there can be no question of their
truth, the force with which he stated and the power
ful array of learning with which he supported them.
Again quoting Mr. Maury: "It is but to look at al
most any page of the opinion of any of the Judges
who spoke on that occasion, to see what a profound

220 JOHN ARCHIBALD CAMPBELL
impression was made by the great advocate battling
against the stupendous monopoly that had grasped
the insidious power to compel every man within a
large area of country who had a beast to slaughter
for food to come to its slaughter-house to do his
butchering. . . . When we look at the reach and ex
tent of the research and learning displayed by Judge
Campbell in that case, it may well be asked if ever
that great Court in all of its history had witnessed
at its bar, in any previous case, more if so much
learning." It is a source of regret that the arguments of
Campbell's great antagonists in this battle of giants,
Jeremiah S. Black and Matthew H. Carpenter, are
not preserved.
The Fourteenth Amendment was proposed to the
States on January 14, 1866, and, on July 21, 1868,
was declared to have been ratified by a sufficient
number of States and thereby became a part of the
Constitution. It had its origin and principal support
in the controversy which arose subsequent to the
emancipation of the negroes, and, as shown by the
debates in Congress and the State Legislatures, was
intended to bring the newly enfranchised slaves
within the protection of Congress. Although it had
been a part of the Constitution since 1868, no case
involving the rights of a colored person had found
its way to the Supreme Court. The Slaughter-House
cases came on for final decision at the December
Term, 1872.
Justice Miller, writing the opmion of the Court,
after deciding that the statute was within the police

THE FOURTEENTH AMENDMENT 221
power of the State, and stating the Federal question
raised upon the record, says that the Court is, for
the first time, called upon to give construction to
the two Amendments, continuing:
"We do not conceal from ourselves the great re
sponsibility which this duty devolves on us. No
questions, so far-reaching and pervading in their
consequences, so profoundly interesting to the peo
ple of this country, and so important in their bearing
upon the relations of the United States and of the
several States to each other and to the citizens of
the United States, have been before this Court dur
ing the official life of any of its members."
He disposed of the attack upon the statute,
based upon the Thirteenth Amendment, in a few
lines. Proceeding to the discussion of the Fourteenth
Amendment, he laid the basis of his attack upon
Judge Campbell's argument by limiting the mean
ing of the term "citizen of the United States," as
used in the first clause. It is interesting to note that
Justice Miller follows the line of thought resorted
to by Chief Justice Taney in the Dred Scott case.
He adopted the historical method for interpreting
the sense in which the language was used by the
framers of the Amendment, and concluded that he
found, by reference to the history of the time, that
the pervading purpose lying at the foundation of the
Thirteenth and Fourteenth Amendments was to se
cure the firm establishment of the freedom of the
negro from the oppressions of those who had for
merly exercised dominion over him. While he con-

222 JOHN ARCHIBALD CAMPBELL
ceded that probably others may seek protection
under the provisions of the Amendments, this pur
pose must have fair and just weight in any question
of their construction. While this rule, resorted to for
aiding in the construction of statutes and constitu
tions, is useful and helpful, it is restrictive in its in
fluence upon the mind of the judge. It invites him to
approach the construction of the language used by
those who framed the Constitution, from a back
ward rather than a forward view. As in the Dred
Scott case, Chief Justice Taney, putting himself in
the position of the statesmen of 1789, reached the
conclusion that they intended to include in the
term "citizen," used in the Constitution, only per
sons of the white race, so Justice Miller, in defining
the words "citizens of the United States," by the
same mental process, found that those who framed
the Fourteenth Amendment had in mind only ne
groes, and that "their main purpose was to estab
lish the citizenship of the negro, can admit of no
doubt." Judge Campbell, on the contrary, took a larger
view of their purpose and caught a larger vision of
the scope of its accomplishment. To his mind every
person then within the jurisdiction of the United
States and every child born, or person naturalized,
was Mted, as it were, into the status of National
citizenship, with the power of the National Govern
ment pledged to the protection of his rights, privi
leges, and immunities, and every State prohibited
from making or enforcing any law abridging such
rights and privileges. The singular spectacle is pre-

THE FOURTEENTH AMENDMENT 223
sented of the States Rights, Southern Democratic
lawyer urging the broadest, largest National view
and the Northern-Nationalist Republican Judge
enforcing a much narrower application of the lan
guage, in ascertaining the intention of those who
framed the Amendment.
Justice Miller, having thus laid the basis upon
which to support his conclusion, says: "The next
observation is more important, in view of the argu
ments of counsel in the present case. It is, that the
distinction between citizenship of the United States
and citizenship of a State is clearly recognized and
established. Not only may a man be a citizen of a
State, but an important element is necessary to con
vert the former into the latter. He must reside
within the State to be a citizen of it, but it is only
necessary that he should be born or naturalized in
the United States to be a citizen of the Union."
Here again, the minds of Judge Campbell and Jus
tice Miller diverge. Justice Miller first finds in the
Amendment the creation of a dual citizenship.
Judge Campbell finds that, as there is but a single
source of citizenship, so the rights, privileges, and
immunities of such citizenship inhere in, and pro
ceed from, this National citizenship, and these the
State may not abridge. Justice Miller concludes
that, as the Amendment creates a dual citizenship,
so there is a corresponding duality of rights, privi
leges, and immunities. One class of rights and privi
leges is his by virtue of his national citizenship, and
for the protection of these he may rely upon the
Fourteenth Amendment. Other rights, privileges,

224 JOHN ARCHIBALD CAMPBELL
and immunities are his by virtue of his State citizen
ship, and for these he must look to the State. With
these propositions established by the majority of
the Court, not only was the foundation of Judge
Campbell's argument destroyed, but a construction
of the Fourteenth Amendment was incorporated
into the National jurisprudence which essentially
weakened and narrowed its scope, and disappointed
the purpose of those who framed and secured its
adoption. With this distinction established, the sole
question remaining for the Court was to declare in
which class fell the rights, privileges, and immuni
ties alleged to have been abridged by the act. Jus
tice Miller adopts the classification announced by
Justice Washington, in Corfield vs. Coryell,1 and
holds that those rights, asserted by Judge Campbell
to have been abridged by the statute, do not come
within the class which attach to Federal citizen
ship, secured by the Amendment from abridgment
by the State.
Justices Field, Bradley, and Swayne filed opin
ions, in which Chief Justice Chase concurred, dis
senting from each and every one of Judge Miller's
propositions and conclusions. After stating the
status of American citizenship, prior to the adop
tion of the Fourteenth Amendment, Justice Field,
adopting Judge Campbell's view, says: "The first
clause of the Fourteenth Amendment changes this
whole subject, and removes it from the region of
discussion and doubt. It recognizes in express terms,
if it does not create, citizens of the United States,
1 4 Washington, Circuit Court, 371.

THE FOURTEENTH AMENDMENT 225
and it makes their citizenship dependent upon their
place of birth or the fact of their adoption, and not
upon the constitution or laws of any State, or the
condition of their ancestry. A citizen of a State is
now only a citizen of the United States residing in
that State. The fundamental rights, privileges, and
immunities which belong to him as a free man and a
free citizen, now belong to him as a citizen of the
United States and are not dependent upon his citi
zenship of any State. . . . They do not derive their
existence from its legislation and cannot be de
stroyed by its power. The Amendment does not at
tempt to confer any new privileges or immunities
upon citizens or to enumerate those already exist
ing." He further says that if the Amendment has no
other effect and protects against State abridgment
no other rights, privileges, and immunities than
enumerated in the opinion of the majority, "it was
a vain and idle enactment which accomplished noth
ing and most unnecessarily excited Congress and
the people on its passage."
Justice Field also follows Judge Campbell's argu
ment in regard to the effect of the monopolistic
features of the statute upon the privileges and im
munities of the citizens of the United States resid
ing in the territorial district to which they applied,
saying: "All monopolies, in any known trade or
manufacture, are an invasion of these privileges, for
they encroach upon the liberty of citizens to acquire
property and pursue happiness and were held void
at common law in the great case of Monopolies, de
cided during the reign of Queen Elizabeth." After

226 JOHN ARCHIBALD CAMPBELL
pointing out the restrictive effect of the provisions
of the act upon the rights of the people affected by
it, he concludes: "It is to me a matter of profound
regret that its validity is recognized by a majority
of this Court, for by it the right of free labor, one of
the most sacred and imprescriptible rights of man,
is violated."Justice Bradley thus states his agreement with
Judge Campbell upon the question of National citi
zenship as defined by the Amendment, which he re
gards as one of vast importance, lying at the very
foundation of the Government: "The question is
now settled by the Fourteenth Amendment itself
that citizenship of the United States is the primary
citizenship of this country and that State citizen
ship is secondary and derivative, depending upon
citizenship of the United States and the citizen's
place of residence. . . . Every citizen, then, being
primarily a citizen of the State where he resides,
what in general are the privileges and immunities of
a citizen of the United States? Is the right, liberty,
or privilege of choosing any lawful employment one
of them? . . . This seems to me the essential ques
tion before us for consideration. And, in my judg
ment, the right of any citizen to follow whatever
lawful employment he chooses to adopt (submitting
himself to all lawful regulations) is one of his most
valuable rights and one which the Legislature of a
State cannot invade, whether restrained by its Con
stitution or not." After an exhaustive discussion he
says: "In my view, a law which prohibits a large
class of citizens from adopting a lawful employ-

THE FOURTEENTH AMENDMENT 227
ment, or from following a lawful employment pre
viously adopted, does deprive them of liberty as
well as property, without due process of law. Their
right of choice is a portion of their liberty; their
occupation is their property." Answering Justice
Miller's statement that the principal purpose of the
Amendment was the protection of the rights of the
negro, and confining it to cases in which his rights
were abridged by State legislation, he says that "the
Amendment was an attempt to give voice to the
strong National yearning for that time and that
condition of things, in which American citizenship
should be a sure guaranty of safety, and in which
every citizen of the United States might stand erect
on every portion of its soil in the full enjoyment of
every right and privilege belonging to a freeman,
without fear or molestation . ' ' Justice Swayne ' ' adopts
the views" of Justice Field and Justice Bradley and
submits others in support of them. Chief Justice
Chase, "although he felt a great interest in the cases,
[was] not able to prepare a dissenting opinion." x
The monopoly did not survive the period allotted
to it by its charter. Upon the downfall of the recon
struction regime and the restoration to the people
of the State of the right of self-government, a new
Constitution was adopted giving to the municipal
authorities power to provide for the public welfare
without creating monopolies, and enabling them to
restore to the people the rights, privileges, and im
munities of which they had been deprived. An ordi
nance was enacted by the City Governing Board,
1 Hart, A. B. : Salmon P. Chase, American Statesmen Series, 414.

228 JOHN ARCHIBALD CAMPBELL
restoring to the people the right to engage in busi
ness by complying with its rules and regulations.
The Crescent City Slaughter-House Company re
sisted the enforcement of the ordinance, relying for
the protection of its monopoly upon the contract
clause of the Constitution as construed in the Dart
mouth College case.1 The District Court sustained
its contention, but, upon appeal, the Supreme Court
reversed the judgment, Justice Miller, again writing
the opinion, resting the conclusion upon the princi
ple that the Legislature could not, by any contract,
limit the power of a succeeding Legislature to pro
vide for the safety of the public health and public
morals. The learned Justice adhered to the decision
in the Slaughter-House cases, that the charter did
not create a monopoly or abridge the rights of citi
zens of the United States. This aroused the opposi
tion of Justices Field and Bradley, who wrote vigor
ous opinions in which they were joined by Justice
Harlan, who had succeeded Justice Davis, and Jus
tice Woods, who had succeeded Justice Strong, both
of whom concurred in the majority opinion in the
Slaughter-House cases. Justices Field and Bradley
did not confine themselves to a restatement of their
opinions that the charter created a monopoly, but
again, and in stronger language, declared their ad
herence to the construction of the first clause of the
Fourteenth Amendment for which they contended
in the original case. It is interesting to note by what
a narrow margin of judicial opinion the construction
of the first clause of the Amendment became fixed
1 4 Wheaton, 518.

THE FOURTEENTH AMENDMENT 229
in the jurisprudence of the country, notwithstand
ing the criticism which it encountered. If Justice
Harlan instead of Justice Davis had sat, the deci
sion would have been with Judge Campbell. The
same is true as to Justices Woods and Strong.1
Whatever may be thought of the conclusion
reached by the majority of the Justices in the
Slaughter-House cases, there can be no doubt that
it was disappointing to those who framed and se
cured the adoption of the Fourteenth Amendment.
Senator Boutwell, who had been a member of the
Committee on Reconstruction which framed the
Amendment, said that the Court had "erred in
holding that there were two classes of rights — Na
tional and State"; and Senator Howe declared that
"the American people would say, as they had said
about the Dred Scott decision, that it was not law
and could not be law." 2
Mr. Blaine says that, by the decision, "the
Amendment has been deprived, in part, of the
power which Congress intended to impart to it." 3
Mr. William D. Guthrie thinks that the opinion de
livered on behalf of the majority of the Court went
beyond what was required for the decision of the
cases, "and expressed a very narrow view of the
scope of the Amendment; that the broader views
contained in the dissenting opinions embodied a
much truer statement of its purpose and scope." 4
1 111 U.S. 746; Butchers' Union Co. vs. Crescent City, 60.
2 Flack, H. E.: The Adoption of the Fourteenth Amendment, 266,
269. 3 Twenty Years of Congress, n, 419.
4 The Fourteenth Amendment, 20.

230 JOHN ARCHIBALD CAMPBELL
Professor John W. Burgess very much more
strongly criticizes the decision and expresses "per
fect confidence that it will be overturned." 2 Re
ferring to this and the Cruikshank Case,2 Mr.
Charles W. Collins says that they "marked the
practical overthrow of the Congressional idea of the
Fourteenth Amendment within seven years after
its victorious adoption.3
Mr. J. Randolph Tucker, in his argument in
Spies vs. Illinois,4 expressed with approval the view
urged by Judge Campbell, as did Mr. John G. John
son and his associates in Twining vs. New Jersey,6
wherein they insisted that the construction of the
first clause is "still an open question." Professor
Charles A. Beard is correct in saying that "there is
plenty of evidence to show that those who framed
the Fourteenth Amendment and pushed it through
Congress had in mind a far wider purpose than that
of providing a general restraining clause for State
Legislatures." 6 It is probable that Justice Moody,
in Twining vs. New Jersey, correctly stated the
effect of the opinion of Justice Miller upon the
construction of the Amendment, and if not the
controlling, at least, the persuasive reason for its
adoption. Justice Moody says:
"There can be no doubt, so far as the decision in
the Slaughter-House cases has determined the ques
tion, that the civil rights sometime described as
1 Political Science and Comparative Constitutional Law, I, 225.
2 92 U.S. 542.
3 The Fourteenth Amendment and the States, 22.
1 124 U.S. 131 (150). « 211 U.S. 78.
e Contemporary American History, 55.

THE FOURTEENTH AMENDMENT 231
fundamental and inalienable, which before the war
amendments were enjoyed by State citizenship and
protected by State Governments, were left un
touched by this clause of the Fourteenth Amend
ment. Criticism of this case has never entirely
ceased, nor has it ever received universal assent by
members of this Court. Undoubtedly, it gave much
less effect to the Fourteenth Amendment than some
of the public men active in framing it intended and
disappointed many others.
"On the other hand, if the views of the minority
had prevailed, it is easy to see how far the authority
and independence of the States would have been
diminished by subjecting all their legislative acts to
correction by the legislative, and review by the judi
cial, branch of the National Government. . . . This
part, at least, of the Slaughter-House cases has
been steadily adhered to by this Court. . . . The
distinction between National and State citizenship
and their respective privileges there drawn has
come to be firmly established."
While, as said by Judge Campbell, indulging in
the retrospection of retirement, "it was probably
best for the country that the case so turned out,"
it is difficult to suppress the thought that the major
ity of the Court were, to some extent, and perhaps
unconsciously, affected by the fact that, although
intended to secure the citizenship of the newly en
franchised negro and immunity from abridgment of
his civil rights by those who had lately held him in
slavery, the language was sufficiently comprehen
sive, unless restricted, to "find that no such results

232 JOHN ARCHIBALD CAMPBELL
were intended by Congress which proposed the
Amendment, nor by the Legislatures of the States
which ratified it."
Justice Miller overlooked, or laid aside, the fact
that, when the Amendment was framed and pressed
to ratification, the majority in Congress and in the
dominant sections of the country were determined
to bring about that result, at least as to the South
ern States, which they then regarded, and intended
to hold, as "conquered provinces." When, however,
the Amendment was brought before the Court by
those invoking an application, entirely different
from what was anticipated, they realized that the
language of the Amendment to the Constitution
was capable of being given more permanent and
larger application than its authors intended. The
pendulum had begun to swing backward, and the
integrity of local self-government was resuming its
former importance. Justice Miller regarded his
opinion in the case as a valuable contribution to the
preservation of the constitutional relation of the
States to the Federal Government, and correctly so.1
Senator Conkling later insisted that it was within
the purpose of the Committee which framed the
Amendment to include others than negroes. Refer
ring to some of the undesirable, if not unexpected,
results of adopting the National theory of citizen
ship, Justice Miller says that, while the arguments
drawn from the consequences urged against the
adoption of a particular construction of a statute or
1 Stern, Horace: Great American Lawyers, vi, 541; Justice Miller:
Address, Centennial, University of Michigan (1887), 118.

