CHAPTER XVI. LEGAL TECHNICALITIES IN CONFLICT WITH COMMON SENSE. ANOTHER
ACT IN THE DRAMA.—PRIDE ON THE ONE SIDE AND JUSTICE ON THE OTHER PROMPTING THE ACTORS.
THERE is nothing so uncommon as common sense; nor is there anything more distasteful than common sense to such as pride themselves on technical knowledge. The doctor who would rather kill by rule than cure by reason, if the reason chanced to come from a sick-nurse, or from an old woman; and the lawyer who would rather lose a case by observing technicalities and following precedents, than gain it by exercising plain common sense, are by no means so rare as some suppose. They are to be found in all the walks of life, high as well as low, and whenever or wherever found, should be carefully noted, especially by the historian, in order to warn others from falling into a like error.
From the very day the provost-court opened in Alexandria, the secessionists of that city, and all whom they could influence in Washington and elsewhere, commenced to oppose it—not so much openly as secretly. This was especially true of the only lawyer remaining there, and his reasons for opposition were of a threefold character. First, he saw it might, and probably would be used in the interests of the Union cause and in the cause of freedom, and thus interfere with the plans of secessionists and of slave-owners; secondly, he opposed it because the court refused to admit him, or any other lawyer, to practise in it, unless they would first take the oath of allegiance to the United States government; and thirdly, because the court was presided over by one who was not a professional lawyer; by one who seemed to have more regard for justice and equity than for legal technicalities; by one who cared nothing about the laws of Virginia, or law precedents of any State, if one or the other stood in the way of justice; by one who preferred to be guided by the rules of common sense, rather than by the rules of law. To one who is not a professional man himself, all this may seem strange; but to one who has mingled much with professional men, it will be readily understood as comprehending cases which have fallen under his own observation. On the pretence of protecting the people, though really to protect their own selfish interests, both doctors and lawyers have procured the passage of laws in many States, whereby no one is authorized to practise in either profession until he shall have complied with such rules and regulations as these laws prescribe. It is virtually a relinquishment by the people of one of the very first principles of freedom—namely, the right to choose their own agents or servants, but it is submitted to on the plea that it keeps out quacks and pettifoggers. If, while keeping these out, it imparted more of common sense to those taken in, it would be at least compensating in its operations, but it does neither.
It was observed that immediately after the court fined that secessionist five hundred dollars for assault and threat to kill the Unionist (an account of which has heretofore been given), the Alexandria lawyer became doubly active in his opposition to the court, and it was stated, as a reason for his greatly increased activity, that the hardware merchant had agreed to give the five hundred dollars as a fee to the lawyer, provided he could get it back, and procure an order from General McClellan, or from the authorities at Washington, to suppress the court. To effect this object the Alexandria lawyer applied to every prominent secessionist at Washington, and got from each the promise to bring to bear whatever influence he could, through Northern sympathizers. He went himself, personally, to every lawyer in Washington, and appealed to each to protect the "honor of their profession," by assisting to suppress a court which had no legal existence, or, at least, to remove from its head one who was not a lawyer, but a doctor, by profession. Even several Union lawyers were moved to activity by this plea for "protection to the profession," while secession lawyers were ready enough to make this, or anything else, a plea whereby to cripple the government.
It came to the ears of Judge Freese that some of these professedly Union, but really disloyal, lawyers had gone direct to President Lincoln and urged him, both as President and as a lawyer, to issue an order to suppress the Alexandria court, or, at least, direct the removal of the "doctor-judge." The reply, as reported by one who chanced to be present, was characteristic of President Lincoln, and in about the following words: "I have known Dr. Freese as a first-class physician for some years, and have only known of him as a judge for a few months: but from the way he administers law-doses to these Alexandrians, I am beginning to think that he is even a better judge than he is a doctor. He may not understand legal technicalities and the rules of courts quite as well as some lawyers I know of—present company, of course, always excepted—but he shows in his decisions a wonderful deal of common sense, which is far better than rules of law or technicalities. What they say of the doctor reminds me of a story which is told of a man who said he could not cure chills and fever, but was 'death on fits,' and wanted all his patients to have fits, when he would cure them at once. Most of our lawyers and judges are death on technicalities, but can't cure the commonest ills to which society is subjected; whereas, Dr. Freese is curing the ills of Alexandria so rapidly and so successfully, that it will soon be one of the most healthy and one of the most thoroughly Union cities in the whole country'. I would not interfere with him or his court for the world, and don't think any one else should."
