It is one of the rarest phenomena which present themselves in the Christian laws of the Orient, that in connection with this state-life based upon pure private right, the modern notion of society should have had its rise. One of the first appearances of change was in the criminal law of the assizes. Not that this rose above the spirit of the times, for it was barbarous in the extreme, impregnated throughout with the idea of literal retaliation—for instance, whoever secretly buried a dead body, must be buried alive—and again, it recognized scarcely any punishment but death and the most horrid mutilations, such as cutting off of nose, ears, tongue, hands, etc., and cannot, with all the palliations arising from the necessities of the Crusaders, be regarded as an improvement upon the preceding.

But among the genuine products of the middle ages, suddenly arose a principle which has become the basis of modern criminal law, though it won its first recognition, and that with difficulty, centuries later.

Punishment inflicted upon the guilty was at that time universally regarded as an atonement due to the injured person, but the assizes declare: 'Punishment is decreed, not in the interests of the injured, but in those of the entire state.'

In carrying out this principle, the sufferer from theft, when he might have taken the thief and voluntarily let him go, was punished by forfeiture of body and estate to the feudal lord, and the assizes declare that 'when no one in case of murder appears to make complaint, the king, or the ruler of the land, or the lady of the city where the dead was found, shall do so, for the blood of the slain cries to heaven.'

As before intimated, there are two grand divisions of the assizes. Those of the high court contain a complete system of feudal law, of which indeed a fuller view could scarcely be found than the one above named by John of Ibelin. The feudal law of the Orient was like that of France of that day, though peculiarities are everywhere to be met with as the result of the constant state of siege in which Jerusalem was involved; and hence the fact that the feudal system, which had its birth in war, and led ever thither again, appears nowhere more clearly and fully than in these assizes.

Reference has been made to the shortness of the period allowed by the statute limiting titles and claims. Of the same class is the rule that when a fief falls to one, he cannot claim it unless he be present in the land and seek the investiture in his own person. Hence is explained the oft-repeated maxim of the feudal lawyers of Jerusalem: A mort ne peut aucune chose escheir; which means that in matters of inheritance, substitution is not valid, and each must derive his claim from the last holder of the fief—thus restricting the succession of minors, who would need protection.

In this oriental law there was a peculiarity in regard to granting leave of absence to vassals. We have seen that the vassal was not allowed to leave home, lest his services should be lost to the state in a time of danger. But a journey back to Europe might be necessary, and in this case the two interests were united by an arrangement called le commendement du fief, by which the vassal gave up his fief to his lord, who received its income and secured the absent owner against the provisions of the law limiting the claims of absentees to one year.

Feudal duties were the same in the Orient as in the Occident, since fidelity is always and everywhere the same thing; but the greater perils which encompassed the Crusaders led to a more rigid exaction of the performance of these duties.

In regard to the homage which the feudal tenant performs on entering into this relation, the assizes say:

'If a man or woman pay homage to the chief feudal lord of the kingdom, they shall, with their folded hands lying in his, say: 'Sire, I will be your vassal for this fief, and I promise to protect and defend you for life and for death.' And the lord shall answer: 'And I accept thee with God's faithfulness and my own;' and he shall in faithfulness kiss him upon the mouth.'

A special duty in the Orient was to redeem a feudal lord from captivity among the enemies of the cross, even by pawning or selling one's own fief or that obtained through a wife. The chief duty, however, even in this case, was that of military service, and in the Venetian manuscript is to be found the rule by which this service was to be rendered.

A peculiar case deserves here to be mentioned. It might happen that a man held tenures from two different lords. This was not in itself inadmissible, and he had only, in accepting the latter fief, to make a reservation of his fidelity to an earlier lord. He could then discharge his duty to one by a substitute, and might even render service to one against the other. It was only forbidden personally to fight a feudal lord. John of Ibelin says:

'In such case the vassal shall appear before his lord, and shall say to him, in the presence of his men: 'Sire, I am your man, but with reservation of my duty to N. N. This N. N. now comes in arms against you, and I regret that I cannot help you, because my lord is on the other side, and I cannot bear arms against him, where his body is; I must, therefore, report myself as personally serving neither you nor him. I desire my people to serve you against him who would rob you, and who now leads the contest against you.''

Women to whom a fief or the guardianship of one should fall, could not of course render military service; but in place of this, they were obliged to marry—a punishment by most perhaps not deemed severe, except for the fact that they could not freely choose their own husbands.

John of Ibelin says that 'if a fief fall to a girl of twelve years or more (if younger, she is to be held under a guardian, according to law), the feudal lord can summon her to take a husband.' This may be done by the lord in person, or by his authorized attorney, who thus addresses the lady: 'My lady, I offer you, in the name of my lord (name given), three knights (names all given), and call upon you in his name, within the time of (time specified), to take one of the three whoso names have been given you.' This may not, after all, be a great hardship, for the ladies of our time and land are not sure of three candidates to choose from. These three must of course have been of the lady's own rank, and have given their own consent to the presentation of their names—otherwise it would be no offer.

'If the lady thus warned shall not, within the prescribed time, either choose one of the three candidates, or assign for not doing so a reason acceptable to the court,'—for instance, that she was more than sixty years old would be a valid reason, since if she had a husband living, he would not be required to serve after that age,—'she shall lose the fief for one year, after which time the lord may challenge her again.'

On the other hand, if the lord shall omit to make this demand, the lady can serve a warning upon him, that he must, within three times fourteen days, present her three eligible candidates for her choice in marriage, and if he shall fail to do so, she can then choose for herself. If the lord had failed, however, because he could not find the men who were willing to run the risks of this candidacy, it is difficult to perceive what additional inducements the lady's efforts could furnish.

So much for the law of the chivalry of the kingdom, I now pass to that of the burghers.

The assizes of the burghers' court offer neither in matter nor in form so complete a system as that already noticed. On the contrary, it is but a motley and confused jumble, more like a collection of decisions in concrete cases than a proper law book. They are, however, exceedingly rich in interesting matter.

The character of this burgher class, and indeed its very existence, is a most remarkable phenomenon; for this respectable class, occupying a position almost on a level with that of the nobility, was several centuries later in making its appearance in the Occident. The burgher who struck a nobleman lost his hand, while the nobleman who struck a burgher lost his horse, and must pay one hundred sols. Later, however, the burgher could commute his punishment with a fine of one thousand sols, and must pay one hundred sols as an indemnity, thus making the two cases nearly equal.