THE FOURTEENTH AMENDMENT 233
constitution is not always conclusive, in this in
stance such consequences are so serious and so far-
reaching that the argument has an irresistible force.
Fortunately those who differed from his conclusion
found nothing in the political or sectional attitude
of the Justices upon which to base their criticism,
other than an honest difference of opinion. Justice
Miller and Justice Bradley represented the most
pronounced nationalistic school of thought, whereas
Justice Chase and Justice Field were of the moder
ate State-Rights school.1 Justice Clifford, who went
with the majority, was a Democrat, while the others
were Republicans and Justice Swayne, who went
with the minority, was a Republican. The South,
supposed to be most directly interested in the ques
tion involved, had no representative on the Court.
Justice Miller's prophecy that no action of a State,
not directed by way of discrimination against the
negroes as a class, would be held to come within the
purview of the Amendment, has not been realized.
Mr. Collins, with much industry, has collated the
cases which, up to 1912, had been before the Court
involving the construction of the Fourteenth
Amendment, finding that of more than six hundred,
only twenty-eight involved racial rights of the
negro.2 A study of the cases found in the Supreme Court
Reports tends to sustain the suggestion of a law-
1 Stern: Great American Lawyers, vi, 541; Pomeroy, ibid, vii,
1; ibid. 53; Hart: Salmon P. Chase, American Statesmen Series,
67. 2 Collins, C. W.: The Fourteenth Amendment and the States, 139;
Bailey vs. Alabama, 219 U.S. 219.

234 JOHN ARCHIBALD CAMPBELL
yer, made in the argument of a case before the
Supreme Court of North Carolina, referring to the
Fourteenth Amendment, that it was made "for the
protection of the negro, but has become the asylum
of the multi-millionaire."
It is doubtful whether any new contribution has
been made to the construction of the first clause of
the Amendment since Judge Campbell's argument
and the opinion in the Slaughter-House cases. As
said by Justice Miller, while the decision did not
meet the approval of four out of nine Justices, and
although there were intimations that in the legisla
tive branch of the Government the opinion would
be reviewed and criticized unfavorably, no attempt
to overrule or reverse the case has been made.1
It is one of many illustrations afforded by our
constitutional system of government, in which lan
guage supposed to be clear and explicit, when used
by the legislative department, is found to be obscure
and capable of differing constructions by the judi
cial department. Senator Edmunds, who took part
in formulating the Fourteenth Amendment, said:
"There is no word in it that did not undergo the
completest scrutiny. There is no word in it that was
not scanned, and intended to mean the full and
beneficial thing it seems to mean. There was no dis
cussion omitted; there was no conceivable posture
of affairs to the people who had it in hand which was
not considered."2 And yet it was found, upon the
1 Justice Miller: Address, Centennial, University of Michigan
(1887). 2 Guthrie: The Fourteenth Amendment, 25.

THE FOURTEENTH AMENDMENT 235
first attempt to enforce its first clause, after two
arguments by such lawyers as Jeremiah S. Black,
Matthew H. Carpenter, John A. Campbell, and
J. Q. A. Fellows, that the Court, by a division of
five to four, radically differed in respect both to the
intention of the framers and the construction of
the language used by them.

CHAPTER IX
LAST YEARS AT THE BAR
In Jackson vs. Ludeling,1 Judge Campbell, associ
ated with Judge Spofford, successfully resisted the
consummation of what Justice Strong characterized
"a great wrong, perpetrated by the agency of legal
forms." The case reveals a series of transactions, by
which a holder of a claim of $720, in confederation
with the officers of a railroad company and an at
torney of the Court, by means of fraudulent com
binations and suppression of bidding, succeeded in
securing title to a railroad for fifty thousand dollars
in the construction of which two million dollars had
been expended and for which the defendants were
offered immediately after the sale one million dol
lars. Justice Strong, following Judge Campbell's ar
gument denouncing the methods resorted to by the
defendants in acquiring the property, said: "The
forms of law were scrupulously observed. But they
rely upon faithlessness to trusts and common obliga
tions, upon combinations against the policy of the
law, and fraudulent, and upon confederate and suc
cessful efforts to deprive them wrongfully of property
in which they had a large interest, for the benefit of
persons in whom they had a right to place confidence."
As said by the Justice in his exposure of the fraud:
"It is necessary to a thorough understanding of the
case, to consider the relation in which many of the
1 21 Wall. 616.

LAST YEARS AT THE BAR 237
purchasers at the sale, who are the present defend
ants, stood to the complainants, and how far their
conduct was consistent with that relation. ... It is
impossible to sustain such a transaction. Through
out it was grossly inequitable. That the property
was sacrificed by means of an unlawful and wide
spread combination is abundantly proved, and that
the directors who were parties to it, and. who be
came the purchasers, were guilty of an inexcusable
violation of confidence reposed in them, admits of
no doubt. Ludeling, it is true, was not a director,
but he was a leading member of the combination
and its chief agent in carrying out its plans. He
knew its purposes. He knew its illegality. He had
negotiated the surrender of Home with full knowl
edge of Home's breach of trust. . . . Indeed, Ludel
ing appears to have had complete possession of the
sheriff. . . . The defendants can take nothing from
such a sale thus made. Were we to sustain it, we
should sanction a great moral and legal wrong, give
encouragement to faithlessness to trusts and confi
dence reposed, and countenance combinations to
wrest by the forms of law from the uninformed and
confiding their just rights."
At the time this opinion was delivered, the de
fendant Ludeling was Chief Justice of the Supreme
Court of Louisiana, having been appointed by Gov
ernor Warmouth. At the end of his term, 1877, he
was reappointed by Governor Kellogg, but was
overthrown in January, 1877, in the downfall of the
corrupt administration and the restoration of hon
est government.

238 JOHN ARCHIBALD CAMPBELL
Referring to Judge Campbell's argument, it is
said: "His attack was upon the foreclosure, under
executory process of the civil law of Louisiana, of
the railroad. He destroyed the title of Ludeling and
his associates. He overwhelmed the defendants and
drove them before him. ... It was a State-famous
litigation, and the excoriation of his argument is
somewhat reflected in the Court's opinion; he won
it justly. But aside from the private interest he ren
dered an equally great and timely public service." 1
The Court set the sale aside, ordered the defend
ants to restore the property to the owners, and di
rected an accounting. A number of novel and inter
esting questions were presented on the accounting,
resulting in further appeals. In Jackson vs. Ludeling,
in which Campbell appeared for Jackson,2 the Court
disallowed a large number of bonds which were
never issued by the officers of the corporation, but
in an incomplete condition were seized and carried
away, during the Civil War, by soldiers and sold in
the market. It was held that enough appeared on the
face of the bonds, in connection with the price at
which they were sold, to put the purchasers upon
notice of their invalidity. The railroad remained in
the possession of the defendants for several years
subsequent to the fraudulent purchase, and upon
the accounting they made claim for improvements
or ameliorations. The questions were decided ac
cording to the provisions of the Louisiana Code,
1 Letter of Henry P. Dart; Lonn: Reconstruction in Louisiana,
304, 485.
2 99 U.S. 434.

LAST YEARS AT THE BAR 239
which "is based upon the civil law, not precisely as
laid down in the compilations of Justinian, but as
interpreted in the jurisprudence of France and
Spain: and had some peculiar rules on the subject."
This controversy invited Judge Campbell into a
favorite field of jurisprudence. His argument
abounded in quotations from Pothier, Savigny,
Demolombe, and other civilians. In conclusion he
thus describes the conduct of the defendants, refer
ring to their claim for ameliorations: "The owners
and builders of them possessed in bad faith. They
knew of the adverse title; they knew of the imper
fections of their own; there may have been contriv
ance, counsel, combination, rapid movements to
acquire possession tortiously surprising the unin
formed and the unsuspecting; there may have been,
at the time, contagion of disorder, a malaria of cov-
etousness, stimulating men to an appropriation of
the property of others for the uses of a combina
tion." By reason of the character of the property upon
which the improvements were made, it was difficult
to apply the provisions of the Code, enacted in 1808
and 1825, providing for improvements made upon
"plantations, constructions, and works" by a per
son wrongfully in possession, nor was much aid de
rived from the decisions of the State Court. Justice
Bradley, after an exhaustive and interesting discus
sion, concludes: "We have proceeded on the princi
ple of carrying out the spirit and equity of the law,
since it cannot be carried out in the letter." Justice
Field, however, dissented, putting his objection to

240 JOHN ARCHIBALD CAMPBELL
the allowance to the claim for improvements upon
the ground that the defendants were not in posses
sion as bona fide claimants. He says: "I know of no
law and no principle of justice which would allow
defendants anything for expenditures on property
they wrongfully obtained and wrongfully withheld
from the owners, who were constantly calling for
requisition. Why should the owners pay for expen
ditures they never ordered or for construction of
works they never authorized? The defendants knew
all the time the vice of their title. They knew they
were not possessors in good faith; they concocted
the scheme by which the fraudulent sale was made;
and this the Court has so adjudged. . . . The
learned counsel for the appellants who argued this
case showed, I think conclusively, by reference to
numerous adjudications and approved text writers,
that the civil law in Europe and in Louisiana draws
the same line of demarcation between the possessor
in good faith and the possessor in bad faith in allow
ing for improvements and expenditures on the prop
erty of another. ... I prefer in this case to stand by
the ancient law, than to follow any new doctrines
supposed to arise out of the character of railroad
property. To me it seems that the peculiar character
of that property requires the special application
of the old law; for just in proportion to the value of
this property is the temptation to get possession of
it, and if plunderers can, when compelled to restore
it, be allowed for their expenditures and alleged im
provements, there will be an added incentive to
plunder."

LAST YEARS AT THE BAR 241
In this appeal Judge Campbell and Judge Spof
ford were, as in the Slaughter-House cases, opposed
by Jeremiah S. Black and Matthew H. Carpenter.
Ludeling, having by the "Revolution of 1877" lost
his seat on the Bench, appeared also for the defend
ants. The effort on the part of several of the States
to invoke the original jurisdiction of the Supreme
Court of the United States to eMorce payment by
the State of Louisiana of interest on her bonds,
brought to Judge Campbell the opportunity to make
what is regarded as his greatest argument upon
the construction of the Constitution, defining and
limiting the power vested in the judicial department
in controversies wherein the States were parties.1
The Legislatures of New Hampshire and New
York enacted statutes, enabling any citizen holding
bonds issued by a State, upon which the interest had
not been paid or the principal money was due, to
assign to the State such coupons or bonds. The
statute directed the Attorney-General of such State,
upon the deposit of the bonds or coupons, with a
sum sufficient to cover the costs incurred, to bring
suit or proceeding in the name of the State, to en
force the payment of the coupons or bonds, in the
Supreme Court of the United States, and to employ
counsel to prosecute such suits. No cost was to be
paid or expense incurred by the State. Counsel fees
were to be paid from the recovery. The Attorney-
General was directed to pay over to the assignor of
1 Art. m, Section 2, and the Eleventh Amendment. New York
and New Hampshire vs. Louisiana, 108 U.S. 76.

242 JOHN ARCHIBALD CAMPBELL
such bonds or coupons all sums recovered, after pay
ing the cost and expense of the litigation.
Pursuant to the provisions of these statutes, citi
zens of New York and New Hampshire assigned
coupons for interest on bonds issued by the State
of Louisiana, and original bills in equity were filed
in the Supreme Court to enforce their payment.
Wheeler H. Peckham, David Dudley Field, William
A. Duer, and Leslie W. Russell, Attorney-General,
represented the States of New Hampshire and New
York. John A. Campbell and J. C. Egan, Attorney-
General, represented Louisiana. Judge Campbell in
sisted that the immunity of the State from suit was
an incident to sovereignty and had existed since the
Declaration of Independence, during the Confedera
tion of the United States. He said: "This immunity
ought not to be evaded, nor infringed by any indi
rection, collusion, contrivance, simulation, or fiction
in modes of judicial procedure, but should be main
tained in the exactness of the letter and fullness of
the spirit of the Constitution."
Following a statement of the general principles
upon which the constitutional status and the re
served rights of the States are based, he says: "The
State administration within this range may be car
ried on as independently as if the Government of
the United States did not exist. The power of taxa
tion, with the auxiliary and consequential power of
assessment, collection, preservation, and appropria
tion of the monies arising from taxation, extends to
all the property within the State which exists by its
authority or was introduced by its permission."

LAST YEARS AT THE BAR 243
Defining the character of the controversies be
tween the States contemplated by the makers of the
Constitution, of which jurisdiction was conferred
upon the Supreme Court, and denying the power of
a State to acquire by assignment such a controversy
with a sister State, he says: "It is only by their con
sent that controversies between two or more States
are subject to the determination of this Court." That,
"as this consent is the only cause of jurisdiction, and
the consent is confined to a single and distinct class
of political and judicial persons, all of whom are
associated under an organic law which determines
their relations and intercourse, this jurisdiction can
not be extended to include controversies wMch did
not originate in some lawful intercourse or connec
tion of the one State with the other who are parties,
and cannot include demands acquired by assign
ment and growing out of intercourse to which the
States were not parties and have not direct and im
mediate interest."
He gives an interesting history of the origin and
formation of the article and section of the Constitu
tion defining the jurisdiction of the Federal Courts,
calling attention to the fact that of the Committee
of the Convention of 1787, appointed to draft and
report a form of the Constitution, Rutledge and
Ellsworth became Chief Justices, Wilson an Asso
ciate Justice of the Supreme Court, and Randolph
the first Attorney-General. He quotes the language
of Hamilton in the "Federalist," and refers to the
debate in the Virginia Convention which ratified
the Constitution, noting the criticism of the article

244 JOHN ARCHIBALD CAMPBELL
by George Mason and Patrick Henry and the an
swer by John Marshall and James Madison, to their
apprehension that, by its terms, a State was made
subject to a suit by an individual. He urges: "The
contemporary exposition, which is esteemed so
strong and trustworthy in the determination of the
true intention of the authors of a law or constitu
tion, leaves little doubt on the subject. The general
opinion was a State could not be sued without her
consent. This opmion was inculcated by the most
prominent supporters of the Constitution."
He discusses the "disturbance made on this sub
ject," by the decision in Chisholm vs. Georgia,1 the
numerous protests which followed the decision, and
the action of John Hancock, Governor of Massa
chusetts, and his successor, Samuel Adams, result
ing in a special session of the Legislature and the
passage of resolutions, instructing the Senators and
Representatives to "adopt the most speedy and
effectual measures in their power to obtain such
amendments to the Constitution as will remove any
clause or article of the Constitution which can be
construed to imply or justify a decision that a State
is compellable to answer in any suit by an individual
or individuals in any court of the United States."
This is followed by a history of the introduction,
by Caleb Strong, of Massachusetts, of the resolu
tion which was adopted as the Eleventh Amend
ment. It is interesting to note, as evidence of the
care with which the power to sue a State by an in
dividual was negatived and the danger of judicial
1 2 Dall. 419.

LAST YEARS AT THE BAR 245
construction to the contrary excluded, that, whereas
the resolution as introduced simply declared that
the judicial power of the United States "shall not
extend," it was so amended as to ordain that such
power "shall not be construed to extend." 1 All
other amendments were rejected by large majori
ties, and the resolution was adopted in the Senate
by a vote of 22 to 2, and in the House of Represent
atives by 81 to 9.
Having discussed the general constitutional ques
tion, Judge Campbell proceeds to deal with the
instant case, saying: "The General Court of New
Hampshire seems disposed to employ this Court
with the grievances that her citizens may have or
shall acquire in commercial intercourse with any
State of the Union, or with the citizens of any State
of the Union in which the State may be chargeable.
The Court only requires an assignment of the right
to complain and accordingly a complaint will be
made as the assignor directs."
He treats the "assignment" of the coupons to the
State, for the avowed purpose of conferring upon it
the right to sue, as a mere fiction, saying: "Men
have actually been made to regard fictions as apt
and necessary to good government in general and
good judicature in particular. That fiction debases
the intellectual and mental frame of all those upon
whom the imposture passes, and by whom the false
hood uttered in place of a reason, is accepted as con
stituting a reason and that a sufficient one; and
1 Braxton: " The Eleventh Amendment," Journal, Virginia Bar
Association (1907), 185.