Finding that they could make no impression upon the President, they next went to the Secretary of War, Simon Cameron. He listened to all they had to say, and then replied about as follows: "Yes, I've heard considerable about Freese's 'Bayonet Court,' as secessionists and Northern sympathizers with secession call it, and the more I've heard of it the better I like it. I only wish we had just such a court, and just such a judge at the head of it, in every city we've conquered from the rebels. They would do more towards extracting the venom of these secession serpents than all our armies combined. As to the Judge being a doctor, instead of a lawyer, by profession, that only makes me think the more of him. A lawyer is anybody's man who'll pay him a fee, and the one who'll pay the best is apt to get from him the best service, no matter on which side he pretends to be employed, but a doctor has only to cure the case in hand, and can have no conflicting interests; and from the way Judge Freese is pulling out the teeth of those secession scoundrels, by taking from them the means to do harm and transferring it to the pockets of those to whom it justly belongs, and who will use it to sustain the Union cause, I am satisfied that he is just the man for the place, and on no account would I do anything to suppress either him or his court."
Their next applications were to the Attorney-General, Edward Bates, of Missouri, and Postmaster-General Montgomery Blair, of Maryland. Here they struck chords which were much more likely to prove responsive—not only because they each had been pro-slavery men all their lives, and would naturally resent Judge Freese's interference with the "institution," and with those who still claimed the right to hold and to use "human chattels" just as they pleased, but, more especially, because they were both lawyers, both felt a special interest in maintaining the "dignity of the profession" for both expected to return to active practice so soon as they vacated their then official positions in Mr. Lincoln's cabinet. Mr. Bates took up the matter with great earnestness so soon as it was fairly before him, and, within one hour from the time the self-constituted committee left him, he was with the President, urging him to suppress the court. When Mr. Lincoln had expressed his opinions concerning it, Mr. Bates, for the time being, seemed entirely nonplussed; but next day he returned to the attack with renewed energy, and for days and weeks after that, whenever he met the President, he had something to say against the Alexandria provost-court. Mr. Blair also spoke to the President concerning it, and strongly contended that it would greatly aid the Union cause, "especially in the border States," if that court were suppressed. The President did not think so, and would give no such order.
While these efforts were being made with the President and with the Cabinet, corresponding efforts were being made with General McClellan, then in command of the troops on the south side of the Potomac. Within a week or two from the opening of the court, one of the General's aids called upon General Montgomery to make inquiry about it, and several times after that this same aid (whom the Union men of Alexandria knew personally as a pro-slavery Washington sympathizer with the rebellion, though professedly a Union man) called upon General Montgomery to protest against the acts of the court, so far as they related to the people of Alexandria. Whether always sent by General McClellan, or whether he sometimes called on his own volition, was not definitely known. The Alexandria secession lawyer seemed to be on intimate personal relations with this aid-de-camp, and it may have been that this personal relationship stirred up the aid to special efforts. Doubtless the lawyer kept the aid, and, through the aid, General McClellan, well-informed of all that was going on in Alexandria—especially with regard to the doings of the provost court.
Thus matters had gone on, and were going on, up to the time when the last case recorded in the previous chapter was decided by the court. The publicity given to that case, by the publication at length of the Judge's opinion in the New York Times and other Northern papers, aroused the entire pro-slavery secession-sympathizing element of the Northern States, and in a few days thereafter it came surging into Washington like a flood. It beat against the door of every Cabinet officer; it rolled and tumbled about in every hotel and drinking-saloon; it surged violently against the White House; and even found its way into the executive chamber. Mr. Bates now put on renewed and increased vigor, and insisted with the President, that, as all United States courts belonged to his department, and the people held him responsible, as Attorney-General, for their doings and misdoings, he, and he alone, ought to have the deciding of the Alexandria matter, and, if left with him, he would at once suppress the court.
When things had reached this crisis, the President sent word to Judge Freese to call upon him at his earliest convenience. The Judge, after being stationed at Alexandria, had, during the first few months, called frequently upon President Lincoln, Secretary Seward, and Secretary Cameron, as he had known them all personally, and somewhat intimately, for many years; but for the month preceding this word from the President, the Judge had been kept so exceedingly busy with the affairs of his court that he had scarcely been to Washington. On the afternoon of the next day after getting Mr. Lincoln's message, Judge Freese called upon him, and was received with the utmost cordiality. So soon as they were entirely alone, the President told the Judge of the position which Attorney-General Bates had taken with reference to the Alexandria court, and added: "I really think Bates will resign unless he can have his own way in this thing. I wish, Doctor, you would call upon him at once, and see if you can't change his mind. It would be a dreadful thing, just now, when we are in the midst of a war, to have any Cabinet officer resign, as our enemies would regard it as showing weakness on our part, and as a triumph for themselves, and yet I don't want your court closed, if it can possibly be helped. Call upon Bates, Doctor, call upon Bates, and let me know the result."