The term burgher has generally been understood to designate the inhabitant of a city, whose quiet and orderly life was passed in occupations of trade and industry; but such burghers were surely not to be found in the kingdom of Jerusalem; for the burghers sprang from the common people, of which the accounts of the Crusades made the chief portion of the army of the Crusaders to have consisted; and when we remember how little respect these showed for the princes in the army—that they once chose Godfrey Burel out of their own number as their leader—we shall not be astonished that there arose from this class of warriors a population who were not to be subjected to a humiliating position in relation to the chivalry.

A free and vigorous life shows itself in the whole system of law which governed these burghers. Here we meet, for the first time in the middle ages, the principles of marine and commercial law, rising above the then rather limited views of the Roman law on those subjects, which in the German law books are not mentioned at all. We find among other things strict personal arrest of delinquent debtors—a very ingenious provision against fraud—and a settlement of those cases of intervention which have so troubled our jurists, by an application of the rule, 'The hand must defend the hand,' as follows:

'Be it known that if any one lend his horse to another, and the latter say to him: 'To-morrow I shall bring your horse back,' and being allowed to take the horse away, he is apprehended by another person for debt, this creditor may take the borrowed horse for his debt.'

The two following laws give us something of an insight into the condition of the kingdom of the Crusaders, the one in relation to servants, the other in relation to physicians:

'When it shall happen that a man or woman hire a man servant or a chambermaid, reason requires that the man or woman who hires them shall have power to dismiss them at will, because they are bound for their wages only so long as they serve. But the servant or maid cannot separate themselves from their master or mistress without their consent until the termination of the engagement. But when the servant or maid thus hired shall wish to go back over the sea, reason requires that the man or woman grant them leave, because they wish to cross the sea, and they shall pay them according to the time of service. * * * When, however, servant or maid shall depart without such leave, they break faith and forfeit their wages for the whole time of service. And if such servant be found with any other person in the kingdom, his or her hand with which they made promise to serve and afterward denied God and broke faith, shall be pierced through with a red-hot iron.'

Again:

'When it shall happen that any one hire a servant or chambermaid, become angry with him or her, and box their ears, and the latter enter complaint to the court, reason requires that the man or woman be not subject to judicial proceeding for a simple boxing of the servant's ears. But if the man or woman shall excessively beat the servant or maid, or cause the same to be done, or shall inflict upon them an open wound, and they shall enter complaint of the same to the court, law and reason require that the servant or maid receive justice the same as against strangers.'

In regard to physicians, the assizes provide as follows:

'If by any mishap I wound one of my slaves, or the same be wounded by any other person, and I call a physician, who agrees with me to heal him for a stipulated price, and then says to me on the third day, after having well observed the wound, that he can heal it without fail, and it come to pass, because he uses the lancet unskilfully, or when he should not have used it at all, or because when he should have cut the wound or swelling in the top or lengthwise he cut it obliquely, and the patient die in consequence; or when the slave's wound is in such place as to require warm applications, for instance upon the brain or nerves, and the physician always makes cold ones; or if my slave have a swelling upon a part where emollients should be applied to mollify the sore and cause suppuration and discharge, and the physician make always warm and dry applications by which the sore is internally inflamed, and he die of it; or if the physician do not attend him every day, and he die in consequence, reason requires that he pay what the slave was justly worth before he fell sick, or what the owner had paid for him; for this is right and reasonable, according to the assizes of Jerusalem. And the court shall expel that physician from the city where he performed such malpractice. But if the physician can show before the court that the patient drank wine or ate meat which he had forbidden, or did anything else which he should not have done at all, or at least not so soon as he did, reason requires that, even though the physician could or should have treated him differently, he should not be made to pay for him; for it is more reasonable to suppose that death followed from the patient's doing what was forbidden than in consequence of the medical treatment. But if the physician make no prohibition in regard to eating or drinking, he must still pay for him, for the physician is justly bound, as soon as he sees a patient, to direct what he shall eat and what he shall not eat, and if he do not do this, and mischance occur, it should come upon him.'

'And if a physician be guilty of such malpractice in case of a Frankish man or woman, reason requires that he should be hanged.'

We can see from this assize that a law sometimes effects the opposite of that which was intended, and unreasonable provisions oppress the patient instead of the physician. Amalrick I fell sick, and felt that he needed an aperient, but the Syrian physicians refused to prescribe such. He sent for the European physicians, and they also declined to take the hazard of prescribing. To obtain the prescription there was no alternative but to issue a royal rescript absolving the physicians beforehand from the provisions of this assize. In the mean time, however, the favorable period passed by and the king died.

In regard to marriage—the most important of social institutions—the provisions of the canon law are mainly reproduced, with the genuine German practice of joint possession of the property, as expressed in the passage: Saches que nul home n'est si dreit heir au mort come est sa feme. ('No one so properly as the wife inherits the property of a deceased husband.')

Still, however, oriental views left their traces upon this institution. This appears in the facility with which a man could obtain a divorce from his wife, and in the jealous strictness in regard to conjugal infidelity. Vitry says:

'The pullans'—a name analogous to that of creole in the West Indies, given to the descendants of the Crusaders in the Orient—'have gone so far in their oriental zeal, that they no longer allow their wives to go to church, to processions, or to any religious exercises.'

When the council of Neapolis had provided cruel and barbarous mutilations for persons unfaithful to the marriage vow, King Amalrick issued the assize that 'the man who should detect his wife in the commission of such offence, might without guilt kill both parties;' but he added the very nice distinction, that 'if he killed one party and spared the other, he should, as a murderer, be hanged without grace.' Perhaps this law may have been a device to save both parties; for a man would naturally hesitate to undertake a work, failure to complete which would cost him his life.

The last means everywhere for establishing truth was the judicial combat. There are found, by way of exception, in the assizes of the burghers' court, cases of the judgment of God by the fire test, in which the defendant is acquitted of the charges against him, by holding in his hand, without injury, for a given length of time, a red-hot iron. Torture was sometimes prescribed, and the so called abrevement (water test) used. The assize says:

'If the accused confess the crime charged, he shall be hanged; if he do not confess, he shall be drawn to the torture, and kept in the water until he shall confess, and shall then be immediately hanged. But if he continue three days without confessing or dying under torture'—a thing not easily imagined—'he shall be imprisoned one year, and then set free.'