246 JOHN ARCHIBALD CAMPBELL
when employed by a judicial functionary the evil is
greatly aggravated. . . . Commentators, historians,
and moralists have complained of the abuses in the
jurisprudence and procedure of the English courts
and have expressed condemnation of the usurpa
tions of the courts and of their tolerance of false
hood, ascribing to them a pernicious influence on the
probity of lawyers, the dignity of the court, and ad
dition to the delays, expense, and uncertain results
of judicial proceedings, the encouragement of petti
fogging, and the contamination of justice itself,
which is inseparable from truth. ... It can hardly
be charged upon the authors of the Constitution
that they had a design to encourage any duplicity
or to promote opportunities for disguise or indirec
tion. The citizens of the United States were all
brought into immediate contact with the authority,
and were secured in the protection of the United
States, by the Constitution. A leading and control
ling principle of the new Constitution was the dis
carding of intercessors, mediators, or procureurs be
tween the people and the Government otherwise
than as representatives duly chosen. . . . The result
of the inquiry we have made shows that the immu
nity of sovereigns from civil suits, unless when they
consent, is universally enjoyed, and that the States
of the Union from the time of their Declaration of
Independence have asserted and enjoyed this im
munity, except in cases of controversies with one
another in respect to their boundaries and jurisdic
tion. There is no instance of a suit commenced on a
contract, the performance of a debt or duty. The

LAST YEARS AT THE BAR 247
claim made in this bill when fully considered is that
there is no power, privilege, immunity, or right of a
State which may not be subordinated to a judgment
or decree of this Court at the suit of another State,
and there is no restraint upon one State from acquir
ing, by contract or convention, causes of suit
against another State, the effect of which will be to
change the Union of the United States into a Re
public like that of France, composed only of de
partments, cantons, and communes. ... A vast
change would take place, not only in the Court but
in the Government. A transformation from anal
ogous conditions occurred in the mediaeval epoch,
both in England and France, in the contest of the
monarchs with the feudal chiefs and with the
Church. Guizot tells us how the lawyers became
efficient and admirable instruments in the hands of
royalty, and that with regard to government in
general and judicial affairs in particular, they es
tablished principles contrary to liberty. So, De
Tocqueville admonishes such sovereign jurisdic
tions to control their centralizing proclivities and
the ambition of fixing novel desires and fanciful ex
pectations that are diffused among the people upon
themselves, by making their rule too attractive and
advises that the safe and honest line of conduct is to
advise their subjects to take care of themselves."
He insists that the "contract must be understood
in the sense which accords with the public order
among the parties, when and where it was made,
and with their maxims of law and the order of their
jurisdiction. The bonds in suit were issued by the

248 JOHN ARCHIBALD CAMPBELL
authorities of the State of Louisiana when there was
a condition bordering on anarchy and civil war and
which continued for some time afterward. When
issued their market value was not more than one
half of the sum for which they were given. The hold
ers knew that there was no coercive power to enforce
their payment. Every purchaser invested under a
hope of exorbitant profit and this profit was the
evidence of hazard. ... It can hardly be supposed
that the clause in the Constitution under considera
tion was inserted to enable a State to secure for her
citizens the profits they hoped to make by adven
tures in depreciated securities of States at the Stock
Exchange." Mr. William A. Maury says: "Judge Campbell
displayed the same remarkable ability and research
as he had shown in the Slaughter-House cases some
years before (1872). He left nothing to be said or de
sired, on the rationale of the governmental exemp
tion from suit. I may say, without the slightest im
propriety, I hope, touching his argument in those
cases, that I heard a member of the Court before
which they were argued, who was not, however, one
of its members when the Slaughter-House cases
were before it, say that Judge Campbell's argument
in the Louisiana cases was the greatest he had heard
since he was a member of the Court." 1
Senator Gibson, who met at a dinner in Washing
ton, the Justices of the Supreme Court, wrote that
Justice Horace Gray said that the argument made
by Judge Campbell, the day before, in the Louisiana
1 Memorial Addresses — Justice Campbell.

LAST YEARS AT THE BAR 249
case was "the greatest he had listened to in his life.
That he had been Chief Justice of Massachusetts
eighteen years and had never listened to such a pro
found argument as that of Judge Campbell. " Jus
tice Miller, who was present, concurred with Justice
Gray, and Chief ) Justice Waite said that it was the
greatest argument he had ever heard in a court of
justice. Justices Field and Blatchford concurred in
this estimate of Judge Campbell's argument.1
Mr. Bancroft wrote, "I know not whether to ad
mire it most for its exposition of the Constitution,
or its general ability and truth-seeking thought."
The Honorable Thomas J. Semmes said: "I heard
the argument. The courtroom was crowded with dis
tinguished auditors. The Court and audience lis
tened with rapt attention to the great lawyer, as he
demolished, one after another, the propositions of
his antagonists. . . . His splendid, luminous argu
ment, which for erudition, research, breadth of view,
political and historical knowledge and constitu
tional lore surpassed any I ever heard." 2
Judge Campbell regarded his argument in this
case as the culmination of his professional efforts
and the result the great achievement of his life-
work, the maintenance by the Supreme Court of
the immunity of the States from suit without their
consent as inherent in their political sovereignty.
The bills were dismissed, Chief Justice Waite, writ
ing the opinion, sustaining Judge Campbell's posi
tion. While ther attempt to bring States before the
1 Washington correspondent, New Orleans Picayune.
2 Memorial Addresses — Justice Campbell.

250 JOHN ARCHIBALD CAMPBELL
Court, through the medium resorted to in these
cases, has not been repeated, the contentions, by
Judge Campbell, that such a claim was not within
the constitutional grant of power to sue a State and
that causes of controversy could not be acquired by
another State by assignment, were rejected in South
Dakota vs. North Carolina.1 Justice White strongly
dissented from this decision, in which he was joined
by Chief Justice Fuller and Justices McKenna and
Day. In the Tennessee Bond cases,2 Judge Campbell,
representing several of the railroad companies, par
ties to the litigation, was associated with a number of
the most eminent lawyers of the country represent
ing other companies. The controversy involved
large interests and presented a number of novel and
interesting questions. Judge Campbell's printed
arguments for the several companies which he rep
resented contain exhaustive discussion of the facts
and quotations from American, English, and Conti
nental decisions and textbooks, including the In
stitutes of Menu. Referring to his association
with Judge Campbell in these cases, Judge George
Hoadly said: "I know him well as the defeated
knows the conqueror, for in two of the most mem
orable cases of my life I was the captive of his
bow and spear."
Judge Campbell was of counsel for defendant in
the case of Stone vs. Farmers' Loan & Trust Com
pany, reported, together with several other cases
relating to the same subject, as the "Railroad Com-
1 192 U.S. 286. » 114 U.S. 663.

LAST YEARS AT THE BAR 251
mission Cases." x This litigation grew out of the
movement in the Southern and Western States to
control through the medium of commissions the
operation of railroad companies, especially in fixing
rates of charges for freight and passengers. The
questions discussed in the argument and decision of
these cases, although at that time unsettled and of
far-reaching importance, have, by a series of deci
sions, passed into the history of our State and Na
tional jurisprudence. Judge Campbell, as was his
custom, discussed the questions presented from
every viewpoint. In maintaining the primary propo
sition that the right to fix tolls and rates was vested
in the corporation by its Charter, and removed from
the regulative power of the Legislature by the con
tract clause of the Constitution, as construed in the
Dartmouth College cases, Judge Campbell, to some
extent, encountered the principle for which he con
tended in his dissenting opinions in Bank vs. Knoop
and Dodge vs. Woolsey. While in this series of deci
sions, beginning with Munn vs. Illinois,2 the Dart
mouth College case has not been overruled, the
Court has, by expanding the principles of the com
mon law subjecting public service corporations to
legislative control, very materially narrowed its
scope and restricted its effect. The legislation giving
expression to the demand of the people for fair rates
and reasonable facilities for transportation of freight
and passengers, enforced by the decisions of the
Court, constitutes one of the most interesting and
important chapters in our National life. The danger,
» 116 U.S. 307. * 94 U.S. 113.

252 JOHN ARCHIBALD CAMPBELL
of which Judge Campbell gave warning in his dis
senting opinion, of the effort of corporations "to
ignore the fundamental laws and institutions of the
State and to subject the highest popular interest to
their central boards of control," had been realized.
The power reserved to the legislatures of the States
to control public service corporations and confine
them in their operations to reasonable regulations,
is now firmly established in our jurisprudence. It
has passed beyond the field of controversy, but at
the time of the argument and decisions of the "Rail
road Commission Cases" many questions in respect
to the existence of the power and the manner and
extent of its exercise were unsettled and exceed
ingly doubtful.
In Memphis & L. R. Railroad Co. vs. Southern
Express Company,1 decided and reported together
with a number of other cases involving the same
question, known as the "Express Company Cases,"
Judge Campbell was associated with Clarence A.
Seward and George F. Edmunds. The controversy
grew out of the effort of the express companies to
compel the railroad company to extend to them fa
cilities for conducting their business. The litigation
was instituted in the Circuit Court by suits in
equity, seeking mandatory injunction commanding
the railroad companies to perform their duty to the
complainants. They were heard by Justice Miller
and the Circuit Judge sitting in the Circuit Court,
where decrees were made granting the relief de
manded. On appeal, the decrees were reversed.
» 117 U.S. l.

LAST YEARS AT THE BAR 253
Judge Campbell, in his brief, gives an extended
and enlightening history of the origin and growth of
the business of common carriers, both freight and
express, in France and England. His citations and
quotations from the decisions of the courts of these
countries constitute a fund of learning exhibiting
vast amount of labor of investigation and reflection.
To the student interested in the development of the
various systems of transportation and the effort on
the part of the people through the lawmaking de
partment and the courts to control, without de
stroying, these essential agencies in the growth of
modern life, the briefs prepared in these cases by
the great lawyers who aided the courts are of per
manent value; they are great storehouses of hifor-
mation and learning. Of necessity, the opinions of
the courts are abridged condensations of the argu
ments of lawyers.
Justice Miller dissented from the conclusion
reached by the majority of the Court. He said that
"three years' reflection and the renewed and able
arguments in the Supreme Court " had not changed
his opinion. Referring to the ultimate outcome of
the decision he said: "I am very sure such a proposi
tion will not long be acquiesced in by the great com
mercial interests of the country and by the public
whom both railroad companies and the expressmen
are intended to serve." Justice Field concurred in
the dissent. In these cases Judge Campbell was op
posed by Judge John F. Dillon, Sidney Bartlet, and
other lawyers of national reputation. The contro
versy, like that relating to rate-making and other

254 JOHN ARCHIBALD CAMPBELL
questions involving the contest for governmental
control which agitated the people, the legislatures,
and the courts, has been, to a large extent, removed
from judicial to administrative agencies, State and
National. Judge Campbell argued, after he had passed his
seventieth year, a number of his most important
and difficult cases. His briefs in these cases exhibit
an undiminished capacity for labor and thorough
ness of preparation. The Tennessee Bond cases and
Louisiana Gas Company vs. Louisiana Light Com
pany were argued by him at the October Term,
1884.1 The Express Company cases and Wright vs.
Kentucky and Great Eastern Railroad Company 2
were argued at the October Term, 1885, when he had
reached the age of seventy-four years. He had lived
to realize his ideal of professional life — six cases a
year in the Supreme Court with ample time for
preparation. At that time he had retired from gen
eral practice.
The Louisiana Gas Company case was of great
importance to the people of New Orleans, being the
result of a long and hotly contested litigation for the
privilege of furnishing lights to the city and citizens.
It began with the "Attorney-General on the rela
tion of the Crescent City Light Company vs. The
Louisiana Gas Company." 3 In his brief in this case
Judge Campbell expresses indignant protest against
the attempt by the Attorney-General to nullify an
act of the Legislature, enacted many years before,
granting the franchise to the defendant company,
1 115 U.S. 650. 2 117 U.S. 1-72. « 27 La. Ann. 138.

LAST YEARS AT THE BAR 255
for the benefit of a new company of questionable
origin. He insists that the Attorney-General, on be
half of the newly created corporation, has no right
to attack the validity of the original corporation,
saying: "We do not perceive that the Attorney-
General has brought before the Court any parties
interested in the act or bound by it. We do not see
that any parties at all be necessary if the Attorney's
pretensions be admitted. We have sought in vain
for any precedent for the judicial nullification of a
statute of the Legislature."
Referring to the course pursued by the Attorney-
General and the standard of morality then prevail
ing in official circles in the State, he says: "It is
rarely that men have been willing to incur the re
proach of attempting to involve a State in so dis
graceful and discrediting a breach of public faith and
public honor as the present. Some of the cases aris
ing under legislative acts, lately passed, which I
have examined, resemble those cases of crimen falsi
where captains or mates combine to cast away
the ship, cargo, and seamen to get the insurance
money for themselves — faith, duty, obligation, the
world's estimation, the approving conscience, all
go to the depths together with the property they
should have taken care of, even to the surrender
or sacrifice of their own lives. These people have a
very imperfect and confined idea of the intrinsic
majesty of the government and country they belong
to, and if the fact be that life or property be insecure
in this State it is due to those whose sacred duty it
has been to protect both. ... In the year 1870 a

256 JOHN ARCHIBALD CAMPBELL
band of adventurers caused to be passed, in the
manner that such acts have been notoriously passed,
before and since, an act entitled, 'An Act to Incor
porate the Crescent City Gas Light Company.' The
duration of this charter is fifty years from and after
the date of the expiration of the charter of the New
Orleans Gas Company. The monopoly which was
discontinued by the Act of 1860, this band has
caused to be granted to them. . . . When the At
torney-General presumes to say that the State of
Louisiana has an interest in breaking its faith, re
pudiating its contracts, dishonoring its name by re
sorting to a quibbling plea, we feel bound to express
a decided and emphatic dissent. ... In the stock of
this [defendant] corporation is reposed the property
of the widow and the orphan. Brothers have given
it to unprovided sisters. Mothers and fathers have
bought it for the support of their young daughters.
The object of this suit is to make these deposits a
spoil and a booty for the greedy, the depraved, and
corrupt." While this is strong language to be ad
dressed to the Supreme Court concerning the Legis
lature and the Attorney-General, it would seem that
existing conditions in Louisiana justified it.1 The
Supreme Court sustained the action of the Attorney-
General of Louisiana.
In New Orleans Gas Light Company vs. Louisiana
Light Company, Judge Campbell was more success
ful in protecting the rights of the old company than
he had been in the State Court.2
1 Lonn: Reconsiru^ion in Louisiana, chap. n. 2 115 U.S. 650.

CHAPTER X
PERSONAL CHARACTERISTICS, INTELLECTUAL AND
SOCIAL TRAITS
Judge Campbell inherited from his Highland
Scotch ancestors a strong physical constitution and
an almost in exhaustible capacity, coupled with a
passion for labor. We have given a description of his
appearance and manner in his young manhood. A dis
tinguished lawyer and publicist who, in his earlier
years residing in Mobile, saw much of Judge Camp
bell, gives the impression which he made upon him
self and others. He says: "When he came from New
Orleans to Mobile, as he often did after the Civil
War, the people would gaze at him as he passed
along the streets. His personal majesty overcame
you — it was almost oppressive, even when he was
most friendly. His power to labor was prodigious,
his physical endurance was fortified by absolute
temperance in all things." x
Another, who knew him well during his residence
in New Orleans, said: "He worked hard in his
profession, because he loved knowledge. He was a
great reader of books, new books, ancient history,
fresh literature, and modern thought. . . . Work
constituted his happiness. When it was over he
rested. He was serious, sometimes imperious. In
the Courts he was best known. When he would go
there he would go with the spirit of a gladiator,
honorably, but fiercely, to contest for the prize." 2
1 Letter from the Honorable Hannis Taylor.
2 Memorial Addresses — Justice Campbell.

258 JOHN ARCHIBALD CAMPBELL
His success came as the reward of patient, labori
ous industry. He went to the bottom of every ques
tion with which he was called upon to deal and ex
hausted every resource to sustain his conclusions.
Mr. Maury, referring to his capacity for labor in the
last years of his practice, said: "He has sometimes
playfully confronted me with the evidence of his
tremendous industry, as if to say that researches
that appalled younger men had no terrors for him.
It was mainly by labor, incessant labor, that he
stood first at the Bar." x
Mr. William D. Guthrie, with whom Judge
Campbell was associated in the preparation of the
argument in the Railroad Commission cases, says
that Judge Campbell expressed as his ideal of pro
fessional life, "to have six cases a year before the
Supreme Court of the United States and plenty of
time to investigate and prepare for argument. To
him the administration of justice was a great science
and to the elucidation of its problems brought an ex
ceptionally well-filled mind and indefatigable labor."
Chief Justice White, a young lawyer at the time resid
ing in New Orleans, says : "I recollect very well hear
ing him argue the Slaughter-House cases and the im
pression left on me by that argument was that he
was a book man of great reading. Time brought me
some personal association with him and sowed the
seed of a real personal affection which was germi
nated and never died." 2
Mr. Henry P. Dart, of New Orleans, whose "le
gal christening began with the clerical labor" in the
1 Memorial Addresses — Justice Campbell.
2 From letter of Chief Justice White.

