Twenty Years of Congress, Vol. 1 / From Lincoln to Garfield, with a Review of the Events Which Led to the Political Revolution of 1860

by James Gillespie Blaine

The language of the Thirteenth Amendment is so comprehensive and absolute that vital questions of law are not likely at any time to arise under it. The Article is in two parts. First, "Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction. Second, Congres shall have power to enforce this Article by appropriate legislation." By this Amendment the relation between the National and State Governments, respecting the question of Human Liberty, was radically changed. Before its adoption slavery could be established or abolished in any State at the will of the majority. The National prohibition now extended everywhere that the flag floated; freedom of the person became thenceforth a matter of National concern. The power of the State was subordinated to the continuing and supreme authority of the Nation.

The Supreme Court has had occasion in a few cases only to deal with the Thirteenth Amendment, and in those cases the questions raised did not touch the validity or scope of the Article. In the case of White v. Hart, reported in 13 Wallace, the Court held that a note given for slaves at a time prior to emancipation was a valid contract and could be enforced. This judgment was rendered in the face of the fact that the Reconstructed Constitution of the State of Georgia, where the contract was made, contained a provision that no Court should have or take "jurisdiction in any case of debt the consideration of which was a slave or the hire thereof." The Court held that the provision in the Georgia Constitution was invalid as to all agreements made prior to its adoption, upon the ground that it was a violation of the Constitution of the United States which provides that no State shall make any law "impairing the obligation of contracts." In the case of Osborne v. Nicholson, 13 Wallace, where the cause of action was a note given for a slave in Arkansas, March 20, 1861, the Court held that the Thirteenth Amendment did not constitute a bar to the claim. These cases serve to show the narrow and restricted character of the issues made under the Article —issues long since passed by the limitation of time.

One point in the adoption of the Amendment caused much speculation at the time, not unaccompanied with anxiety. The whole number of States was thirty-six. The assent of three-fourths of that number was required to amend the Constitution. Twenty-seven States voted through their Legislatures in favor of the Amendment—precisely the requisite number. But of these, nine had been in rebellion and had not at the time been restored to the enjoyment of their rights as States in the Union. They had not been re-admitted to representation either in the House or the Senate. The majority of these States were not considered to be entitled to representation in Congress for three years after they had given their formal assent to the Thirteenth Amendment. The question as to whether they could give valid assent to an amendment to the Constitution was one which might possibly be raised. If they were not in condition to enjoy representation in Congress, it might be asked how they could be in condition to perform a much higher function. If they could not participate in the enactment of Statute Law, how could they participate in the far weightier duty of framing the Organic Law of the Republic?

If the same judges who pronounced the Dred Scott decision had been still on the Bench, serious trouble might have arisen. But there had been a radical change in the Judicial Department, not simply in the personnel of the judges but in the views they entertained touching the functions, powers, and duties of the Federal Government. It fell to Mr. Lincoln's lot to appoint a majority of the judges and thus practically to constitute a new Court. Washington, the elder Adams, and Jackson were the only Presidents before him who had appointed a Chief Justice, and when he nominated Mr. Chase, there had been only one other chief justice named for sixty-three years. He appointed as associate justices Noah Swayne of Ohio, Samuel F. Miller of Iowa, David Davis of Illinois, all in 1862, and Stephen J. Field of California the year following. Mr. Lincoln's sound judgment was apparent in this as in other great duties. There are single judges in our history who, in point of learning, rank higher in the estimation of the legal profession, but perhaps never a majority of the court who were superior in all the qualities which adorn the Judicial character.

THE JUDGES OF THE SUPREME COURT.