The complainant must prove a charge of murder, high treason, or manslaughter, by single combat with the accused. Women, old men, and non-combatants might be represented by a so-called champion.

John of Ibelin describes the combat as follows:

'The knights who engage in the combat for murder or manslaughter must fight on foot and without helmet, with heads shorn around, being dressed in red military coats, or shirts of red silk falling down to the knees, the arms cut off above the elbow, red breeches of cloth or silk, and shields higher by half a foot than their heads, with two holes of the ordinary size, so that the antagonist can be seen through them. Each shall have a lance and two swords, one of the latter girded about him, the sheath drawn up to his hips, the other fastened to the shield, so that he can have it when needed.'

Only three days may intervene between the interchange of pledges and the combat.

'When the combatants who shall have mutually pledged themselves to the combat present themselves, they must appear on the appointed day on foot, between six and nine o'clock in the morning, before the palace of the lord, and call him, being clothed and equipped as above, having also several shields and swords borne before them, in order that, on entering the place of combat, they may select what they need.

'And then the lord shall cause all the weapons to be examined by his court, so as to know whether they are in order; and if one lance is longer than the other, he shall shorten it, and he shall have the two combatants well watched as they go to the place of combat, that neither may run away; also that they receive no bodily injury or annoyance, and be not insulted or derided; for the lord must protect them against all this, since they are in his keeping. When they shall have entered the place of combat, the feudal lord shall station some of his people to watch the place, and one of these shall say, in the presence of the others, to each of the combatants: 'Select your weapons which ye desire in order to finish the combat.' This they shall do, and the weapons selected shall be kept in the place, and the rest carried away. Then shall each combatant be made to swear that he carries about his person neither talisman, nor charm, nor witchcraft, that he has had no such provided for this combat, and that no other person has done this with his knowledge, that he has neither given nor promised anything to any one to procure the making of talisman, charm, or witchcraft, in order to aid himself or damage his antagonist in this contest, and that he bears about him no other weapons than those seen by the court.

'Then shall they bring the combatants together upon the place of combat, where there shall be a copy of the gospels. The accused shall first swear upon his knees with his right hand upon the gospels, and shall say: 'As I have not murdered the deceased, so help me God and the holy gospel.' The complainant shall say that he lies, and that he takes him up as a perjured person, and shall then take him by the thumb, and shall swear: 'So let God and his holy gospel help me, as the accused murdered the deceased.' And then shall the guards station the combatants, one at each end of the place, and the proclamation shall be made at all the four corners of the field, that no one of whatever rank shall do or say anything by which either party can be helped or hindered, and in case any one shall do so, his person and goods shall fall to his feudal lord. And if the corpse of the murdered person is present, it shall be so placed as to be seen over the entire place of combat, and the complainant, whether man or woman, in case of being represented by a combatant, shall be there bound so as neither to benefit nor injure either of the parties by word, or deed, or bearing, and shall only pray to God, but not so as to be heard by either combatant. * * * And the guard shall so arrange that the sun cannot shine more in the face of one than of the other; and one of the guards shall then say: 'Shall the command now be given? We have made all ready.' And the lord shall answer: 'Let them come together.' And they shall let them come together, and shall withdraw themselves; and if one fasten upon the other, and they wrestle and fall, the guards shall go to the place and as near to them as they can, in order to be able to hear in case one shall cry for grace; and if one cry and they hear, they shall say to the other, 'Cease; it is enough.' And then shall the lord cause the conquered party to be taken to the gallows and hanged by the neck' (a grace scarcely worth crying for), 'or his corpse, in case he had been killed without crying for grace. The weapons of the vanquished man and those which the victor threw away belong to the lord. Should it appear in the course of the contest that one of the parties had other weapons than those which had been seen by the court, the guards shall seize him, and the lord shall pronounce sentence upon him as a murderer.

'And if any one, who is no knight, is accused of murder, it shall be done as above, only that the combatants shall be armed otherwise than as knights.'

If the vanquished man did not fight for himself, but as a substitute, his lot was subject to some variation; if he fought for a woman, then not he, but the woman, was to be hanged; if he fought for a witness who had been accused of perjury in a civil suit, then the champion was to be hanged and the perjured man merely lost his right of testifying on oath; in case of representing any of the principal parties in a criminal process, a vanquished champion and the person whom he represented were both to be hanged; and in case of representing a witness in a criminal case, the vanquished champion the witness, and the complainant were all hanged.

It is easily perceived that in such single combat the judgment of God was not upon the main question, but upon the question which of the two had committed perjury. So in case of the application of the single combat in civil suits, which, however, could take place only when the amount claimed was at least one mark.

Whoever prosecuted a claim must establish it by at least two witnesses; and if he brought these, the defendant could not establish the contrary by better witnesses or documents, but must either submit, or convict the witnesses of perjury. This was done as follows: When the first witness, kneeling, had taken the oath, the defendant stepped forward, took hold of the witness' thumb, and raised him up, declaring him a false and perjured witness, and that he was ready to maintain this with his life. Then followed the judicial combat as above.

The procedure was similar when any one would contest a judgment already rendered. The court itself must be solemnly accused of falsehood; the complainant must fight with all the associate judges of the court, or have his tongue cut off as a calumniator. Whoever in such case did not vanquish all the judges of the court, and that, too, on the same day, must be hanged.

The obvious remark in relation to all the processes above described is, that unless hanging was much more honorable then than now, however numerous the capital crimes committed, probably few complaints were entered, very few witnesses accused of perjury, very few combatants cried for grace, even in the most desperate struggle, very few judicial decisions were contested, and very few injured husbands used their right of punishing the unfaithful wife and her accomplice, since all parties, innocent and guilty, stood about equal chances of being hanged at the end.