PERSONAL CHARACTERISTICS 259
preparation of the argument in these cases, as a
junior in the office of one of the counsel, gives an in
teresting personal incident from which we get an
impression of Judge Campbell's appearance and
manner. He says that one morning he met the Judge
"sitting at the corner of Carondelet and Canal
Streets, on the covered street hydrant, munching
something, possibly an apple; he was 'batting' or
'beetling' his great eyebrows and evidently in pro
found thought, as was his habit. I never saw him
when he did not appear to be abstracted from his
surroundings. I spoke to him and he arose and put
his arm in mine, and so we journeyed across the big
street to wherever he was going. He began to talk to
me, stating some legal problem as though he were
thinking aloud, but every now and then stopping
and lowering over me with outstretched arm and
vocal inquiry, just as he would have emphasized a
point in an argument. Of course I knew he was talk
ing at me and not to me, and the only response ex
pected was a word or two necessary to let him catch
his breath. When I delivered him at his destination,
the thinking man disappeared, and his courtesy re
turned with an expression of his happiness at the
opportunity we had had together, and I may add,
he said it as though he believed it. But as for me, it
was sufficient for the day that I, a stripling at the
Bar, had walked down that crowded thorougMare
arm in arm with the greatest lawyer of the time, en
gaged in a most profound and absorbing, though
one-sided, discussion." x
1 Letter from Henry P. Dart.

260 JOHN ARCHIBALD CAMPBELL
"He was a man of noble presence and, until his
powers began to fail with increasing age, of great
physical power. His tall form, his dignified and
impressive presentment, called for immediate re
spect, even before the weighty argument required
assent." x
While visiting Louisville, Kentucky, on profes
sional business, he was described by a newspaper
correspondent as a man of "Scotch physiognomy,
toned down after two or three generations of Ameri
can civilization. He has a fine head, partly bald, and
encircled with soft, white hair. He is quiet and de
liberate in speech, with a musical voice."
The Washington correspondent of the "Philadel
phia Record" describes his appearance at the time
he argued the case of New Hampshire vs. Louisiana:
"The man who made the argument was John A.
Campbell, of New Orleans. He was a member of the
Supreme Court of the United States when the most
famous of its present members were unknown. He
held his place until the war broke out, and then he
left the Union and the Bench, with his State. He re
appeared after the war as a member of the Supreme
Court Bar, with a remarkable practice even for that
Bar, of large practice and great fees, and has stood
in the front rank ever since. He is a very old man.
His form is thin and bent, his skin is in the parch
ment state, and his hair is as white as the driven
snow; but a great mind looks out through his keen
eye and a great soul controls his fragile body. He is
a lawyer to the core — in some respects one of the
1 Memorial Addresses — Justice Campbell.

PERSONAL CHARACTERISTICS 261
wisest, broadest, deepest, and most learned in the
United States. He has neither the presence, voice,
nor tongue of the orator, but when he speaks in his
thin, measured tones, never wasting a word, the
Supreme Court of the United States listens as it lis
tens to almost no other man. Mr. Campbell is ab
sorbed in his work. He has no eyes or ears for any
thing or anybody not immediately concerned in the
case in hand. He lives quietly in New Orleans, sur
rounded by one of the finest law libraries, in all lan
guages, in the world. He is a profound civil lawyer, |
with Justinian at his tongue's end, and, at the same
time, a common-law lawyer, competent to battle j
with the best of that class. His memory is as wonder
ful as George Bancroft's. He apparently remembers
every scrap of law he ever saw or heard, and he has
his resources so classified and catalogued that he can
bring them forth at will. . . . Once retained in a case,
he becomes a recluse. When he emerges from his
books, he has absorbed that case with all its bear
ings, either his own side or the other."
Judge Campbell's mind was sound, his fiber tough
and his character robust. He was clear in his
conceptions, but without imagination. His mind was
massive rather than analytical. He was earnest of
purpose and was loyal to client and friend. To many
he seemed to have a supernatural power of insight
and to be able to extricate the unfortunate from any
difficulty. On one occasion a colored woman, to
whom he had given money to purchase freedom for
herself and family, when about to die, said to a good
woman, "Put your trust in God and in Mr. Camp-

262 JOHN ARCHIBALD CAMPBELL
bell." He was a friend to the unfortunate, tender to
children and women. No deserving person ever ap
pealed to him for protection without receiving it. In
his daily life he was frugal and simple, working con
tinuously but quietly. He was always a great reader
and accumulated a large library of both law books
and general literature.
While there is no evidence that Judge Campbell
indulged in humor or light conversation, we have
the testimony of those whom he met in social rela
tions that he was an interesting talker. Mr. Maury
says that he had "in writing from one of the great
est living jurists" — then a member of the Supreme
Court — his estimate of Judge Campbell, as "one
of the most interesting persons I ever knew. Great
in learning, far-reaching in thought, simple in man
ner, most instructive in discourse." x
Judge Hoadly, on the same occasion, said: "In
the long discussions, which, beginning at Memphis,
carried us to Mobile and finally here [Washington],
I became his friend, and many an otherwise tedious
hour during that association has he beguiled in high
discourse of the fall of Richmond, in wMch city he
remained the sole surviving representative of the
Confederate Government after all others had fled;
of the attempts at peace with Mr. Lincoln and Mr.
Seward, at Hampton Roads, and of his services in
this Court." Judge Hoadly gives an interesting ac
count of a conversation in which Judge Campbell
gave expression to his high estimate of Judge Cur-
tis's service, not only in the opinions which he wrote,
1 Memorial Addresses — Justice Campbell.

PERSONAL CHARACTERISTICS 263
but of the counsel and advice he gave his associates
in the Conference-Room.
"Any one who has heard him give his reminis
cences of public men and the stirring events which
happened in his time, will agree in respect to the
charm of his conversation, with its admixture of
humor, which latter a stranger would never have
supposed to exist behind that cold, abstracted ex
pression, which he generally wore in public." x
It is interesting to have Judge Campbell's esti
mate of some of the men of National reputation with
whom he was, at times, associated. Of John C. Cal
houn he said: "My father was an old friend of Mr.
Calhoun and I had been brought up to admire him.
When I went to see him at Washington, I appeared
under the patronage of my father's name, and at
this distance he appears to me to have been a man
of interesting appearance and an intense form of ad
dress, and after a few lapses, he proceeded upon me
with all the earnestness of one addressing a popular
audience. He was more ardent than suited my years
as compared with his, and, after he had talked with
me, in the wildest way, for some time, I got the no
tion that he was practicing something upon me.
Soon afterwards he delivered a celebrated speech in
which I thought I recognized whole sentences as
what he had declaimed to me, a mere young man.
Mr. Calhoun was a man whose theories of govern
ment were never reasoned out from what he knew,
but, in the privacy of his closet, a priori. He grew in
love with these ratiocinations and was perfectly
1 Memorial Addresses — Justice Campbell.

264 JOHN ARCHIBALD CAMPBELL
honest in his avowals of them, and they struck many
good men in his time as true positions. He had the
misfortune of having had the Presidency on the
brain. No man ever had it worse. The loss of it gave
a strange aspect to his later years and made him feel
like one who had nearly won the imperial rule and
had lost it. He considered all questions in the light
of one who had been discrowned, and could magnify
his experience as truly as if he had spent a long
term of actual sovereignty. But his love of country
under the aspects of his mind was as undoubted as
that of men who kept in promise longer."
Of R. M. T. Hunter, he said: "Mr. Hunter had
one of the finest minds in the South and one of the
most honest and beautiful natures. You will recol
lect that he was never famous for the violence of his
opinions, but sought, within his opportunities, to do
the best for his people and give direction to the
country under its old conditions according to the
truest civilization of which he was capable. I have
known him in captivity, when our misfortunes
pressed equally upon us, and around us, and learned
to love him. He has time enough on his side of the
clock to be of some influence, and one of the speeches
which he made during the last campaign was pleas
ing to me because it showed that he retained the
vigor and health of his mind."
An interesting side-light is cast by Judge Camp
bell upon James M. Mason, accompanied by an in
cident which shows the kindly consideration for his
wife. He says: "Mason's domestic life was pecul
iarly beautiful. He married the daughter of Colonel

PERSONAL CHARACTERISTICS 265
Chew, who owned the mansion and ground where
the battle of Germantown raged in the Revolution
ary War. After Richmond was evacuated, I re
mained in the city until it filled up with the troops
of the United States, and, as soon as I had a little
repose, I set forth to inquire into the condition of
my neighbors who remained. I went to the house of
Mrs. Mason and she told me that she had destroyed
in the grate fire all of the letters which her husband
had written to her in the thirty years, or so, of their
married life. In all that time, she said, that Mr. Ma
son was never out of her company a day but he
wrote her a letter with punctuality, and when he
was Senator in Washington the school exercises of
his daughters were mailed to him every day in the
week and were, by him, corrected and returned. Mrs.
Mason had kept her husband's letters, but believ
ing that the soldiers would ransack her house she
had made the sacrifice of committing them to the
flames. She had also destroyed many souvenirs,
precious to her in a domestic way, but here was a
sword given to her father by General Washington,
which she desired me to take and conceal, for she
thought her husband's house was more exposed to
peril than my own. I was not very firm in my mind
about carrying a weapon through the streets, but
she solicited me so earnestly that I put the weapon
under my cloak and, wrapping the cloak around me,
walked through the city touched by the soldiers on
almost every side. When I got home, I put the sword
up in the top of the house among the rafters and
kept it there until I could return it with safety."

266 JOHN ARCHIBALD CAMPBELL
Of William A. Graham he said: "Mr. Graham
never was a friend of secession. ... He is a man of
the finest character, the finest nature and that sort
of noble, gentle influence which is just now needed
in the South. For him I feel a desire that he should
be recovered to the country, and if it could be done
at my wish I would have contributed something
again to the restoration of the Union."
In one of his briefs he refers to Chief Justice Eus-
tis of Louisiana as one "whose name is most honor
ably associated with the development of the science
of jurisprudence in Louisiana — a judge of great
learning and practical ability — a lawyer who pre
served at the bar the candor, fair-mindedness, the
love of truth, and the desire for justice which befits
the judge."
Judge Campbell had a remarkable capacity for
using strong, pregnant, and caustic language. This
is evidenced by a few illustrations. In his argument
before Justice Bradley, sitting in the Circuit Court
in Wood vs. Howard (1871), he said:
"In the Eighth Circle of the Inferno is a place re
served for those people who traffic in the public in
terest for their own private advantage. Those whose
'no' is quickly changed to 'aye' for lucre have a
place in the great circle, and maybe some of those
who occupy the opposite ends of this Capitol, and
have seats in the State Legislatures, shall find in the
end some accommodation there. The Malebolge is a
dark and dreadful lake of a thick glutinous mass
which on every side befimes the shore and demons
watch its wretched inmates with seething forks to

PERSONAL CHARACTERISTICS 267
press them down, should they uplift their heads
above the surface, so that if steal they can, it shall
be out of view.
"This open, flagrant, public, shameless traffic, in
acts of legislation, in corporate rights obtaining
monopolies and exclusive grants of the public do
main of various kinds, infringing the personal rights,
the individual rights of men, by bribes and corrup
tion, is the most frightful of all the circumstances
that attend the present condition of society."
A lawyer sued for damages for the occupation and
closing by a railroad company of a part of a street
on which his office was located, alleging that he lost
clients. Judge Campbell said: "The plaintiff was
examined on his own behalf as a witness. He did not
give testimony of a single client he had ever had, or
he had ever lost. No lawyer but himself had ever
had an office in that section of the city. No one had
ever seen him attending a case in the courts. No cus
tom or clientage has been withdrawn from him by
any act of the defendants. His loss, as set forth in
his pleading, is like some experiments on certain
bodies which show a loss, or rather an apparent loss,
of weight which they never had."
In the same case a number of owners of coffee
houses, saloons, restaurants, and lodging-houses
testified to a diminution of their profits and rents.
Judge Campbell said: "Father Matthew has not
been so successful in suppressing intemperate drink
ing of poisonous liquors, if this testimony can be be
lieved. The whole of this salutary effect is ascribed
to these depots and yards."

268 JOHN ARCHIBALD CAMPBELL
Discussing an act of the Legislature prohibiting
the courts from enforcing the collection of taxes, he
said: "The General Assembly, to manifest the in
tensity of their purpose, proceeded to mutilate the
jurisdiction of the judicial tribunals and pronounces
an interdict on them in this remarkable language:
'It shall be hereafter incompetent for any Court to
mandamus the officers of the City to levy and col
lect any interest tax (other than those provided in
this Act), or in case of such mandamus by a Re
ceiver or otherwise to direct the levy and collection
of such tax.' Thus it is that 'Dishonor mangles true
judgment and bereaves the State of that integrity
which should become it; not having the power to do
the good it would, for the ill which doth control it."'
Again he says: "The Legislature and the Council
both decided that a financial system which deferred
payments so that instability, uncertainty, the
chances, and peradventure the fraudulent manipu
lation of a lottery wheel were to determine who
should be paid and what should be paid, was the
best; that the old ideas of exactness, punctuality,
and strict honesty had become obsolete and were
not suited to the fashions of the day, nor to any hab
its of their own. . . . Fortunately for the country,
such crooked wisdom denominated by Lord Bacon
as 'cunning' was overruled in advance by the fram-
ers of the Federal and State Constitutions. By the
Act of 1876 the Louisiana Legislature smites to the
heart the contract made with the holders of the con
solidated stock, and destroys at once the obligation
of the contract and shuts all the avenues to the

PERSONAL CHARACTERISTICS 269
Courts and deprives the Courts of all their motive
power to afford redress. Jack Cade, assuming that
the laws of England should only come from his
mouth, and all past records must be burnt, seems to
have been the model before their eyes. The Consti
tution and laws under it were regarded as cobwebs
to be brushed away with their potential hands."
To permit the intervention of one bondholder he
says would be "to ventilate his notions of municipal
obligations and might convert the Court into a
mass meeting for the manifestation of popular pas
sions instead of being a place where justice is judi
cially administered." x
He thus describes what he foresees as the result
of regulating railroads by the Government: "There
would be a demand for railroad tracks that were
horizontal and without curves, with Pullman cars
and conductors, and the fulfillment of Jack Cade's
promise that claret or other favorite beverages
would flow in currents through conduits in all pas
senger coaches, and the fares placed at a mill a mile.
This would be an approximation to a democratic
way when the world would circulate at the cost of
the world."
In his argument in New Hampshire vs. Louisiana,
he said: "The Bill seems to assume that the States
of the Union have been set at large to carry on a
universal traffic, and that this Court has been spe
cially appointed to facilitate their commercial oper
ations; that the State is a corporation composed of
individual traffickers; that the facilities of the State
i Louisiana vs. Pillsbury, 105 U.S. 278.

270 JOHN ARCHIBALD CAMPBELL
are for the use of these collectively or separately;
and whatever right or interest one has, or will have,
may be asserted in this Court in the corporate name.
. . . The ubiquity and unity of the powers of the
Court in the exercise of origmal jurisdiction; the
absoluteness and ultimity of its judgments and de
crees; the close relation of the Court with the other
departments of the Government; the control of the
place of its sessions, combine to render such a juris
diction pleasant and alluring to suitors and attor
neys. ... It is a fact that, in respect to the twenty-
two billion and a half dollars that the States of the
world owe, there is no remedy by suit for the collec
tion of any portion. I suppose there is not a suit
pending for any portion, except this suit of New
Hampshire vs. Louisiana for the sum of two hundred
and ten dollars, and costs."
In Stone vs. Farmers' Loan Association he said:
"The predominant opinion among statesmen and
publicists is that the germinal point of all riches is
to be found in the labor of men; and that the most
sacred of all property is that right of a man to labor
for himself. Slavery consists in the compulsion of
one man to labor for another against his will and for
the emolument of that other. The withdrawal from
one man or an association, of their faculties, of their
employment of strength, dexterity, address, or ca
pacity, or to coerce their employment upon con
ditions to which they have not consented and to
apply the proceeds to another, contravenes and con
flicts with those assertions of right which are placed
as a frontispiece to the American Constitution."

