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.