The Crusades furnish the subject of frequent popular disquisitions and, sketches, but the laws by which the Crusaders lived in their promised land have rarely, if ever, been popularly sketched in this country. This brief notice may do something toward supplying this desideratum, and at the same time toward reconciling the most poetic reader—the greatest admirer of the institutions of chivalry—to having been born in this prosaic age, nearly a thousand years later. It may make such persons feel that even 'the glorious uncertainty of the law' has some advantages over the judicial processes of the kingdom of Jerusalem.

But I must not close my article, as some in similar cases have done, without informing the reader to whom he is indebted mainly for it. I have myself often entered that hall in the Royal Library at Munich, and looked with interest upon that manuscript of the Assizes of Jerusalem, but I have never studied it. In the winter of 1858, however, I heard a course of popular lectures on various subjects, by a number of distinguished men, before an audience of invited ladies and gentlemen, at the lecture room of Baron von Liebig's chemical laboratory. One of these was delivered by Baron de Voelderndorff on the Assizes of Jerusalem. On opening my box of books, after my return from Europe a few weeks since, I came across a volume containing the course of lectures to which I have referred. As my eye rested upon this one, I remembered the interest with which I had listened to its original delivery, and resolved that the public should have a chance to feel something of the same. This article is the fruit of that resolution, and though not strictly a translation, may still be regarded as little more or less than such, and the credit given wherever the reader shall deem it due.

FOOTNOTES:

[1] Jurors, larceny, theft, murder.

[2] Francis de Pitaval, born at Lyons, in 1673, gave this word to the judicial literature of Europe, by a work entitled 'Causes celebres et interessantes.'

[3] La haute cour.

[4] Assises de la haute cour.

[5] La chevalerie du royaume.

[6] Bourgeois.

[7] Cours de la chaine.

[8] Cour de la fonde,—fonde signifying the place, probably, where traders came together.

[9] 'Lettres du Sepulcre.'



LETTERS TO PROFESSOR S. F. B. MORSE.

LETTER I.

LOYALTY AND SOVEREIGNTY.

Dear Sir: I address you in your quality of President of the Society for the Diffusion of Political Knowledge, and with reference to your speech and your letter to Mr. Crosby, published in the tracts issued by your Society. I should have done so sooner but that I hoped Mr. Crosby would himself have taken the matter in hand; and though it is somewhat late in the day, I venture to recall the public attention to what you have put forth, both because in a general view it is never too late to expose error on matters of fundamental importance, and because, in this case, there are some special reasons why it should be done, arising from your personal position. If you were a mere hackneyed party politician, I should not think it worth while to take any public notice of what you have said.

I should be glad to confine myself strictly to the question of the truth or error of what you have advanced, apart from its bearings on yourself personally; but as most of what you have put forth is in the way of vindicating your loyalty and justifying your conduct at this time, I shall have to consider also its validity for your purpose. This is a necessity of the case which I have not made. Before proceeding to your letter to Mr. Crosby, I shall first consider some matters in your speech.

In a crisis such as this, when the clutch of the wickedest rebellion the world ever saw is grappling the throat of the national existence, you are openly in opposition to the action of the Government, and apparently in sympathy with the rebels. Yet you claim to be loyal, and you vindicate your claim in a very remarkable way. Loyalty with you is fidelity to the sovereign. That sovereign is the people. To that sovereign you profess to bear true allegiance, and therefore your loyalty is not to be impeached, however much you may oppose yourself to the action of the authorities constituted by the sovereign. A singular sort of loyalty; very much of a piece, some may say, with the religion of the man who disobeys the bidding of those whom God bids him obey, because of his profound reverence for the supreme authority of God!

You, of course, deny this. You make the issue that the action of the constituted authorities is contrary to the will of the sovereign—is, in fact, the exercise of usurped powers. You propose to appeal directly to the sovereign for the determination of this issue; that is, you propose to bring the sovereign to be of the same mind with you, if you can. 'We mean,' you say, 'to use our rights of free discussion, and to look for the answer to our appeal to the ballot box.' And you ask, 'Is it disloyalty to appeal to the sovereign, or to exercise that portion of the sovereign power which of right belongs to us, as part of the people?'

Now, there is certainly nothing necessarily disloyal in making and discussing before the people the issue you make, any more than there is anything necessarily villanous in a man's availing himself of his extreme legal rights before the courts: whether it be so in fact or not, depends on the circumstances, on the spirit, purpose, and effect of the thing. But there is a great deal of nonsense (pardon me) in calling this an exercise of that portion of the sovereign power which of right belongs to you as part of the people—nonsense which, if it were merely nonsense, and as palpable to everybody as it is to those who are accustomed to correct thinking and accurate expression on the subject, it would not be worth while to expose; but which, being taken for sound sense (as it is very likely to be by many of the people among whom you have undertaken to diffuse political knowledge), becomes very pernicious nonsense, that ought not to be suffered to pass.

A portion of the sovereign power belonging to you and your associates as individuals! The sovereignty of the nation split up into fractional shares—each of you possessing (say) one thirty-millionth part of the integral unit, and possessing it, of course, exclusively and therefore separately, if you are to exercise it individually, even in the way of clubbing your respective shares as you propose! Heard ever any one the like? Why, you might as well say that each individual in the nation possesses the entire sovereign power. As well say thirty million whole sovereigns, as thirty million fractional sovereigns. Equal falsehood, equal absurdity, either way.

Political sovereignty is as incapable of division as it is of forfeiture or of alienation. It is the right and power which society—considered as the state—has to do whatever is necessary to its existence and welfare. It resides in the whole people as one body politic. It is not an attribute of individuals. Individual rulers are sometimes called sovereigns; but they cannot be such in the strict and just sense of the term. It is simply impossible that any individual should possess in himself the inherent, indefeasible, inalienable, and inviolable right and power to govern a nation; and it is no less impossible that you and your associates, in your separate capacity as individuals, should possess any 'portion' of it, and therefore none 'of right belongs' to you.

I do not deny your 'rights of free discussion.' But I deny that they are sovereign rights, and that the exercise of them is an exercise of sovereign power. They are individual, personal rights, and that of itself determines the absurdity of calling them sovereign.