PERSONAL CHARACTERISTICS 271
Describing the political conditions from which
the Crescent City Slaughter-House Company de
rived its charter, he said: "The Fourteenth Amend
ment contemplated the adoption of what is called
universal suffrage, and that has been compelled.
The force of universal suffrage in politics is like gun
powder in war, or steam in industry. In the hands of
power, and when the population is incapable or
servile, power will not fail to control it; it is irresisti
ble. Whatever ambition, avarice, usurpation, servil
ity, licentiousness, or pusillanimity need a shelter
will find it under its protecting influence. Besides, in
a large section of the United States, the flower of the
virile population had perished in the interstates war.
A large portion of its dominant population will be
disfranchised by the Third Section of the Article.
In that region there had been a subversion of all the
relations in society and a change in social order and
condition; while in the other section there had been
a great accumulation of capital and credit; shame
ful malfeasance had become very common and there
had been an effusion over the whole land of an alert,
active, aspiring, overreaching, unscrupulous class —
the foulest offspring of the war — who sought
money, place, and influence in the worst manner
and for purposes entirely mischievous. Their associa
tions were formed, not for such mutual advantage
as is consistent with law, but for the execution of
rapines that the laws prohibited. A wise and provi
dent statesman would have found in the facts
before him, and the fact that a vast development
was taking place constantly leading to other and

272 JOHN ARCHIBALD CAMPBELL
perhaps greater mutations in society, an occasion
for strenuous and patriotic exertion of Ms noblest
powers." Following a description of the character of the
men dominating the Government of the State he
said: "It would be too high and honorable a name
to impute this act and many others of the same
character to a result of ambition or usurpation, a
love of power, or to introduce some broad, though
erroneous, principle into the administration of the
Government. We believe it to be a mere trade be
tween the members of the Legislature and the cor
poration for the passage of the Act. The contents of
the Act were matters of supreme indifference. . . .
The value received by the members, not that to be
obtained by the public, dictated the legislation and
administration." x
Judge Campbell never applied to Congress to
have removed the political disabilities imposed upon
him by the Fourteenth Amendment, although as
sured that, upon his request, Congress would read
ily do so. He, therefore, took no other part in poli
tics than as a citizen interested in the welfare of his
State and country. In the contest for the electoral
vote of Louisiana in 1876, William Pitt Kellogg
sought to employ him, but he refused, saying: "I do
not want your case. I do not want your money." He
appeared with Judge Black and other eminent
counsel in behalf of the State before the Electoral
Commission. An extract from his argument is illus
trative of his power to deal in strong language when,
1 Lonn: Reconstruction in Louisiana, 42.

PERSONAL CHARACTERISTICS 273
in his judgment, the cause justified him in doing so.
Denouncing men who had seized the State Govern
ment and prostituted their power he said: "The
Court must observe, from what I have already ex
hibited of the laws of the State, that the State is in
possession of an oligarchy of unscrupulous, dishon
est, corrupt, overreaching politicians and persons
who employ the powers of the State for their own
emolument. There is no responsibility on their part
to any moral law or constitutional or legal obliga
tions. For years they have usurped the powers of the
State by means that have brought upon them the
condemnation of the Senate of the United States, of
the House of Representatives of the United States,
and, I may say, of the whole people of the United
States. These practices have been covered, immun
ity has been granted to them, because of their inter
course and connection with the polities and the
parties of the Union; without that connection they
would not stand in that State for a single hour. By
their association they have prostituted every mate
rial and endangered every moral interest within the
limits of the State." 1
Judge Campbell did not engage in controversy
regarding the results of the war nor the political con
ditions which prevailed in the South during the re
construction period. Like many of the wisest South-
em men he waited patiently for the passions of the
day to pass away, trusting that the patriotic men of
both sections would, with experience, come to a
clearer view and a better state of mind. The only
1 Report of the Electoral Commission.

274 JOHN ARCHIBALD CAMPBELL
expression of opmion upon the "negro question"
which he appears to have given is found in an inter
view, while in Louisville, Kentucky, in which he is
thus quoted: "As to the negro with the ballot in his
hands, Judge Campbell expressed no resentment,
nor feeling of reaction on the subject, but said it was
truly a sore matter in the present condition of the
South, because it rendered the efforts of what good
men remained, abortive to restore solvency to the
exchequer of the Southern States and to lead the
general mind to the consideration of new issues. He
intimated that in the States where the black vote
was representative, nothing important in either
Northern or Southern society had much chance to
be brought to the court of public reason."
Among the incidents illustrative of his character,
Major H. C. Semple tells of seeking to employ Mm
in behalf of a friend who had been sued for a large
amount on account of liability as stockholder in a
bank, prior to the Civil War. The Circuit Court had
decided the case against him. To Major Semple's
request that, as Pollard, his client, was now a poor
man, the Judge would accept a moderate retainer,
he responded, "No, I will not. I do not accept mod
erate retainers. I cannot afford it; but I cannot af
ford to accept any retainer from Pollard, if he is
poor. He attended upon me when I was married."
He won the case.1
On February 22, 1824, the Executive Committee
of the Alabama State Bar Association addressed to
Judge Campbell an invitation to deliver the Annual
1 Bailey vs. Pollard, 20 Wall. 520.

PERSONAL CHARACTERISTICS 275
Address at its meeting on August 7 of that year.
Following an expression of their appreciation of his
accomplishments as a jurist, eminence as a citizen,
and character as a man, the Committee concluded:
"The Association feels a special pleasure in know
ing that this choice is one on whom the esteem and
affection of the people of Alabama have so long
rested, that they have not ceased to claim him as
one of their own." Acknowledging the receipt of the
invitation, with expressions of grateful appreciation
of the senthnent m which it was extended, he said:
"I have been much affected by the terms of your
letter and it is difficult for me to make the answer it
merits from me. Fifty-four years ago to-day, I ar
rived at your city of Montgomery, at that date a
village, upon the opening of the Spring Term of the
Circuit Court. . . . The father of one of your Com
mittee moved for my admission and I thus became
a member of the Bar of Alabama."
Expressmg doubt of his ability, by reason of Ms
advanced age and physical condition, to appear in
person, he promised, if able, to prepare an address
and submit it to the Committee. This he did. The
address is devoted to personal and professional remi
niscences, an interesting historical review of events
in Alabama during the half -century, and closed with
fn appeal to the members of the Bar to "stand fast
m the liberty wherewith you became free, and
which the Constitution has been the witness. Be
constant and firm to insist that the State shall be
maintained in the fullness of the powers reserved by
the Constitution which was made by the people of

276 JOHN ARCHIBALD CAMPBELL
the States. The State is the repository where the
family is formed, and with this, the source of do
mestic peace, where religion, morality, reverence,
honor, human affections are implanted and in
struction most purely imbibed. It is the State
that most surely defends life, liberty, property,
family obligations and rights; it is the State that
teaches primary duties of manhood and which
shields and protects womanhood in her purity and
holiness." In this, his last public word expressive of love for
the State and admonition to her lawyers and citi
zens, he was consistent with what he had taught by
precept and example — Ms devotion to the State
and its place in the American political and social
system. For the integrity of the rights of the State
and in obedience to what he conceived his alle
giance to her, he was ready to sacrifice place and
position, to suffer misrepresentation and calumny
to keep faith with his political mtegrity, although to
his own Mndrance.
On February 13, 1884, Mrs. Campbell died. One
who knew husband and wife during the years of
their married life said of them: "Talented, amiable,
gracious, and good, she was a worthy helpmate of
such a man. Domestic life is sacred, but it is no dese
cration to say of Judge Campbell that he was never
too busy in his important duties to enjoy to the ut
most the delights of family mtercourse. Absorbed
in important and laborious occupations, he seemed
to the world cold and austere, but m his home life
he made use of his wonderful learning, his excellent

PERSONAL CHARACTERISTICS 277
taste, and his fine humor for the constant delight of
Ms family and familiar friends. He was a most affec
tionate and loving husband, a most kind, prudent,
and indulgent father." 1
1 Major H. C. Semple, in the Montgomery (Ala.) Dispatch.

CHAPTER XI
CONCLUSION
His home broken by the death of his wife, Judge
Campbell in 1884 changed his residence, moving to
Baltimore, Maryland, where two of his daughters
resided, and where he spent the remammg years of
his life. He did not seek or desire general practice,
but realizing his ideal of a completed professional
life, accepted retainers and argued m the Supreme
Court of the United States such important causes
as came to him. His last argument was made in the
case of New Hampshire vs. Louisiana, mto wMch he
put the learnmg and reflection of a lifetime, winning
not only added reputation, but establishing, as the
unanimous opmion of the Court, a construction of
the Constitution which protected the States from
liability to suit without their consent, thus placing
their credit upon the basis of their reserved political
sovereignty and good faith. No man believed more
strongly that it was the duty of States as well as
citizens to discharge their obligations, but Judge
Campbell well knew that the good-will between the
several States so essential to their harmony and
peace would have been endangered if the Court had
sustained a State in becoming the collecting agency
of the debts of other States. The prevention of this
he regarded as the highest service which he had ren
dered to the States and a fittmg conclusion of more
than fifty years of professional life.

CONCLUSION 279
The men of his day have largely passed away;
those who, either m association or in opposition,
were his comrades at the Bar have, with but few
exceptions, been gathered to their fathers. We have
from one who occupied the relation of friend and
pastor, a description of him during those years when
interest m things pertammg to fife was losing its
hold and mterest in those of eternal value was grow
ing stronger. At the Memorial Meeting of the Bar
of the Supreme Court, upon the suggestion of Sena
tor Edmunds, Rev. Arthur Chilton Powell, the Rec
tor of Grace Church, of which Judge Campbell was
a commumcant, was invited to speak. He said: "It
was my privilege to know hma in the latter days of
his life, to enter somewhat mto the fruition of his
hopes and his plans, to see the cuknmation of his
character, to observe the richness and the ripeness,
the beauty and dignity of his sterling, honorable old
age, and, I must say, and I take pleasure in saymg
it here to those of you who knew him, perchance, m
his public career, m those stormy days when con
flict and antagomsms prevailed, that of all men
whom I ever saw, it seems to me that no one pos
sessed in himself so much purity, so much conscien
tiousness, so much rectitude, and, at the same time,
so much Christian simplicity, as did the honorable
man whose memory we are here to commemorate.
... In the province of his own home, perhaps no
man was more conspicuous for those sterling and
those common graces and gifts that mark our high
est and our most characteristic National manhood.
He was a man of strong domestic nature, a man of

280 JOHN ARCHIBALD CAMPBELL
pure and holy affection, a man whose life, notwith
standing its remarkable activity, seemed to find its
joy and inspiration in the quietude and seclusion of
his own home. It was, indeed, not only a pleasure,
but a privilege, to enter that charmed circle where
this rare old man, with his frosted head, with his
genial manner, and with his mild grace, bade you
welcome to enjoy that which he most loyally dis
pensed, the kindness and generosity and, at the
same time, the tenderness of ripened manhood. . . .
He was ashamed of nothmg save perchance of wrong
and dishonor, which never, even in his most public
days, ever attached themselves to him, and what
ever may have been his course regarding which
there may have been diverse opmions, m his own
conscience and before the bar of his own soul he
pursued the straight and narrow path of high, digni
fied, and consecrated manhood." x
In 1889 an mvitation was extended by the Court
to Judge Campbell to attend the centennial celebra
tion of the mauguration of the Federal Judiciary.
When commumcated to him by the Marshal during
his last days, and while in his last ilMess, he re
sponded: "Tell the Court that I join daily in the
prayer, 'God save the United States and [its] hon
orable Court.' " These were his last words, addressed
to the Supreme Court of the United States.
Judge Campbell died, March 12, 1889, at his resi
dence in Baltimore, at the age of seventy-eight. The
"Baltimore Sun," announcing his death, said: "He
was a devout Christian, a diligent student of the
* Memorial Addresses — Justice Campbell, 16.

CONCLUSION 281
Bible and of theology, in which he had collected a
large library. He was gentle m his character and
domestic in his taste — devoted to his family."
Expressions of sympathy for his family and ap
preciation of the character and services of Judge
Campbell came from Chief Justice Fuller and others
in public and private station. The press of Balti
more, New Orleans, and Mobile contamed apprecia
tive tributes to his memory. At his funeral from
Grace Church, Balthnore, Justice Lamar attended
as the representative of the Supreme Court, and
among the pallbearers were Senator James L. Pugh,
of Alabama, Senator Randall L. Gibson, of Louisi
ana, Colonel Walter L. Bragg, of Alabama, and
Major R. M. Venable, of Baltimore. Hon. William
Pinkney Whyte and other members of the Bar, and
representatives of all walks of life from Baltimore
and other cities, did honor to the memory of the
great lawyer and judge. The remains were deposited
in the family lot in Greenmount Cemetery.
Judge Campbell's only son, Duncan Green Camp
bell, died several years prior to the death of his
father. He left survivmg four daughters, Mrs. Hen
rietta Lay, widow of Colonel George W. Lay; Mrs.
Kate Groner, wife of Colonel V. D. Groner, of Nor
folk, Virginia; Mrs. Clara Colston, wife of Captain
Frederick M. Colston; and Miss Anna Campbell, of
Baltimore. At a meeting of the Bar of the Supreme Court,
held on April 6, 1889, in Washington, Mr. George
Ticknor Curtis was, upon motion of Mr. George F.
Edmunds, called to the chair. Mr. William A.

282 JOHN ARCHIBALD CAMPBELL
Maury, in presenting resolutions, prepared by Mr.
Augustus H. Garland, former Attorney-General,
lamentmg the passmg away, within "the span of
the same twelvemonth," of Chief Justice Waite,
Justice Stanley Matthews, and John Archibald
Campbell, said: "When such men are laid in the
dust there comes a feefing of despair, for it is impos
sible that they should have left behmd them one
tithe of what their capabilities could have acMeved.
As Lord Coke says somewhere in his lamentation
over the death of Littleton, a great and learned man
is a long time m the making, and when he dies much
learning dies with him."
Referring to his immense labor in acquiring the
vast store of knowledge, in the civil and common
law, he said: "It is well for the younger members of
the profession to remember that the success of
Judge Campbell at the Bar was the result of patient,
laborious mdustry. He went to the bottom of every
thing that required his attention and sMank from
no drudgery that was necessary to accomplish his
purposes." George F. Hoadly, referring to Judge Campbell's
appointment to the Bench and the eventful inci
dents in his career, said: "Appointed to the Bench
when only forty-one years of age, at the solicitation
of the Judges of the Court, the most honorable
method in which such an appointment could come,
Judge Campbell lived twenty-eight years beyond
the date of his resignation, lived to see Ms country
reunited and the great Nation m whose jurispru
dence he took such patriotic pride, rejuvenated and

CONCLUSION 283
renewed. Notwithstanding the years passed in the
uncongenial service of Assistant Secretary of War
of the Confederate States, his later life was not sor
rowful in contemplation of the fact that the hopes
of his warlike career, if such it may be called, had
been frustrated, and that all portions of the country
were again united under the ancient banner wMch
he once represented as a member of the Court."
Judge Hoadly's estimate of Judge Campbell's
equipment for and service on the Bench is of special
value because of his professional learnmg and ex
perience. He said: "He combmed, m an unusual
degree, the knowledge of the Roman law and the
common law. Familiar with the laws of Louisiana
and Texas and the civil law system, which is the
foundation of their jurisprudence, he knew, as well,
the common law which prevails m the other States.
How well he performed his duties, how fully he ful
filled the expectation of the members of the Court
who solicited his appointment, I need not say.
Nearly thirty years have passed smce he wrote his
last opinion m this Court, but we all know him, as
history has recorded him, as a grave, serious, care
ful, clear, logical, persuasive, expounder of the law."
William H. Evarts bore generous testimony to
Judge Campbell's character and judicial service,
saying: "His repute had long been established with
the Southern Bar very clearly as that of an emment
lawyer in the sense of judicial power and of philo
sophical and constitutional accuracy and strength.
After takmg his seat here he commended himself to
the Northern Bar and to all the forensic disputants

284 JOHN ARCHIBALD CAMPBELL
before this Court. I think the Bar, therefore, felt
it with a sensible regret and as a withdrawal of
strength from this Court, when he was no longer
counted among its Judges. If that opinion was en
tertained at that time, I am quite sure I am right in
saying that, m the observation by the profession
and by the public of Mr. Campbell's career, as a
member of the Bar, on his return to practice in this
Court, they felt even an increased regret that Ms
great powers and his supreme mtegrity of nature
and mtellect had been permanently lost to the
Bench." George Ticknor Curtis knew and practiced at the
Bar of the Supreme Court while Judge Campbell
was one of its members. He also knew, better than
any other livmg man, the esthnate m which he was
held by his brother Judge Benjamin R. Curtis. His
remarks upon specific cases and other phases of the
work of the Court, and Judge Campbell's relation
to them, have been quoted. Concluding his interest
ing address, he said: "At the close of the Civil War,
Judge Campbell resumed the practice of his profes
sion and he has been a very conspicuous figure at
this Bar for many years. He ranks with the greatest
advocates of our time, not for eloquence, not for
brilliancy, not for the arts of the rhetorician, but
for those solid accomplishments, for that lucid and
weighty argumentation, by which a Court is in
structed and aided to a right conclusion. The day of
mere eloquence has passed away from this forum.
What is effectual here now is clearness of statement,
closeness and accuracy of reasonmg, and the power