From the President's room the Judge went direct to Mr. Bates's office and had a long conference with him. The Attorney-General, while admitting the correctness of Judge Freese's decisions, so far as he had heard of them, still insisted that there was no law by which the existence of such a court was authorized, and therefore it ought to cease its operations at once. The Judge admitted that he knew of no law by which such a court was authorized, but contended that "necessity knew no law," and that the existence of just such a court was a real necessity in Alexandria, not only as a means of preserving the peace of the city, but for all other purposes for which courts were ever used, since the State, county, and municipal courts had all run away when the Union troops came in, and this was the only court through which justice could be obtained in any case or for any purpose. All this, the Attorney-General said, seemed to be true, but it was better to wait for justice than to violate known rules of law in trying to obtain it. "The court has no legal existence, sir, the court has no legal existence," he kept saying over and over again, and this was his answer, and his only answer, to every argument brought forth by the Judge. The Judge finally made him this proposition: "If you, sir, will withdraw your opposition to the continuance of this court, I will enter into a bond with the United States government, in the sum of one hundred thousand dollars, with good and sufficient sureties, the condition of which bond shall be, that, when the war shall have ended, every case which has been adjudicated by that court, and every one which may be adjudicated by it hereafter, shall be revised by the Supreme Court of the United States, or by any one or more of the justices thereof, and if in any case it be found that injustice has been done, I will refund to the parties doubly the amount out of which they have been wronged because of the action of the court; or, if any punishment has been inflicted beyond what the Supreme Court will say was right, under the circumstances, I will pay to the party punished, or to his legal representatives, whatever damages the Supreme Court may adjudge."
"This, certainly," replied the Attorney-General, "is a very fair proposition on your part; but, sir, the court has no legal existence, no legal existence, and while I remain Attorney-General, and am responsible for whatever is done in this department of governmental affairs, I cannot consent that such a court shall continue."
This ended their interview, for the Judge plainly saw that he might talk till doomsday and yet not change the Attorney-General's mind an iota. "Convince a man against his will, and he remains of the same opinion still," says an old maxim, and never was the maxim better exemplified than in the case of Mr. Bates. He was one of those men who looked at everything, as it were, through a gun-barrel, and could see nothing to the right or left of the one line of vision; one of those men who are so straight, that, like the Indian's gun, they "lean a little over;" one of those self opinionated men, who, having once conceived an idea or prejudice, no amount of argument can change his mind.
The next day the Judge again called upon the President, and told him all that had passed between the Attorney-General and himself. The President laughed heartily at the "mulishness of old Bates," as he called it, and yet seemed a good deal annoyed at the unreasonable stubbornness manifested by the Attorney-General. He did not, he said, know what to do or to say. He was in a quandary, and could not see his way clearly out. Finally, he asked the Judge to call upon the Secretary of War, and see what he might say about it.
The Judge then called upon Mr. Cameron, and told him of the interviews he had had with the President and with the Attorney-General, relative to the Alexandria court. The Secretary listened attentively, and, when the Judge had finished, expressed opinions about the Attorney-General more forcible than polite. He talked, he said, "just like a d—d old traitor, and if he is not one, his own tongue belies him!" He strongly suspected, he said, that "both Bates and Blair were wolves in sheep's clothing, and this only went to confirm that opinion." He had, he said, "expressed as much to the President, and would do so again when next he met him." He had thought himself of resigning, rather than remain in the Cabinet in company "with such d—d rascals and traitors to their country." For a full half-hour the Secretary fairly raved with excitement, and when the Judge was about to leave, told him to hold on, let come what would.
In this connection it may be well to add that within a few weeks after that interview Mr. Cameron did resign his place in the cabinet, and Mr. E. M. Stanton was appointed in his stead; but whether Bates's action in the case of the Alexandria court was one of his reasons for resigning, we have no means of knowing, though it Is not at all improbable.
Again the Judge called upon the President, and told him what had passed between Secretary Cameron and himself. The President seemed now more confounded than ever, and finally told the Judge to let things rest for a few days until he could think over the matter, and see what was best to be done.
About a week after this, the aid-de-camp of General McClellan, who had so often before called upon General Montgomery, called again, and told him that it was General McClellan's special wish that the provost-court should have nothing more to do with civil cases, or cases touching the subject of slavery in any way. That while General McClellan greatly preferred not to issue a formal order on the subject, yet he would certainly do so if his wishes could not be carried out in any other way. He was not willing, the aid said, to have Judge Freese interfere with the old citizens of Alexandria in any way, though if he chose to continue the court merely for the punishment of soldiers who got drunk within the city limits, or otherwise disturbed the peace, he had no objection. At the same visit, the aid delivered to General Montgomery an order from General McClellan requiring the court to refund to the Alexandria hardware merchant the five hundred dollars which he had been required to pay as a fine, because of the assault, with threat to kill, upon the Union man—all of which has heretofore been related.