Besides, in point of fact, they are rights which are practically valid for you only in the will of the sovereign. Whether they are in their nature primordial or prescriptive rights, makes no difference as to this point. The will of the sovereign is the only effectual guarantee of the natural rights of individuals, and the only source of their political rights. The sovereign recognizes the former, confers the latter, and secures both. There is not a particle of political right or power possessed or exercised by any individual in the nation which is not derived by grant from the sovereign power. A certain number of individuals in the nation have, for instance, the right of voting at the primary elections and for the determination of certain questions submitted to a popular vote. This is a delegated right, granted only to a certain number of individuals, not as sovereigns or parcel sovereigns, but as subjects of the state, acting, for certain definite purposes, and within certain prescribed limits, as agents of the sovereign power.

So with all other political powers exercised in the nation—whether legislative, judicial, or executive; whether exercised by individuals or by constituted bodies: all stand in the will of the sovereign power; all are derived and delegated powers—ministerial, and not imperial.

* * * * *

It is easy now to see the pernicious influence which your doctrine about the sovereign rights of individuals must have upon the unreflecting masses who accept it as sound sense, and particularly upon those of them who vote at the primary elections.

In the first place, it generates a false and practically mischievous notion of their relation to the other constituted authorities of the state. You are yourself an example in point.

You ask whether it is a mistake or an exaggeration in you to 'say that presidents, and governors, and all the departments of State or Federal machinery, are all subordinate to the people?'

It is certainly neither a mistake nor an exaggeration to say so, provided by the people you understand the whole people, in their sovereign capacity as one body politic. But it is an egregious mistake, an absurd and mischievous falsehood, to say so, if by the people be understood those who vote in the primary elections—whether the concurring majority of them or all of them. The people who vote are not the sovereign people. In their capacity of voters they are—in common with all the other functionaries of the Government—cooerdinate parts of the indivisible organism of the State. The legislative, judicial, and executive functionaries of the Government—constituted directly or indirectly through the ministerial agency of their votes—when thus constituted, hold their powers not from the voters, but through them from the sovereign; and to that sovereign alone are they responsible for the exercise of them. They are, therefore, not 'subordinate' to the voters, either in the sense of deriving their powers from them, or in the sense of being accountable to them, and there is no other sense of the term that is not futile here. They are subordinate in both these respects to the sovereign power of the nation; but so, too, are the voters themselves; and the former no more than the latter.

But those who accept your instructions are not likely so to understand this. They are not likely to be wiser than their teachers, and cannot perhaps be so safely trusted with the dangerous edge tools of false doctrine. You tell them that all Government officials, in all departments, are subordinate to the sovereign people; and they are sure to understand it that they, the voters, are the sovereign people, and that all the constituted authorities are subordinate to them in point of power—hold their powers from them alone, and are responsible to them alone—while they themselves hold their powers from themselves, and are responsible only to themselves. Hence (and you yourself have in this speech set them the example) we hear them talking of themselves as the 'masters,' and Government officials as their 'servants,' just as though both alike were not servants of one and the same sovereign master, whose right and power it is—within the sphere of the state, and for the just ends of the state—to control every individual in the nation. There is a world of mischief in the use of such words among the ignorant and unreflecting, and demagogues well know how to avail themselves of the power it gives them.

The pernicious tendency of your doctrine about the sovereign power and sovereign rights of individuals is seen in another and more general point of view.

Political sovereignty—residing, as we have seen it does, in the whole people as the state, or as one body politic—is not an absolute sovereignty. It is limited to the just ends of the state—the maintenance of social justice and the general security and welfare. There is no sovereignty to do wrong. The state is so far a moral person that its sovereignty cannot rightfully be exercised from mere will, arbitrary caprice, or passion; but only dutifully, in just ways, and for its proper ends.

But the people whom you teach to consider as themselves individually possessed of a portion of the sovereign power, and (as they will think) so far sovereigns, have mostly no other idea of sovereignty than the absolute right to have their own will and way in any way. Regarding their political rights as their own, inherent, personal possession and property, and not as public trusts, they are not likely to feel themselves limited in the manner of exercising them by any sense of duty to the state. The stronger this false notion of rights, the feebler the sense of moral obligation in the exercise of them. Woe to the people to whom rights are everything and duties nothing, or to whom the standing for their own rights is the highest and most sacred political duty! Among such a people, in times of high excitement, springs up a political fanaticism far less respectable in its origin, and far more dangerous to the public welfare, than the philanthropic fanaticism which you denounce in language so nearly bordering on fanatic violence.

I am sorry to have been obliged to insist at such length upon the simplest elements of political science and the theory of our Government. But you have made it needful. You have put forth notions radically false and practically mischievous on fundamental questions; and you have done it in the way most calculated to impose on the minds of the ignorant and unthinking—by quietly assuming their truth. One wonders to see you apparently so unconscious of the utter contradiction between that which you take for granted and that which, in the general consent of respectable writers and thinkers, is held to be settled beyond debate. There is one at least among your associates (if I mistake not) who would be ashamed to stand godfather to your assumptions in regard to sovereignty and sovereign rights.

It is important for one who is so fond as you are of making distinctions, to see to it that they are just and valid. It is of immense moment that one who builds so much on words should rest his structure on the solid foundation of a correct and exact conception of them. Words are often things, and sometimes things of tremendous consequence, and none more so than those which enter into the grounding principles, of politics. No theoretical error but works practical mischief. No one should be more aware of this than he who undertakes the 'diffusion of political knowledge' among the people of this country. The false notions on sovereignty and sovereign rights which you have put forth, are precisely the ones to take root and bear evil fruit among the least instructed and least thoughtful, the most passionate and unscrupulous of our people. In short, it is among the lowest and worst elements of our social life—among the sort of persons that swelled the majorities in the Sixth Ward of Sodom—that you win find your most numerous disciples and readiest coadjutors in your bad work of opposing the constituted authorities of the state; and this at a time when every good man and true patriot should think much more of duties than of rights, and be more willing to forego personal rights for his country's good, than by factious assertion of them to weaken the arm of public power struggling to save the national existence.

I shall go on in another letter to consider your utterances on the distinction between the Government and the Administration, and your special pleas for hostility to the constituted authorities.

LETTER II.

GOVERNMENT AND ADMINISTRATION—CONSTITUTIONALITY.

Dear Sir: I now proceed to consider your letter to Mr. Crosby, which I cannot help regarding as fitted to excite sentiments of mortification as well as grief in the minds of all intelligent men and good patriots who in time past have known and honored you. What such as have not known or cared for you will be apt to think, I shall not undertake to say.