CONCLUSION 285
to make learning useful in the attainment of judi
cial truth. These accomplishments were possessed
by Judge Campbell in a very uncommon degree. He
has lived to a great age, and in the whole of his long
life there has never been a public act or utterance
that is to be regretted."
These tributes were from the most emment states
men and lawyers of their generation, none of whom,
except Mr. Maury, were from the section of the
country in which Judge Campbell was born and
spent his life; nor were they m sympathy with his
political opinions; they had lived through and acted
their part in no mean places in the stirring events in
which he figured in opposition. They fix the place
which he held m their estimate as a lawyer, judge,
and citizen. The resolutions, attesting their "ad
miration and appreciation" of his "great career as a
leading practicing lawyer, and as a judge of the first
rank," and "in commemoration of his many public
and private virtues and that modesty and simplic
ity which were the chaste setting of his great mtel-
lect and learning," were unanmiously adopted and
presented to the Court by the Attorney-General,
with appropriate remarks. In accepting them and
directing that they be spread upon the record, Chief
Justice Fuller said: "The Court recognizes m the
decease of Mr. Justice Campbell the departure of an
eminent citizen, who through his power of intellect;
profound learning, and unremitting diligence, cou
pled with mtegrity of mind and sincere love of jus
tice, deservedly achieved high reputation as a jurist
and reflected corresponding credit upon this Bench

286 JOHN ARCHIBALD CAMPBELL
during the years he adorned it. His accession here
had been preceded, as his regretted retirement was
followed, by distmguished service m the legal pro
fession." Thus is the record of his Me and work as a mem
ber of the Bar and of the Court, m this tribunal of
National jurisprudence, made and perpetuated for
all time.
In the State and Federal Courts of New Orleans
no less generous tributes were paid to Judge Camp
bell. Resolutions were drawn and presented by
E. T. Merrick, Thomas L. Bayne, Carleton Hunt,
Edgar H. Farrah, and other eminent members of the
Bar, expressive of their appreciation of his charac
ter, learning, and services. Hon. Thomas J. Semmes,
in presentmg them to the Circuit Court of the
United States, delivered an address justly described
as "of classic precision and eloquent diction," re
viewing the history of Judge Campbell from his
birth to the end of his career.
Mr. Charles Parlange, District Attorney, m mov
ing acceptance of the resolutions by the Court, thus
concluded his eloquent tribute: "As long as the
judicial records of this country shall be preserved,
as long as the tradition of emment deeds by eminent
Americans shall be handed down, as long as the an
nals of the greatness of America shall be perpetu
ated, so long shall the name and fame of John Archi
bald Campbell endure."
Mr. Thomas L. Bayne in a singularly happy de
scription of Judge Campbell, referrmg to his social
and domestic relations, said: "Here he was as ten-

CONCLUSION 287
der and gentle and affectionate as a woman. He
neither knew nor saw any wrong m those whom he
loved, and in return those who were nearest to hma
loved Mm past all understanding. In early life he
had promised his mother that he would, each day of
his life, read a chapter in the Bible; this he fulfilled.
I remember to have seen on his table the Bible used
by him, with a regular memorandum made therein
of the number of times he had read it. He was as
familiar with the Old and New Testament as he was
with the alphabet. Commenting upon one of the
new books upon what is denominated 'modern
Christianity,' he pomted to his large library of
books on religious subjects and said: 'I have read
all of these, but after all, I return to the teachmgs of
Jesus CMist as given in the New Testament and as
practiced by the plain and honest people, with
whom I passed the earlier years of my life.' "
Mr. Bayne closed his remarks, as follows: "Great
lawyer, wise judge, earnest patriot, able statesman,
affectionate friend, devoted father, Christian gen
tleman. We shall not soon look upon his like agam."
Speakmg for the Court, Judge Bilfings, following
a tribute to his learnmg, mdustry, and service on the
Bench, said: "At better advantage, perhaps, than
at any other period of his life did he show his in
domitable character and the splendor of his talents
when, at the close of the war, at the age of fifty-five
years, houseless and penniless, without occupation
— all aids to and even connection with it destroyed
— he addressed himself to building up anew a pro
fessional business. Like the fabled phoenix, he rose

288 JOHN ARCHIBALD CAMPBELL
from his ashes,, and on such pinions that the flight
of his declining years was higher than that of his
early manhood. By his natural gifts and his toil, as
if he had been two distinct beings, he twice acMeved
fame and success at the Bar, which would have satis
fied the most ambitious man on either continent:
the last time when he was no longer sustained and
borne on by the tireless, adventurous spirit of a boy,
but was compelled to rely upon the heroic purposes
withm him, so strong that they could not be chilled
by disappointment nor chilled by age. ... He was
as tender as he was true, and no one whom he loved
ever approached him in anxiety or sorrow without
losing something of his personal suffering in being
made to feel how consistent with gentlest kmdness
was true greatness and how little foundation there
was for the creed of small men that to be gifted in
mtellect one must be hard in feelmg."
These tributes by men with whom for the last
twenty-five years of his life he was in close associa
tion justify the words in which they describe his
career: "His record is clear, his success is a triumph.
His ambition m Me was not m the fine of political
preferment, but rather to be known as a great and
successful lawyer — to do good thmgs and to
achieve great thmgs. He loved the profession of the
law. He pursued Ms plan with constancy and with
concentration of purpose rarely exhibited. His in
tellect was massive, his learning profound, Ms in
stinct judicial, his judgment sound. With his mas
sive and solid intellect he combined the weight and
force of an irreproachable character. With a femi-

CONCLUSION 289
nine sense of propriety he was tender to the unfortu
nate, charitable to the afflicted, gentle to the weak.
In the courts and tribunals his influence was vast.
Upon the Bench his administration of justice was
prompt, pure, and luminous."
It is a source of regret that, fike so many South
ern men during the last century, Judge Campbell
did not preserve his correspondence. He left no let
ters received, nor copies of those written by him,
other than those referred to in the foregoing pages,
nor did he keep a diary or journal. Except for his
service during two sessions in the Legislature of
Alabama, during the early years of his life, he nei
ther sought nor accepted political office. As said by
him in his letter to the Committee of the State Bar
Association, prior to his appointment to the Bench,
he practiced his profession without "relaxation or
diversion." In the same letter he wrote: "I have
paused to recollect the names which were once so
familiar and so endeared by familiar and friendly
connection. I find that the Judges of the Supreme
and Circuit Courts, the Chancellor, the members of
the Bar at Montgomery and the Supreme Court,
during my attendance upon the Courts, no longer
remain. The one event that happeneth to all hath
happened to them alike, but I should regret to think
the memory of them is forgotten." He pays generous
tribute to those with whom he was associated, and
"informs" those who have come after them of the
debt "owed to those who established the dominion of
law and the course of legal procedure in Alabama."
His duties on the Bench removed him from social

290 JOHN ARCHIBALD CAMPBELL
and professional association with those among
whom he had spent the first twenty years of Ms pro
fessional life. As we have seen, he was not m sympa
thy with the political leaders of the State during the
years immediately precedmg the Civil War, and at
its close found Ms field for labor in another State.
His professional labors during his residence in New
Orleans gave him but little time for recreation or
for reestablishing the relations severed by the war
and its results. That he retamed the esteem and
friendship of the descendants of the friends of his
young manhood is seen m the assurance by the Com
mittee representing the State Bar Association, when
he had reached the age of seventy-tMee years, that
he was "one on whom the esteem and affection of
the people of Alabama have so long rested, that
they have not ceased to claim him as their own."
After his death a Me-size oil portrait of Judge
Campbell was presented to the Circuit Court at
Montgomery with a generous tribute, by Major H.
C. Semple, who "had known him for forty years
and ever esteemed it an honor that he had enjoyed
his intimate friendship."
An estimate of Judge Campbell's judicial labors
must be based upon a study of his opmions and the
judgment of his associates, and of the Bar practic
ing before the Court. An effort has been made, by
liberal quotations from Ms opmions, to afford an
opportunity to those interested in his career to form
such an estimate. That Judge Campbell was, "as
history has recorded him, a grave, serious, careful,
clear, logical, persuasive expounder of the law, and

CONCLUSION 291
as such his fame will go down to generations m the
judgment of the great lawyers with whom he was
associated," and that, "coupled with mtegrity of
mind and smcere love of justice, he deservedly
achieved high reputation as a jurist and reflected
correspondmg credit upon the Bench during the
years he adorned it," was declared by Chief Justice
Fuller, who presided at the meeting of the Bar of the
Supreme Court of the United States April 6, 1889,
on the occasion of the death of Judge Campbell.
While many, probably a majority, of the opm
ions m which Judge Campbell dissented from the
majority of the Court, extendmg and eMarging the
jurisdiction of the Federal Courts, have not pre
vailed, he was in agreement with a school of states
men and jurists, eminent for learning and wisdom,
who believed that it was by a strict construction of
the grants of power in the Federal Government that
not only the reserved rights of the States, but the
civil and political liberty of the citizen were best
protected. The opposite view prevailed, for reasons
which enter into the history of the Republic during
the latter years of the nineteenth century, and is
now held not only by Northern, but as strongly by
many Southern statesmen and jurists. If there be
any counter-current of thought at tiiis day, it is to
be found m New England rather than m the South.
Some years since one of the most scholarly and ac
complished citizens of Massachusetts, a descendant
of the second and sixth Presidents, referring to an
expression used by a Southern man in a public ad
dress, said: "I see that you term State sovereignty

292 JOHN ARCHIBALD CAMPBELL
an 'overly debated question.' In this I cannot quite
concur. On the contrary, I think it is somewhat in
cumbent now upon all persons who have occasion to
refer to that subject to tMow great emphasis on the
original organization of the Umted States, including
State sovereignty. The tendency now is to the other
extreme. The centrifugal action has worn itself out,
and the centripetal action is now makmg itself felt,
and that to an inordinate degree." Referrmg to a
then recent decision of the Supreme Court he wrote:
"It goes a long way in the direction of conceding to
the National Government all powers not expressly
inhibited, thus exactly reversing the original rule."
Judge Campbell contended for the preservation
of the ancient landmark, and who may say that in
the future those who seek to restrain the'exercise of
centralized power will not find support m the vigor
ous thought and language of his dissenting opinions?
His efforts on the three occasions referred to, to
stay the current of political and sectional passions,
and either prevent civil war or to bring it to an end,
are, for the first time, told m the "record" made by
Mmself at the time. On each occasion, either from
ignorance of the facts or for political reasons, both
have been misrepresented and misconstrued. It is
not the purpose of this work to mvite controversy
regarding the motives of those with whom he was
associated, but to permit Judge Campbell to tell the
story in his own way. Whether Judge Nelson, Judge
Campbell, and Mr. Seward were correct m thinking
that, by surrendering Fort Sumter m April, 1861,
the secession of the border States would be pre-

CONCLUSION 293
vented and the return of the secedmg States to the
Union secured, is of necessity conjectural. It is
probable that the conflict was irrepressible and that
only by civil war could slavery, the cause and oc
casion of the controversy, be destroyed.
Judge Campbell's connection with the Hampton
Roads Conference has been told by himself and calls
for no further discussion. It is manifest that he did
not anticipate any practical result from it, unless
Mr. Davis was. willing to enter upon negotiations
resulting in a return, by the secedmg States, to the
Umon, and this was, from his pomt of view, im
possible. As said by Mr. Hunter, there was much
to be said on both sides of the question. Wars are
seldom brought to an end until the weaker belli
gerent acknowledges defeat. It is probably true
that inconclusive war seldom brings permanent
peace. It was difficult for a man of Judge Camp
bell 's judicial temperament to recognize the ne
cessity for the Southern people to be subjected
to the fate which he saw awaited them. Whether
Mr. Davis or Judge Campbell saw more clearly
what was the better course to pursue on Febru
ary 5, 1865, admits of much debate. Mr. Davis
regarded Mr. Lincoln's terms as a demand for an
"unconditional surrender," and this he could not
consider. Judge Campbell regarded them as a basis
for further negotiation, resulting m restoration of
the Southern States to the Union. The difference
was irreconcilable, and nothing remained to be done
but await the result, which both did, and pursued
with constancy and courage the course which their

294 JOHN ARCHIBALD CAMPBELL
sense of duty dictated. The two men were tempera
mentally different, and wMle they were not m agree
ment m regard to the course wMch should be
adopted at the beginnmg or as the end of the
struggle approached, there is no evidence that either
questioned the patriotism of the other.
After the fall of Richmond and the surrender of
General Lee, both Mr. Lincoln and Judge Campbell
sincerely desired to save the people of the South
from the fate which threatened them. That the plan
proposed by Mr. Lmcoln and concurred m by Judge
Campbell, if successful, would have brought earlier
restoration of the seceding States, and would have
saved the country from the dark days of Con
gressional reconstruction, is now conceded by all
thoughtful men. The record made by Judge Camp
bell of the conversations with Mr. LmcoM and the
course pursued by himself vmdicates, not only the
purity of his motive, but the wisdom of the counsel
which he gave and the action which he took. But
for the mterference of the radical members of the
Cabinet and the Senate, rendered successful by the
assassination of the President, a different and
brighter chapter m our history of those years would
have been written; but, as said by Mr. Curtis: "We
can rejoice that from the turmoil and hazards of
that trying period, thanks be to God, the Constitu
tion of the United States has come out of all its perils
m a far better condition than could have been an
ticipated for it. It is no longer a subject of sectional
controversy." Of Judge Campbell he said: "He has
lived to a great age, and m the whole of Ms long life

CONCLUSION 295
there has never been a public act or utterance that
is to be regretted."
Whatever men of opposmg opmions in respect to
the wisdom of Judge Campbell's course on these
tMee occasions may think, none will doubt the trath
of the record made by him and set out in the fore
going pages, nor deny that he was prompted by pa
triotic motives and a desire to serve not only the
Southern people, but to promote the welfare of the
entire country. As he wrote at the time of making
the record: "It contains the 'Facts of History.'" In
regard to his motive repellmg the charge made by
Speed and other enemies, he wrote: "It was for the
people I made intercession. I counseled the con
querors to use magnanimity, forbearance, kindness
for his own honor and advantage, not especially for
mine. I asked no boon for myself. ... I have a right
to be exempt from all unjust censure and from all
misrepresentation of my connection with these
events and from all unjust accusation."
The truth of these words and the justice of this
demand are manifest. That both would have been
admitted and secured by Mr. Lincoln if he had
lived, none can doubt. Mr. Evarts truly said, when
Judge Campbell had passed away: "There is no
danger that Mr. Campbell's public relations to the
country at large, wMch the Civil War produced, will
affect the judgment of our profession, and through
them the people of the whole country, in their es
teem of the value of his great services and of those
traits of character and lines of conduct that entitle
him to be permanently remembered."