When the aid had gone, General Montgomery sent for Judge Freese, and they had a long conference as to what had best be done under the circumstances. The Judge had before told the General all that had passed between the President, the Attorney-General, the Secretary of War, and himself; and the General now told the Judge all that had passed between General McClellan's aid-de-camp and himself. The Judge said that under no circumstances could he consent to continue the court, if thenceforth it was only to punish soldiers for drunkenness and other misdemeanors; that it had been exceedingly distasteful to him from the first to have to punish a soldier at all, and now to punish him alone, and let citizens, who committed offences far worse, go free from punishment, would be, in his opinion, a mockery of justice, and he would not be the presiding officer of such a court; that, it having gone abroad that the court was willing and ready to assist Northern creditors in their efforts to collect claims against disloyal debtors, it would now be exceedingly unpleasant to have to deny such claimants as might thereafter call, and, rather than have to do this, he would much prefer to see the court closed; for then the public would place the responsibility just where it belonged. The Judge added, that he knew the court was placing the President in a very embarrassing position, so far as related to his Cabinet; that, while Cameron and Seward were anxious to have the court continue, Bates and Blair were just as anxious to have it suppressed; and from the order just received from General McClellan to return the five hundred dollars fine, it was entirely clear that the secessionists of Alexandria, and the sympathizers with secession at the North, had gained complete control over him; from all of which the Judge thought it would be best to close the court.
General Montgomery fully concurred with the Judge in all these views, and added that, as the court had been organized upon his order, without first consulting with General McClellan or the President, he would much prefer to have it close voluntarily, than to be compelled to close it upon the order of General McClellan or of the President. The Judge replied, that while he believed that President Lincoln would never issue such an order, no matter what the consequences to himself might be, still he should be glad to relieve the President from what to him was evidently a great embarrassment; and if he, General Montgomery, would issue an order directing the court to close its operations on the next or any day following, he, the Judge, would gladly announce the order from the bench and adjourn the court sine die.
Such was the conclusion finally agreed upon. General Montgomery wrote out the necessary order and handed it to the Judge. Next day, after all the business before the court had been disposed of as usual, the Judge read General Montgomery's order from the bench, and explained to those present why it had been issued. Had a cannon burst then and there and killed a hundred men, the surprise could not have been greater. Some raved at Attorney-General Bates, and pro-slavery men generally; others cursed General McClellan and Northern sympathizers with rebellion, generally; deep and somewhat loud were the mutterings among all present; but the order was irrevocable, and thus closed at once and forever the provost-court of Alexandria.
Had that court been continued, and others like it established in every city of the South, so soon as they came into the possession of Union troops, at least one hundred millions of dollars would have been collected from the property of Southern debtors and gone into the pockets of Northern creditors; the war would have ended two years sooner; over five hundred millions of dollars would have been saved to the United States treasury; and over one hundred thousand lives been saved to the homes and families of both the North and the South. Only at the last judgment-day will it be known how great was the mistake—a mistake which, in its ultimate consequences, was not less ruinous to the South than to the North—of those who insisted upon, and who finally compelled, the closing of the provost-court at Alexandria.
We say this after a full consideration of the whole subject as drawn from the facts heretofore detailed in this volume, and do not think we shall have to take a single word of it back. True, very true, as eloquently stated in a letter from our old friend, J. E. Brush, Esq., of New York—"Floyd, Thompson, and Cobb, of Buchanan's Cabinet, had so disarmed and depleted the government of means, that Lincoln had very slender resources; and the gullibility of Northern business men in filling the orders of Southern men for war material, for months previous to the opening of the war, proves that they meant business, while the North did not take in the situation at all;" still we think, but for the secret machinations of Northern sympathizers—of men on whom, for a time, the government relied and entirely trusted, including generals in the field, officers in the navy, and even officers in the Cabinet—the war would have been ended at least two years sooner, and hundreds of millions saved to the taxpayers of the country.
We are aware that such a statement at first sight seems extravagant, if not wild; but if the reader will carefully weigh each factor of the problem, and follow out the relation which each bears to the other; and then if he will suspend judgment until he shall have read the last chapter and last line of this book—so that he shall have all the facts before him, all the secret springs which were so adroitly worked, but of which nobody even suspected the existence, all the villanies of men singly and of men united in political and religious associations—we have no doubt at all but what he will reach the same conclusion that we have reached in the above paragraph. Facts and figures never lie when properly placed; but men are so disposed to shut their eyes against unpleasant facts, and so inclined to place figures in such a way as will bring the result they wish for, that the most palpable truths are often hid, and kept hid, from the public, until by some accident or incident the secrets are revealed, as in this volume.