One of Mr. Crosby's questions was this: 'What appears to you the sufficient reason for a Christian citizen to ally himself with others for the extreme and radical purpose of undermining and paralyzing the power of the Government at a crisis when unanimity of support is plainly essential not only to the welfare but to the very life of the nation?'

This is a plain question, and one may well wonder how it was possible for you to suppose that you were fairly meeting it and effectually rebutting the charge it implies by raising the distinction you make between the Government and the Administration. The sense in which Mr. Crosby used the word Government is perfectly obvious; and if he had a right to use it in that sense—as he undoubtedly had—it seems to me it was for you to answer it in its plain meaning; to answer the question he asked, and not another, which he did not ask. But you preferred to go into critical analysis and to make sharp distinctions of words. Let us look at the work you have made of it.

You tell Mr. Crosby that he has 'fallen into the prevalent error of confounding the Government with the Administration of the Government,' and that 'they are not the same.' Now, they are the same, when both words are used to signify the same thing.

You say that 'the word government has, indeed, two meanings.' Webster gives a round dozen. In its political applications it has four. You add, 'In order to relieve the subject from ambiguity'—though there is in this case no ambiguity to relieve—'that the ordinary meaning of government in free countries is that form of fundamental rules and principles by which a nation or state is governed,' etc. No doubt this is one of the meanings of the word. No doubt government, considered with reference to its quality or the manner of its constitution, does often signify a system of polity, a determinate organization and distribution of the supreme powers of the state. But this is not its 'ordinary' meaning—either in the sense of its being the most correct and proper, or the most frequent use of the term. The other meaning to which you refer—that which makes it 'synonymous with the administration of public affairs'—is equally legitimate, and a great deal more frequent. The word not only 'sometimes' has this meaning, but has it, I presume to say, ten times oftener than it has what you call its 'ordinary meaning,' and for the sufficient reason that there is occasion to speak ten times of Government as an actual exercise of the supreme powers where there is to speak of it once as an abstract system of polity.

But you say that when the word is used in 'a meaning synonymous with administration of public affairs, then 'the Government' is metonymically used for administration, and should not be confounded with the original and true signification of the term Administration, which means the persons collectively who are intrusted with the execution of the laws, and with the superintendence of public affairs.'

Pardon me, but this strikes me as a singular combination of futilities and falsities. In the first place, when the word government is used synonymously with administration, to signify in a general way the conduct of public affairs, there is nothing 'metonymical' in the case: one word is not rhetorically put for the other; either word may be rightfully used to signify the same thing, that is, they are so far forth simply synonymous terms. In the next place, what in the world do you mean by saying that the 'original and true' signification of the term administration is the persons collectively who are intrusted with the execution of the laws, and with the superintendence of public affairs? It is one of the meanings of the word indeed, and so a 'true' one—though no more true than its other authorized meanings, but it is not the 'original' one; on the contrary, it is secondary and derived. And finally, what earthly warrant have you for talking of 'confusion' being made when the Government is used to signify 'the persons collectively' by whom public affairs are conducted? It is just as correct to use the word Government in this sense, as it is to use the word Administration. Both words are rightfully so used; and you would here, I suppose, be in no error in saying 'metonymically' used, if you have a fancy for that epithet: Administration is 'metonymically' put for the official persons and acts of the persons who have the direction of national affairs, and Government is just as often 'metonymically' put for the same persons and acts—and with equal right; for it is authorized by established usage, which is the supreme law of language. By what right, then, do you assume to limit the term government to signifying a 'form of fundamental rules and principles,' or at least to insist that when used synonymously with administration, it shall not be used to signify the 'persons collectively' by whom the affairs of the nation are conducted; and when Mr. Crosby uses it—as he obviously does—in that sense, to talk to him of 'error and confusion?' When Lord Russell spoke the other day in the British Parliament of 'awaiting an explanation from the American Government' in the matter of the Peterhof, and when the London Times spoke of 'the Government at Washington being anxious,' you might as properly have taken them to task for the 'error' and 'confusion' of talking as if our 'form of fundamental rules and principles' could give an explanation, or feel disturbed in mind. Mr. Crosby had a perfect right to use the word in the sense in which he obviously did use it. He fell, therefore, into no 'error.' He 'confounded' nothing; he did not identify different things, nor wrongfully put one thing for another.

In short, your distinction between the Government and the Administration falls away into a sheer, absurd futility. And well if it escape a harsher judgment; for when you go about to make irrelevant distinctions in a plain case, where there is none to be made, and tax your correspondent (no matter in what soft phrase) with errors and confusions when he was guilty of none—it will go nigh to be thought by many an unworthy subterfuge, serving no other purpose than the fallacious one of shifting the question, and misleading dull minds.

Of the same sort is what you further say in support of this futile distinction. You talk of the Administration being 'utterly destroyed without affecting the health of the Government,' of the Government 'remaining intact, unscathed, while the Administration is swept out of existence;' and you say 'every change of Administration, at every election, exemplifies this great truth'!

By Government, I suppose you here unconsciously mean something different from what you had before defined as its 'ordinary meaning,' for you would hardly talk of the 'life' and 'health' of an abstract scheme of polity, of a set of 'rules and principles.' I take it, therefore, that you mean, or ought to mean, a living, acting something. Now imagine a Government without an Administration, with its Administration 'utterly destroyed,' 'swept out of existence.' How long afterward would it continue to exist? One day? One hour? One moment? No; the 'life' of a Government implies the perpetual, uninterrupted exercise of the supreme powers of the state, and that depends upon the undying official life of living administrative functionaries; and therefore to say, as you do, that the Administration is 'utterly destroyed,' 'swept out of existence,' every time new members are elected to fill the place of those whose term of office has run out, is an absurd exaggeration of language, and certainly serves no good purpose, but only affords to those who are capable of being deceived by it a fallacious show of support to a distinction which I have proved to be irrelevant and futile in this case.

It seems to me it is not for you to talk about 'the prejudices and befogged intellects' of those who are unable to see 'in the light' of your notable 'explication' that 'opposition to the Administration'—such as you now make—'is not opposition to the Government.' And your pretension 'to rally in support of the Government,' and to 'uphold and strengthen' it, by such opposition, will, I am afraid, be looked upon by intelligent men and good patriots as absurd and impudent to the last degree-an outrage, in fact, on language and on common sense.