TABLE OF CASES
Ableman vs. Booth, 2 Howard, 506  75
Allen vs. Newberry, 21 Howard, 244  50
Attorney-General vs. Louisiana, 27 La. Ann. 138  254
Bailey vs. Alabama, 219 U.S. 219  233
Bailey vs. Pollard, 20 Wall. 520  274
Bank vs. Devaux, 5 Cranch, 61  27
Butchers' Union vs. Crescent Co., ill U.S. 746  229
Burr j». Duryee, 1 Wall. 531  25
Chisholm vs. Georgia, 2 Dallas, 419  244
Christ Church vs. Philadelphia, 24 Howard, 300  35
Collins vs. Hallert, 10 Howard, 174  11
Corfield vs. Coryell, 4 Wash. (C.C.) 371  224
Corning vs. Iron Factory, 15 Howard, 451  83
Dartmouth College Case, 4 Wheat. 518  228
De Lovio vs. Boit, 2 Gall. (C.C.) 398  38
Dodge vs. Woolsey, 18 Howard, 331  31
Florida 88. Georgia, 17 Howard, 478  51
Forsyth vs. Reynolds, 15 Howard, 561  83
Fretz vs. Bull, 12 Howard, 466  41
Gaines vs. Relf, 12 Howard, 474  11
Gaines vs. Hennin, 24 Howard, 615  14
Gaines vs. New Orleans, 6 Wall. 642  14
Garland, Ex Parte, 4 Wall. 333  208
Jackson vs. Ludeling, 21 Wall. 616  236
Jackson vs. Magnolia, 20 Howard, 296  41
Kennett vs. Chambers, 14 Howard, 24  92
Kentucky vs. Denison, 24 Howard, 66  77

298 TABLE OF CASES
Lafayette 8S. Kenton, 18 Howard, 197  90
Lehigh Mining & Manufacturing Co. vs. Kelly, 160 U.S.
330  31
Louisiana vs. Pillsbury, 105 U.S. 278  269
Louisville, C. & C. R.R Co. vs. Letson, 2 Howard, 497 .. . 28
McDonogh 8S. Murdock, 15 Howard, 564  21-24
Marshall vs. Baltimore & Ohio R.R., 16 Howard, 314  27
Memphis & L. R. R.R. Co. vs. Southern Express Co., 117
U.S. 1  252
Munn vs. Illinois, 94 U.S. 113  251
New Orleans vs. Gaines, 131 U.S. 191  15
New York vs. Louisiana, 108 U.S. 76  242-49
New Orleans Gas Light Co. vs. Louisiana Light Co., 115
U.S. 650  254
O'Reilley 88. Morse, 15 Howard, 62  24
Parsons vs. Jackson, 99 U.S. 434  238
Piqua Bank 8s. Knoop, 16 Howard, 376  34
Scott vs. Sanford, 19 Howard, 393  54
Slaughter-House Cases, 16 Wall. 36  211
Smith 8S. Swormstedt, 15 Howard, 288  24
Spies vs. Illinois, 124 U.S. 131  230
State vs. Manuel, 20 N.C. 601  60
Stone vs. Farmers Loan & Trust Co., 116 U.S. 307  250-51
Strader vs. Graham, 10 Howard, 82  61
Taylor vs. Caryll, 20 Howard, 583  47
Tennessee Bond Cases, 114 U.S. 663  250
The Commerce, 1 Black, 578  50
The Genesee Chief, 12 Howard, 443  40
The Lottawanna, 21 Wall. 558  50
The Thomas Jefferson, 10 Wheat. 429  37
Tonnage cases, 12 Wall. 204.  208
Twining vs. New Jersey, 211 U.S. 78  230
United States vs. Cruikshank, 92 U.S. 542  230

TABLE OF CASES 299
Waring vs. Clarke, 5 Howard, 451  37, 38
Waring vs. Mayor, 8 Wall. 110  208
Winans vs. Denmead, 15 Howard, 330  25
Wright vs. Kentucky R.R., 117 U.S. 1  254
i
York & M. Line R. Co. vs. Winans, 17 Howard, 30  36

INDEX

Adams, Charles Francis, 156.
Admiralty jurisdiction of the Fed
eral Courts, 37-51.
Alabama, ordinance of secession
adopted by, 119; Judge Camp
bell's statement of his efforts to
avoid secession of, 138—40; ad
dress of Judge Campbell pre
pared for the State Bar Associa
tion, 274-76.
Anderson, Frank, case against,
100.
Anderson, General Joseph R., 178,
180, 184.
Andrews, Charles, 82.
Badger, George E., 24, 83; nomi
nation to Supreme Court of
United States not confirmed, 16;
on Judge Curtis and Judge
Campbell, advocating increase
of compensation of Justices, 18;
on the judicial courage of Judge
Curtis and Judge Campbell, 100.
Baldwin, John B., on his interview
with President Lincoln, 146.
Baldwin, Governor Simeon, on
legal fictions, 31.
Ballentine, H., 149.
"Baltimore Sun," the, tribute of,
to Judge Campbell, 280.
Bancroft, George, his attitude
toward Confederates, 157.
Bartlet, Sidney, 253.
Bayard, Senator, 157.
Bayne, Thomas L., 286; tribute of,
to Judge Campbell, 286, 287.
Beard, Professor Charles A., on
the Fourteenth Amendment,
230.
Bench, the, and the Bar, 204, 205.
Benjamin, Judah P., 21, 83, 89.
Bentham, on legal fictions, 30.
Bermudez, Edward, 210.

Biddle, George W., quoted, 76, 80.
Billings, Judge, tribute of, to
Judge Campbell, 287, 288.
Black, Jeremiah S., 74, 210, 241;
Attorney-General, 82; sustains
Judge Campbell's statement rel
ative to his efforts to prevent
secession, 140.
Blaine, James G., on the Slaugh
ter-House decision, 229.
Blair, Frank, 164.
Blair, Montgomery, 58.
Blatchford, Judge, 249.
Booth, Sherman, the case of, 73-
75.
Boston and the Fugitive Slave
Law, 92, 93.
Botts, John Minor, statement of,
relative to the evacuation of
Fort Sumter, 146.
Boutwell, Senator, on the Slaugh
ter-House decision, 229.
Bradley, Judge, and the Slaughter-
House cases, 210, 224, 226-28,
233; in Jackson vs. Ludeling,
239.
Bragg, Colonel Walter L., 281.
Brent, Robert J., 21, 83.
Buchanan, James, letters of Stan
ton to, concerning the Seward-
Campbell negotiation, 140-42.
Burgess, Professor John W., on
the Slaughter-House decision,
230.
Burr vs. Duryee, 25, 26.
Calhoun, John C, Judge Camp
bell's estimate of, 263.
Campbell, Miss Anna, daughter of
Judge Campbell, 281.
Campbell, Duncan Green, son of
John Archibald (1), 3-6.
Campbell, Duncan Green, son of
John Archibald (2), 207, 281.

302

INDEX

Campbell, J. Mason, 83.
Campbell, John, 3.
Campbell, John Archibald (1), son
of John, 3.
Campbell, John Archibald (2), an
cestry, 1-6; birth and education,
6, 7; early career and admission
to the bar, 7; marriage, 8; early
career in Alabama, 8, 9; in the
Legislature of Alabama, 9; his
personal appearance and man
ner, 9, 10; his title to fame, 10;
his studies, 10, 11; in the Su
preme Court of Alabama and
the Circuit Courts, 11; cases ar
gued before the Supreme Court
of the United States, 11; his ar
guments in the Myra Clark
Gaines case, 11-15; refuses ap
pointment to Supreme Court of
Alabama, 16; appointed to Su
preme Court of the United
States, 17; appointment of, gen
erally approved, 17, 18 ; his esti
mate of the personnel of the
Court, 18, 19; his arguments in
the case of The Executors of
John McDonogh vs. Mary Mur
dock and others, 21-24; in the
case of the Methodist Episcopal
Church, 24; in the case of the
Morse telegraph, 24; his opinion
in Winans us. Denmead, 25-27;
his hostility to monopolies, 25;
his attitude toward the enlarge
ment of the jurisdiction of the
Federal Courts in cases involv
ing corporations, 27-34; on the
sovereignty of the people, 33,
34; on public grants, 34, 35; on
grants of immunity from taxa
tion, 35, 36; on attempts at mo
nopolies and immunities, 35; on
hability of railroad for acts of
its lessee, 36; his position on
admiralty causes, 37, 42-47, 49,
50; opposes intervention of At
torney-General in case between
States, 51, 52; his assertion of
judicial independence of execu

tive interference, 52, 53 ; his atti
tude in the Dred Scott case, 61-
63 ; his opinion in the Dred Scott
case, 61-63; his understanding
of the course pursued by the
Court in the Dred Scott case,
66-68; on relations of opposing
judges in the Dred Scott case,
69; emancipated his household
slaves, 71; letter on resignation
of Judge Curtis, 81 ; alive to the
dangers of the time, 85; not a
dissenting Judge, 85, 86; a strict
constructionist, 86, 291, 292;
character and style of his opin
ions, 87.
On the Southern Circuit, 89;
his promptitude in dispatching
business, 90; charges of, to grand
jury regarding the neutrality
laws, 91-93, 100, 101; his refer
ence to events in Boston in con
nection with the enforcement of
the Fugitive Slave Law, 93 ; and
the Quitman case, 95-99; his
courage as a Judge, 100; declines
invitation to public dinner ten
dered him in Mobile, 101, 102;
charge of, to grand jury on slave
trade, 102, 103; his charge ap
proved by papers, 103, 104; gave
careful study to the slavery
question, 104, 105; words of, on
the duty of the Southern people,
105-07; member of Convention
of Southern States held at Nash
ville, June 6, 1850, 108; avoided
politics, 109; his views on the
election of Lincoln, 109-12; his
views in respect to the rights of
the Southern people, 112; advo
cates constitutional settlement
of the slavery question, 114;
correspondence with Franklin
Pierce concerning the slavery
question, 114-16; his memoran
dum of conversation on the slav
ery question, 116-18; his views
on secession, 118, 119; his part
in negotiations relative to evacu-

INDEX

303

ation of Fort Sumter, 122-32;
letters of, to Seward concerning
Sumter, 133-38; his statement
of his efforts to prevent seces
sion and avert war, 138-40; let
ters of Stanton to Buchanan on
the negotiations of, with Seward,
140-42; the sincerity of his ef
forts to preserve peace, 142;
varying views as to the nego
tiation of Seward with, 142—
48; letter wrongly ascribed to,
145. Resignation from Supreme
Court, 149; regrets at his resig
nation, 150, 151 ; his resignation
a great sacrifice, 152; forms
partnership in New Orleans,
152 ; justification of his action in
resigning, 152—56; believed in
reserved, inalienable right of
secession, 154; his duties as As
sistant Secretary of War under
the Confederacy, 158-61 ; efforts
to secure peace by negotia-
tion,161-63; " Memorandum " of
Hampton Roads Conference pre
pared by, 164, 169; his recol
lection of what was said at the
Conference, 166; urged negotia
tion on basis of Lincoln's propo
sitions, 171, 172; recommenda
tions of, as to action by the Gov
ernment, 172; hands resolution
to Graham, 173 ; tribute of Gra
ham to, 173; his final effort as
peacemaker, 174; his conversa
tions with Lincoln, 175-77; his
letter of April 7, 1865, 178; re
view of his conduct in connec
tion with the assembling of the
Virginia Legislature, 180-87;
letter addressed to Mr. Greeley,
188-92; arrested, 192; cause of
his arrest, 192, 197; letters to
Hunter and Speed, 192-96; re
leased from prison, 199; his
views on the results of the war,
200. His position at the end of the

war, 201, 204; tributes to, as
member of the Bar, 205; settles
in New Orleans, 206; in partner
ship with Spofford and Duncan
G. Campbell, 207; appears for
first time in Supreme Court of
United States, 208; and the
Slaughter-House cases, 208-35;
and the Jackson vs. Ludeling
case, 236-41 ; and the State-bond
coupon case, 241-50; and the
Tennessee Bond cases, 250, 254;
and the Railroad Commission
cases, 250-52; and the Express
Company cases, 252-54; and
the Louisiana Gas Company
case, 254-56.
His personal appearance, 257,
260; his passion for labor, 257,
258; anecdote about his appear
ance and manner, 258, 259; de
scription of, from the "Philadel
phia Record," 260, 261; charac
teristics of, 261, 262; his esti
mate of Calhoun, 263; his es
timate of Senator Hunter,
264; incident concerning wife of
James M. Mason told by, 264,
265; his estimate of William A.
Graham, 266; his estimate of
Chief Justice Eustis of Louisi
ana, 266; samples of his oratory,
266-72; took no part in politics
after the war, 272 ; his denuncia
tion of the Louisiana State Gov
ernment, 273 ; on the negro ques
tion, 274; incident of his refusing
a retainer, 274 ; address prepared
by, for the Alabama State Bar
Association, 274^76; his devo
tion to the State, 276; death of
his wife, 276.
Removal to Baltimore, 278;
his last argument, New Hamp
shire us. Louisiana, 278; tribute
of Rev. Arthur Chilton Powell
to, 279, 280; his last words, ad
dressed to the Supreme Court,
280; death, 280; funeral of, 281;
resolutions on, for Supreme

304

INDEX

Court, 282, 285; his surviving
daughters, 281; tribute of Wil
liam A. Maury to, 282; tribute
of Judge Hoadly to, 282, 283;
tribute of William H. Evarts to,
283, 295; tribute of G. T. Curtis
to, 284; tribute of Chief Justice
Fuller to, 285, 291; resolutions
on, for Courts of New Orleans,
286-89; tribute of Charles Par-
lange to, 286; tribute of T. L.
Bayne to, 286, 287; tribute of
Judge Billings to, 287, 288; left
no correspondence, diary or
journal, 289; tribute of, to his
former associates, 289; his time
filled by professional duties, 290;
estimate of his judicial labors,
290, 291; theee times misrepre
sented and misconstrued, 292;
consideration of his views as to
terms of peace with the North,
293; consideration of his con
versations with President Lin
coln, 294; acted from patriotic
motives, 295.
Campbell, Mrs., wife of John
Archibald, death, 276.
Campbell, John W., 7.
Campbell, Mary Williamson, 6.
Campbellton (otherwise Cross
Creek, Fayetteville) , North Car
olina, 2.
Cape Fear River, North Caro
lina, 1.
Carlisle, of Washington, 83.
Carpenter, Matthew H., 210, 241.
Carr, General Juhan S., his study
of the Hampton Roads Confer
ence, 166.
Carson, H. L., on Campbell as a
jurist, 17; on Campbell's resig
nation from the Supreme Court,
151; on Judge Curtis and Judge
Campbell upon the Bench and
at the Bar, 205.
Catron, Justice James, in various
cases, in Gaines vs. Relf , Exr., 13 ;
in Winans vs. Denmead, 25, 26;
in Dodge vs. Woolsey, 31; in

Piqua Branch of the State Bank
of Ohio vs. Knoop, 34; in War
ing vs. Clarke, 39; in Jackson vs.
Magnolia, 42.
Chase, Salmon P., 24, 83; in the
Slaughter-House cases, 224, 227,
233.
Christ Church vs. Philadelphia,
35, 36.
Churches, on tax-exemption of, 36.
" Citizen," meaning of, 29; as ap
plied to Dred Scott, 58-60, 63,
64; as applied in the Slaughter-
House cases, 221-27.
Citizens, corporations as legal, 27-
31.
Citizenship, dual, 223-27, 231.
Clarke, Colonel Elijah, 5, 6.
Clarke, General John, 4.
Clarke, John, Governor of Geor
gia, 6, 7.
Clay, Clement C, Governor of
Alabama, 16, 82.
Clifford, Judge Nathan, 48, 82,
233.
Clingman, Thomas L., on Lin
coln's attitude toward the evac
uation of Fort Sumter, 147.
Collier, Henry W., Governor of
Alabama, 16.
Collins, Charles W., on the Slaugh
ter-House decision, 230; on
cases involving the construction
of the Fourteenth Amendment,
233.
Collins vs. Hallert, 11.
Colston, Mrs. Clara, wife of Cap
tain Frederick M. Colston,
daughter of Judge Campbell,
281.
Confederacy, Southern, formation
of, 120; Judge CampbeU's serv
ices to, 149-92.
Conkling, Senator, 232.
Conrad, Charles M., 89.
Constitution of the United States,
divergent canons of construc
tion of, 44r-50; uncertainty in re
gard to the construction of, il
lustrated in Downes vs. Bidwell,

INDEX

305

72; argument of Judge Camp
bell on the construction of, in
the State-bond coupon case,
241-50.
Convention of Southern States
held at Nashville, June 6, 1850,
108.
Cooper, in Kentucky vs. Denison,
78.
Corning vs. Iron and Nail Factory,
83.
Corporations, the question of
their liability as citizens and the
extension of the jurisdiction of
the Federal Courts over, 27-34;
legislative grants to, 34, 35; rail
road, liability of, for acts of its
lessee, 36. See Railroad Com
mission Cases.
Costa Rica, violation of neutrahty
laws in connection with, 100.
Cotton & Levy, 210.
Crawford, Martin J., author of let
ter to Robert Toombs, 145.
Crawford, General Samuel W., on
Judge Campbell's efforts to
avert war, 142.
" Crime," construction of, in the
Constitution, 77, 78.
Crittenden, John J., 38, 83, 116.
Cross Creek (otherwise Campbell
ton, Fayetteville), 2.
Cuba, filibustering expeditions
against, 90-100.
Curtis, Judge Benjamin R., 24,
83; Mr. Badger on, 18; from eu
logy of Judge Campbell on, 18;
in Winans vs. Denmead, 25-27;
in the Dred Scott case, 59, 60,
64, 66-68; on Chief Justice Ta
ney, 69; resignation from Su
preme Court, 80, 81 ; his courage
as a judge, 100; intervenes with
President Johnson for release of
Judge Campbell, 198, 199; upon
the Bench and at the Bar, 205.
Curtis, George Ticknor, 55, 58, 83,
281 ; on the Dred Scott case and
the slavery question, 70, 71; on
the resignation of Judge Curtis,

80; on Judge Campbell's patriot
ism, 157; his "Memoir" of his
brother, 206 ; tribute of, to Judge
Campbell, 284, 294; on the pres
ervation of the Constitution
from the war, 294.
Cushing, Attorney-General Caleb,
82.
Dana, Charles A., 181, 184.
Daniel, Judge, in various cases, in
Winans vs. Denmead, 26; in
Dodge vs. Woolsey, 32; in Piqua
Branch of the State Bank of
Ohio vs. Knoop, 34; in Waring
vs. Clarke, 39; in The Genesee
Chief, 40; in Jackson vs. Mag
nolia, 42 ; in Florida vs. Georgia,
52; in the Dred Scott case, 60;
death, 82.
Dart, Henry P., anecdote concern
ing Judge Campbell told by,
258, 259.
Davis, Jefferson, his charge that
the equivocating conduct of the
Administration was the proxi
mate cause of the war, 143 ; and
the Hampton Roads Confer
ence, 164, 169-71; consideration
of his views as to terms of peace
with the North, 293.
Davis, Justice, 14.
Day, Judge, 250.
De Lovio vs. Boit, 38, 45.
Devaux case, 27, 29.
Dillon, Judge John F., 253.
Dissenting opinions, valuable serv
ice of, 86.
Dix, General, 144.
Dodge vs. Woolsey, 31-34.
Doolittle, James R., 82.
Douglas, Stephen A., 116.
Downes vs. Bidwell, 72.
Dred Scott case, controversy con
cerning, 54, 55; history of, 56-
71.
Duer, William A., 242.
Edmunds, George F., 234, 252,
281.