Considering that the tenure is for life, it seemed as if an extraordinary number of Judicial appointments fell to one President. But as the eminence which fits a man for the high station is not attained until past the middle period of life, the changes are necessarily somewhat rapid. Washington in his Presidency of eight years nominated, for a Court of six members, eleven judges who served, besides one who declined and one who was rejected. Down to this period in our history (1884) it has fallen to the lot of each of our twenty-one Presidents except Harrison, Tyler, and Johnson, to nominate at least one associate justice. Under Jackson and Van Buren the entire Court was revolutionized. A Chief Justice and six associates were appointed, selected exclusively from their political supporters. From that time onward until the Administration of Mr. Lincoln, every judge was selected from the Democratic party, with the exception of Benjamin R. Curtis who was appointed by President Fillmore. When Mr. Lincoln entered upon his official duties, the Judicial Department of the Government differenced in every conceivable way from his construction of the Constitution in so far as the question of slavery was involved. But one judge could be expected to look with favor upon the course he would pursue. The venerable John McLean, though placed on the Bench by Jackson, had changed his political views and relations, and he alone of all the justices sympathized with Mr. Lincoln.

The Southern States prior to 1860 had secured a large majority of appointments on the Supreme Bench. In originally constituting the Court Washington had equally divided the judges between the slave States and the free States. After his Administration and until the incoming of President Lincoln, the Court uniformly contained a majority of Southern men. From the beginning of the Government until the election of Mr. Lincoln, there had been eighteen associate justices appointed from the slave States, and but fifteen from the free States. The average term of service of the judges from the South had been about fourteen years; from the North about twelve years. From 1789 to 1860, the Chief Justice had been from the South during the whole period with the exception of twelve years. It is a fact worth noting that neither the elder nor the younger Adams appointed a Northern man to the Bench. They appointed three from the South. It is not among the least of the honors belonging to the elder Adams that he gave to the country the illustrious Chief Justice Marshall.

Directly after the adoption of the Thirteenth Amendment came a wide- spread rumor that negotiations for peace were in progress which might interfere with the anti-slavery action of Congress. On the 8th of February Mr. Thaddeus Stevens moved and the House unanimously adopted a resolution requesting "the President to communicate to the House such information as he may deem not incompatible with the public interest relative to the recent conference between himself and the Secretary of State and Messrs. Alexander H. Stephens, Robert M. T. Hunter, and John A. Campbell in Hampton Roads." Mr. Lincoln replied at once, giving in detail every step which had led to the conference, and all that was accomplished by it. It was brought about by the elder Francis P. Blair, who under a flag of truce had visited Richmond early in January. Mr. Lincoln had steadily insisted on three preliminary conditions: First, the absolute restoration of the national authority in all the States; second, no receding from the positions taken on the slavery question; third, no cessation of military operations on the part of the Government till the hostile forces surrendered and disbanded. On these conditions the Confederate agents could not treat, and the conference came to no agreement. In his message Mr. Lincoln made one significant remark. "By the other party it was not said that in any event or on any condition they would ever consent to re- union; and yet they equally omitted to declare that they would not so consent." The proceedings left no special interest, except one characteristic anecdote of Mr. Lincoln. The Confederate agents desired the recognition of the power of "President" Davis to make a treaty. Mr. Lincoln would not consent to this, would not in any event or in any way recognize another "President" within the territory of the United States. Mr. Hunter cited the example of Charles I. treating with rebels in his own kingdom. Mr. Lincoln replied that his only distinct recollection of that matter was that Charles lost his head!

MR. FESSENDEN IN THE TREASURY.

Soon after the Baltimore Convention, Mr. Chase resigned his position as Secretary of the Treasury. The relations between himself and the President had become personally somewhat unpleasant, but that there had been no loss of confidence or respect was proven by the President's nomination of Mr. Chase to be Chief Justice of the United States as the successor of the venerable Roger B. Taney, who died on the 12th of October (1864). William Pitt Fessenden succeeded Mr. Chase in the Treasury, and entered upon his duties on the fifth day of July. He was admirably fitted by every mental and moral quality for the position, but he did not possess the physical strength necessary for the arduous labor which it imposed. He consented in response to the very earnest request of Mr. Lincoln to accept the trust for a brief period. It was of great importance to the country, to the Administration, and to Mr. Lincoln personally that Mr. Chase should be succeeded by a man of no less eminent character.