* * * * *

But enough for your verbal distinctions—a great deal too much, indeed, were it not that if you can put forth such things in good faith, it is to be presumed that there may be others of easy faith enough, through disloyal predisposition of feeling, to take them as sound and valid, and so find comfort in error and an evil course.

To come now to the real merits of the case. You denounce the Administration, and seek to stir up popular disaffection to it, not for heartlessness, hesitation, and feebleness in prosecuting the war, but precisely for whatever of earnestness, promptitude, and energy it displays—not, in short, for what it does not do, but for what it does do, in striking down the rebellion. It is vain for you to justify your conduct by professions of allegiance to the sovereign people and loyalty to the Government. Why, it is the great will of the sovereign people (to whom you profess such faithful allegiance) that the Government (to which you profess such devoted loyalty) should be saved from destruction by crushing to utter extinction the armed rebellion that seeks its overthrow. And the Administration—and I may include Congress, since the action of that body is also the object of your denunciation—is the organ of the sovereign people, carrying out its sovereign will in all the acts you denounce. I do not say that the conduct of affairs has been in all respects satisfactory to the people. There have been too many things that looked to them like want of heart, want of earnestness, want of energy, want of wisdom, particularly in the earlier conduct of the war—too many indications of a disposition, if not to protract the struggle, yet to make this terrible crisis of the nation a time for political combinations and contractors' gains. They have seen these things with grief and stern displeasure. But the acts you denounce meet their sovereign approval. They are in favor of all earnest and vigorous measures for subduing the rebels, and for repressing and punishing traitorous sympathy with them, and treasonable aid and comfort to them.

But you denounce these acts as unconstitutional. To a bare, unsupported assumption it might be enough to say that the constitutionality of all these acts has been again and again affirmed by authorities of far greater weight than yours or mine—by scores of statesmen and judges of the highest eminence in the land. But I will go a little into the question.

I assert that it is perfectly constitutional to repress an armed rebellion by force of arms. It is the sworn duty of the Administration under the Constitution to do so. And all the acts you condemn come in one way or another under powers delegated to Congress and to the Executive. The constitutional right to make war carries with it the constitutional right to employ all the means sanctioned by the laws of war. This is the amply sufficient justification of each and every one of the measures you denounce—the Emancipation Proclamation, the Confiscation acts, the suspension of habeas corpus, and the arrest of traitorous abettors of the rebels.

As to the Proclamation—whether it is to be regarded as in its own proper effect conferring the legal right to freedom, or whether it is to be taken simply as a notification to the rebels (and to the slaves also, so far as it should get to their knowledge) of what the President, in his supreme military capacity, was about to order and enforce, as our armies might come into contact with the slaves—is a question not necessary to determine here. But no intelligent man needs be told that even in a war with a foreign enemy, with honorable belligerents, it is always a matter lying rightfully in the discretion of the commander of an invading army to proclaim and secure the emancipation of slaves; and in a rebellion like this it is the height of absurdity, or of something much worse than absurdity, to quarrel with the military policy of depriving the rebels of the services of loyal men forced to dig trenches and minister supplies to them. What constitutional right have rebels—in arms for the overthrow of the Constitution—to be exempted from the operation of the laws of war? Who but a rebel sympathizer would challenge it for them?

As to the Confiscation acts—it is enough to say that the Constitution gives Congress power 'to declare the punishment of treason.' Confiscation of property—as well as forfeiture of life—is a punishment attached to this great crime in the practice, I believe, of every Government that has existed. The rebels confiscate all the property of men in the South loyal to the Union, on which they can lay their hands; and their practice can be condemned by us only on the ground that the crime of rebellion makes all their acts in support of it criminal. But as you have no word of condemnation for the rebellion, so you have none for their confiscation acts. You would throw the shield of the Constitution only over the property of rebels. Loyal men, however, are of opinion that as the hardship of paying the expenses entailed by this accursed rebellion must fall somewhere, it is but just it should fall as far as possible on the rebels, rather than on us. If confiscation of rebel property chance to bear hard on the innocent children of traitors, it is no more than what constantly chances in time of domestic peace, in the pecuniary punishment of crimes far less heinous than treason; and loyal men see no good reason why the hardship should not fall in part on the children of traitors, rather than wholly (as in part it must) on our children.

As to the suspension of the privilege of the writ of habeas corpus: many foolish and disloyal people, out of the folly and disloyalty of their hearts, talk as if the thing itself were something wicked and monstrous; although the Constitution plainly provides that it may be done, 'when, in cases of rebellion and invasion, the public safety may require it.' Who is to judge of the necessity, and who is to exercise the power of suspending it, the Constitution does not declare; and in the silence of the Constitution and in the absence of any legislation on the point, the President might well presume that the discretion of exercising a power constitutionally vested somewhere, and designed to be exercised in emergencies of public peril, liable to arise when Congress might not be in session, was left to him. At all events, he took the responsibility of deciding that the public safety required its exercise. Congress has since justified his course, and legalized the power in his hands. The loyal people of the nation approve its action.

And finally, the constitutional right in certain cases to suspend the ordinary privilege of the writ of habeas corpus carries with it, of course, an equally constitutional right to make what you call 'arbitrary arrests.' The very object of granting the power to vacate the privilege of the writ is to enable the Executive to hold in custody such persons as it may judge the 'public safety requires' the holding of—without its purpose being frustrated by judicial interference. But the power to hold in custody is utterly nugatory, if there be no power to take into custody. To suppose that the Constitution grants the one, but denies the other, is to suppose it self-stultified by contradictory provisions—and that in a case where the public safety in time of imminent peril is concerned. The only consistent and sensible view of the Constitution is, that as the validity of the writ of habeas corpus is the ordinary rule, and its suspension the extraordinary exception—so the power to make arrests by civil process only is the ordinary rule, and the power to make arrests by military or executive authority is the extraordinary exception—both exceptions alike holding 'when, in cases of rebellion or invasion, the public safety may require.' In such cases the ordinary guarantees of personal liberty are constitutionally made to give way to the operation of the extraordinary powers demanded by the necessities of the state. It has always been so in all Governments; and every Government—unless it suicidally abnegate its highest function and supremest duty, that of maintaining itself and securing the national safety—must, in time of rebellion and civil war, possess such powers, powers to repress and prevent, in the first moment of necessity, what, if let go on, it might be too late to cure by judicial or any other process.