306

INDEX

Egan, J. C, 242.
Electoral Commission, from Judge
Campbell's speech before, 272,
273.
Ellsworth, Oliver, 243.
Eustis, Chief Justice of Louisiana,
Judge Campbell's estimate of,
266.
Eustis, George, 89.
Evarts, William H., tribute of, to
Judge Campbell, 283, 295.
Ewarts, William M., 83.
Ewing, Thomas, 21, 83.
Express Company cases, the, 252-
54.
Farrah, Edgar H., 286.
Faulkner, Charles, 82.
Fayetteville (otherwise Campbell
ton, Cross Creek), 2.
Federal Courts, enlargement of
jurisdiction of, cases involving,
27-51.
Fellows, J. Q. A., 210.
Fellows & Mills, 210.
Fessenden, William Pitt, 168.
Fictions, legal, 30, 31, 245.
Field, David Dudley, 242.
Field, Judge Stephen J., in the
Slaughter-House cases, 224^26,
228, 233; in Jackson vs. Lude
ling, 239, 240; in the State-bond
coupon cases, 249; in the Ex
press Company Cases, 253.
Florida vs. Georgia, 51.
Forsyth vs. Reynolds, 83.
Fort Pulaski, 192.
Fort Sumter, negotiations relating
to evacuation of, 120-48, 292.
Fourteenth Amendment, interpre
tation of, 208-35.
Fugitive Slave Law, the, opposi
tion to, in Wisconsin, 72-76; op
position to, on part of Ohio, 77-
80 ; could not be enforced if pub
lic opinion was opposed, 83-85;
events in Boston in connection
with the enforcement of, 92, 93.
Fuller, Chief Justice, 250, 281, 285,
291.

Gaines, Myra Clark, the case of,
11-15.
Garland, Augustus H., Attorney-
General, 82; quoted on Judge
Campbell, 87; resolutions on
death of Judge Campbell pre
pared by, 282.
Gaston, Judge William, 20.
Genesee Chief, The, 40, 41.
Georgia, the early settlers of, 6.
Geyer, Henry S., 58.
Gibson, Senator Randall L., 248,
281.
Gilmer, Governor, anecdote
quoted from, 7.
Goldthwaite, Anna Esther, wife of
Judge Campbell, 8. See Camp
bell, Mrs.
Goldthwaite, George, 8.
Goldthwaite, Henry, 8.
Goldthwaite, Colonel Thomas, 8.
Graham, William A., 173; Judge
Campbell's estimate of, 266.
Grant, U. S., on interview with
President Lincoln, 167.
Gray, Judge Horace, 82, 248.
Greeley, Mr., letter of Judge
Campbell addressed to, 188-92.
Grier, Judge Robert C, in Winans
vs. Denmead, 26; in Marshall vs.
Baltimore & Ohio Railroad
Company, 28; in Waring vs.
Clarke, 39; in Jackson vs. Mag
nolia, 41; in Taylor vs. Caryll,
48.
Groner, Mrs. Kate, wife of Colonel
V. D. Groner, daughter of Judge
Campbell, 281.
Guthrie, Wilh'am D., on the
Slaughter-House decision, 229;
on Judge Campbell's passion for
labor, 258.
Hampton Roads Conference, the,
164-72, 293.
Harding, George, 24-26.
Harlan, Judge, 228; on the pre
sumption that corporations are
fictions, 30.
Hay, John, as to whether Lincoln

INDEX

307

promised to evacuate Fort Sum
ter, 144.
Highlanders, emigrants to North
Carolina, 1, 2.
Hoadly, Governor, on Judge
Campbell, 87.
Hoadly, Judge George, 250, 262;
tribute of, to Judge Campbell,
282, 283.
Holt, Joseph, 144.
Howe, Daniel Wait, and author
ship of letter to Robert Toombs,
145.
Howe, Senator, on the Slaughter-
House decision, 229.
Hunt, Carleton, 286; on Judge
Campbell's career as member of
the Bar, 207.
Hunt, Randell, 210.
Hunt, William H., 21, 89, 210.
Hunter, Senator R. M. T., 169,
170, 192, 193; Judge Campbell's
estimate of, 264.
Jackson vs. Ludeling, 236-41.
Jackson vs. Magnolia, 41-47.
Janin, Louis, 83.
Johnson, John G., 230.
Johnson, Reverdy, 83; in Gaines
vs. Relf, Exr., 13; in The Execu
tors of John McDonogh vs. Mary
Murdock, 25; in Waring vs.
Clarke, 38; in Dred Scott case,
58; on the presentation of argu
ments by Taney and Curtis in
the Dred Scott case, 68, 69.
Kellogg, William Pitt, 272.
Kentucky vs. Denison, 77.
Lafayette, General, claims of heirs
of, 90.
Lamar, Justice L. Q. C, 6, 281.
Lay, Mrs. Henrietta, wife of Colo
nel George W. Lay, daughter of
Judge Campbell, 281.
Lee, General Fitzhugh, 170.
Legislature, nullification of stat
utes of, 254, 255.
Letson case, 28, 29.

Lincoln, Abraham, in Forsyth vs.
Reynolds, 83; elected to Presi
dency, 109; his understanding of
• the controversy over slavery,
113; and promise to evacuate
Fort Sumter, 141-48 ; as to what
he said at the Hampton
Roads Conference, 165-68; as
to his proposition to compensate
Southerners for slaves, 165-69;
conversations of Judge Camp
bell with, 175-77; his letter of
April 6, 1865 to General Weit
zel, 177, 178; withholds consent
for Legislature to assemble at
Richmond, 178; assassination,
179; " Memorandum" handed to
Judge Campbell, 179; review of
conduct of, in connection with
assembling of Confederate Leg
islatures, 180-97; bis plan of re
construction, 294.
Louisiana Gas Company case, 154-
56.
Ludeling, Chief Justice, 210, 236-
38.
Lutz, Professor Ralph H., paper
of, concerning Rudolph Schlei
den, 146, 147.
Maine, Sir Henry, on legal fictions,
30.
Marshall, Chief Justice, on the
"corporation" and the "citizen,"
27, 28.
Marshall, in Kentucky vs. Denison,
78.
Marshall vs. Baltimore & Ohio
Railroad Company, 27-30.
Mason, J. M., 169; incident con
cerning his wife, related by
Judge Campbell, 264, 265.
Mason, Thomas W., on the era of
reconstruction, 202, 203.
Matthews, Justice Stanley, 282.
Maury, William A., on Judges
Curtis and Campbell, 205; on
Judge Campbell's argument in
the Slaughter-House cases, 219,
220; on Judge Campbell's argu-

308

INDEX

ment in the State-bond coupon
case, 248; on Judge Campbell's
character and appearance, 258,
260, 262; his tribute to Judge
Campbell, 282.
May, Henry, 21, 83.
McDonald, Allen, 2.
McDonald, Flora, 2.
McDonogh, John, the case of the
will of, 21-24.
McKenna, Judge, 250.
McLean, Justice, 26, 41, 64, 204.
McNeill, Neill, 1.
Merrick, E. T., 286.
Methodist Episcopal Church case,
24.
Mikell, Professor William E., on
the Dred Scott case, 70.
Miller, Justice Samuel F., 82; on
Judge Campbell, 9, 10, 219, 249;
in the Slaughter-House cases,
221-24, 227, 228, 232, 233; in
the Express Company cases,
253.
Mitchell, Dr. S. Weir, 157.
Mobile, 8; represented in Legisla
ture by Judge Campbell, 9.
Moise, Mr., 96.
Monopolies, Judge Campbell's
hostility to, 25. See Slaughter-
House cases.
Moody, Justice, 230, 231.
Myers, Gustavus, 177.
Negro question, Judge Campbell's
expression of opinion on, 274.
Nelson, Justice Samuel, 122; in
Winans vs. Denmead, 26; in
Dred Scott case, 63, 64; letter of
Judge Campbell to, concerning
peace conference, 161-63; inter
venes for Judge Campbell, 199.
Neutrality laws, violation of, 90-
102.
New Hampshire vs. Louisiana, 278.
New Orleans, 206, 286.
" New Orleans Bulletin," words of,
on Judge Campbell's charge to
jury on slave trade, 103, 104.
New Orleans Gas Light Company

vs. Louisiana Light Company
256.
Nicaragua, violation of neutrality
laws in connection with, 100.
Nicolay and Hay, criticism of
Judge Campbell in their "His
tory," 147.
Ord, General Edward, O. C, 178,
186.
Parlange, Charles, tribute of, to
Judge Campbell, 286.
Patents, cases involving, 25-27.
Peace Congress at Washington,
Feb. 24, 1861, 121.
Pearson, Richmond M., 19.
Peckham, Wheeler H, 242.
Pettigru, J. Louis, 83.
" Philadelphia Record," descrip
tion of Judge Campbell from,
260, 261.
Pierce, Franklin, correspondence
with Judge Campbell concern
ing the slavery question, 114^16.
Piqua Branch of the State Bank of
Ohio vs. Knoop, 34, 35.
Porter, Alexander J., 89.
Powell, Rev. Arthur Chilton, trib
ute of, to Judge Campbell, 279,
280.
Pugh, Senator James L., 281.
Quitman, John A., charged with
violation of neutrality laws, 91,
95-99.
Railroad, liability of, for acts of its
lessee, 36.
Railroad Commission Cases, the,
250-52.
Randolph, Edmund, 243.
Randolph, George W., Secretary
of War under the Confederacy,
158.
Rate-fixing cases, 250-52.
Reagan, John H., 82.
Rhodes, J. F., on Judge Black, 140;
on Judge Campbell, 142; on the
Seward-Campbell Negotiation,

INDEX

309

143, 144; on the Richmond inci
dent, 197.
Richmond, evacuation of, 174.
Richmond incident, the, 175-97.
Rives, W. C, 173.
Roselius, Christian, 210.
Russell, Leslie W., 242.
Rutledge, John, 243.
Saunders, A. L., 95.
" Savannah Republican," on Judge
Campbell's charge to jury on
slave trade, 104.
Schleiden, Rudolph, on Lincoln's
reference to the evacuation of
Fort Sumter, 146, 147.
Schouler, James, on the Seward-
Campbell negotiation, 143, 144.
Secession, Judge Campbell's views
on, 118, 119; ordinance of,
adopted by Alabama, 119; ordi
nances of, passed by other
States, 120; sentiment in border
States on, 121, 122; of Alabama,
Judge Campbell's statement of
his efforts to prevent, 138—40.
Semmes, Thomas J., on Judge
Campbell's argument in the
State-bond coupon case, 249;
address on Judge Campbell, 286.
Semple, Major H. C, 274, 276,
277, 290.
Servitude. See Slavery.
Seward, Clarence A., 252.
Seward, William H., 83, 116; cop
ies of notes from, filed with
statement of Judge Campbell,
! 132; letters of Judge Campbell
to, concerning Fort Sumter, 133-
38.
Seward-Campbell negotiation, the,
122-48.
Seymour, Horatio, 83.
Shepley, General, 175, 180, 184.
Sherman, Senator John, 157.
Sherman, General William T., 157.
Slaughter-House cases, 154, 208-
35.
Slave trade, charge of Judge Camp
bell to grand jury on, 102, 103.

Slavery, and the Dred Scott case,
56-71; doomed to extinction,
83-85; words of Judge Camp
bell on the duty of the Southern
people toward, 105-07; discus
sion concerning, after Lincoln's
election, 113; Judge Campbell
advocates constitutional settle
ment of the question, 114; the
question of compromise on, 116-
18; efforts for compromise on,
120, 121. See Fugitive Slave
Law.
"Slavery" and '"servitude," the
terms, 213.
"S. N. T.," author of article in the
"True Delta," concerning Judge
Campbell and the Quitman case,
97-99.
Soule, Pierre, 89.
Southern Circuit Courts, 89.
Sparks, Jared, quoted on John
Archibald Campbell (1), 5;
quoted on the early settlers of
Georgia, 6.
Speed, Attorney-General, letter of
Judge Campbell to, 192, 193.
Spofford, Judge Henry M., 207,
236, 241.
Stanbery, Henry, 24.
Stanton, Edwin M., 144; Attorney-
General, 82, 83 ; on Judge Camp
bell's efforts to preserve peace,
140, 141; approves of Judge
Campbell's scheme to bring
about peace, 163; statement be
fore Judiciary Committee of the
House of Representatives, 182;
opposed to recognizing rebel or
ganizations, 187.
State sovereignty, 291, 292.
States, immunity of, case involv
ing, 241-50. ;
Stephens, Alexander H., 143, 170,
171.
Stevens, Thaddeus, 83.
Stevenson, in Kentucky vs. Deni
son, 78.
Story, Judge Joseph, 37, 38.
Strict constructionists, 86, 291, 292.

310

INDEX

Strong, Justice William, 236, 237.
Supreme Court of the United
States, its personnel at the time
of Judge Campbell's appoint
ment, 18-20; Judge Campbell's
last words, addressed to, 280.
Swayne, Justice, 224, 227, 233.
Taft, Alonzo, 82.
Taney, Chief Justice Roger B.,
149 ; in Winans . vs. Denmead,
26; in Waring vs. Clarke, 40; de
fends jurisdiction of the admir
alty in Taylor vs. Caryll, 47-^9;
in Florida vs. Georgia, 52; in the
Dred Scott case, 55, 59, 60, 63,
68, 222; Judge Curtis on, 69;
manumitted his slaves, 71; on
the words " it shall be the duty "
in the Constitution, 79.
Taxation, legislative grants of im
munity from, 35, 36.
Taylor, Hannis, on Judge Camp
bell's personal appearance, 257.
Taylor vs. Caryll, 47.
Telegraph cases, 24.
Tennessee Bond Cases, the, 250,
254.
Thirteenth Amendment, the, 211-
13, 221.
Thomas Jefferson, The, 38.
Thrasher, J. S., 95.
Tonnage case, 208.
Toombs, Robert, authorship of
letter to, 145.
" Traitors," as applied to Southern
men, 156.
Transportation, development of
systems of, 253.
Troup, George M., 4, 5.
Trumbull, Lyman, 82.
Tucker, J. Randolph, 230.
Tyler, Samuel, quoted concerning
the Dred Scott case, 55.
Venable, Major R. M„ 281.
Virginia, the matter of the assem
bling of the Legislature of, 177-
97.

Waite, Chief Justice Morrison R.;
249, 282.
Walker, Albert H., on the Winans
vs. Denmead case, 25.
Walker, Leroy P., 89.
Walker, Percy, 101.
Walker, William, case of, 100;
criticizes the judge, 101.
Wallis, S. Teackle, 83.
Waring vs. Clarke, 38.
Waring vs. The Mayor, 208.
Washington, Justice Bushrod, 224.
Wayne, Justice James M., in
Gaines vs. Relf, Exr., 13; in
Gaines vs. Hennin, 14; in Winans
vs. Denmead, 26; in Waring vs.
Clarke, 39; on the decision in
The Genesee Chief, 41; in Tay
lor vs. Caryll, 48; in the Dred
Scott case, 66-68; remained on
the Bench after the secession of
his State, 155, 156.
Webster, Daniel, 13.
Weitzel, General Godfrey, 175-85.
Welles, Mr., 181.
White, Chief Justice, 250, 258.
White, Andrew, 89.
White, Edward Douglass, 89.
White, Horace, on the question,
whether Lincoln promised to
evacuate Fort Sumter, 144, 145.
Whyte, William Pinkney, 82, 281.
Williamson, Mary, 5.
Williamson, Micajah, 5, 6.
Williamson, Sarah Gilliam, 5, 6.
Wilson, James, 243.
Winans vs. Denmead case, 25-27.
Wisconsin, decision of Supreme
Court of, nullifying Fugitive
Slave Law, 72-75; resolutions of
Legislature of, 76.
Wolcott, Attorney-General of Ohio,
78.
Woodbury, Judge, 39.
Woods, Justice, 228.
Wyly, Justice, 210.
York and M. Line Railroad vs.
Winans, 36.

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