The rebels arrest, imprison, or banish those who are disaffected to their cause. They have a right to do so, provided their rebellion itself be justifiable; although they have made themselves objects of just execration and abhorrence by the abominable atrocities of cruelty and murder they have in thousands of instances perpetrated upon those whom they knew or suspected to be faithful to the Union. Your sensibilities, however, are excited only in behalf of the traitors among us, who have done more, and are doing more, to aid and comfort the public enemy, and to weaken the military power of the Government, than whole divisions of rebels in arms. While millions of good patriots stand amazed at the extraordinary and unparalleled leniency with which the Government has for the most part dealt with these traitors—that is, done nothing with them—you and your associates are fierce in your denunciations of its action in the few cases in which it has temporarily arrested them; and even the requiring of them to take the oath of allegiance as a condition of release, has been made matter of bitter invective. What but disloyalty to the national cause, what but sympathy with the rebels, can prompt such denunciations—made, too, with a view to stir up popular disaffection to the Government?

To sum up: I have shown that all the acts you denounce are as perfectly constitutional as they are just and necessary in principle, and sanctioned by the practice of all Governments.

But even if it were otherwise; even if the framers of the Constitution—never contemplating the possibility of such a crisis as the present—had embodied in that instrument no provision of extraordinary powers for such an exigency—none the less would it be the duty and the right of Congress and of the Executive to adopt whatever measures they should judge the public safety to require. What the Constitution had not granted they would be bound, if necessary, to assume; and even if the Constitution stood in the way, they would be bound to go over it in order to save the national existence. It is one of those cases in which necessity gives sovereign right. It is doubtless a very illegal thing to blow up people's houses, yet what civic magistrate, not a fool, would hesitate to do it when nothing else could arrest the conflagration of a city; and what court of law is there (outside of Liliput, where poor Gulliver was condemned to death for saving the royal palace by an illegal fire engine) so foolish as to sustain an action against the magistrate in such a case? What must be thought, then, of the good sense and loyalty of those who would interpose the Constitution to prevent the suppression of a gigantic rebellion, which puts the Constitution, the Government, and the national existence in imminent peril of destruction? Who, that knows anything which a man of decent intelligence is bound to know, but knows that 'the salvation of the republic is the supreme law?' On this principle the old Revolutionary Congress went, when, without a particle of delegated warrant from the several States, it assumed to act for the whole people as a nation, and, among other things, invested Washington with nearly dictatorial powers to carry on the war—a principle that Washington had already before acted on in more than one case of summary dealing with the Tories of his day. The sovereign sense of the nation sustained this assumption, and gave it the validity of supreme law. And I believe the nation would now sustain the Government in the assumption of any powers necessary to the putting down of the rebellion, even if ample powers were not already granted in the Constitution.

History has no record of a conspiracy more treasonable, flagitious, and infamous than that in which this rebellion originated; no record of a rebellion more foul, more monstrous, more wicked. The great heart of the nation is filled with just indignation and abhorrence. It understands and feels that every consideration of national interest and welfare, of national honor and dignity, of justice, and fidelity to the great trust received from the fathers of the republic, alike forbid the nation to consent to its own dismemberment, or to a compromise with rebels in arms, and a surrender of the great principles involved in the contest—principles which lie at the foundation not only of our national Government, but of all government, and all political order. It understands and feels that the preservation of the national Government, and of all the sacred interests bound up with it, is a necessity for the nation, is the one grand paramount obligation now resting upon it. Its stern determination is to carry on this war, at all costs and all hazards, so long as there is a rebel in arms. Hundreds of loyal leaders of the people—statesmen and jurists of the highest eminence, Southern born as well as Northern born—have said, and only articulated the great voice of the nation when they have said: 'Constitution or no Constitution, put down the rebellion, and save the national existence. Time enough then to inquire whether it was done under the Constitution, or outside of it, or over it.'

At the same time the people believe that the Constitution gives the Government ample powers to put down the rebellion, as they have also given it unlimited resources of men and money. It would not be true to say that they have always been satisfied with the progress and success of the Government in the use of these powers and resources. There was doubtless a time when the public feeling demanded a more clear and decisive policy, and more vigor in the prosecution of the war. The people would like to have had the whole military system of the country revised and made more perfect. They would be better pleased if measures had been seasonably taken by which we might have had a well-organized and well-drilled army of reserve, two hundred thousand strong. Appreciating, however, the circumstances of the country at the opening of the war, the gigantic magnitude of the rebellion, and the immensity and complication of the problems pressing on the Administration, they have on the whole been disposed to be patient and trustful. And as long as they believe there is an honest, earnest purpose in the Administration to extinguish the rebellion by force of arms, they will sustain it. What they would do if ever they should come to the conviction that the national existence is in peril through incapacity, selfish personal ambitions or treachery on the part of the Administration, it is not necessary to predict. The conjuncture is not likely to arrive. Of one thing, however, you may be sure: the great loyal body of the nation have no quarrel with Congress or with the Administration for any of the measures that are the objects of denunciation by you and your associates, and they hold the men who utter these denunciations to be worse enemies to their country than the rebels in arms—morally far worse than the great mass of the misguided followers of the rebel chiefs.

LETTER III.

SLAVERY.

Dear Sir: A considerable portion of your letter is taken up with a discussion of the rebel Vice-President Stephen's declaration touching slavery.

In his speech at Savannah, Mr. Stephens, speaking of the new Government which the rebels had set up, says: 'Its foundations are laid, its corner stone rests upon the great truth that the negro is not equal to the white man; that slavery, subordination to the superior race, is his natural and moral condition.'

One would think this was clear enough, and that it was doing no injustice to its substantial purport to say that Mr. Stephens here makes slavery the corner stone of his new Government. You say, however, that this is 'an egregious misapprehension,' that 'he has made no such declaration.' 'Let us learn' (you go on) 'what he actually did say. His language is this: 'The foundations of our new Government are laid, its corner stone rests upon'—what? slavery? no—'upon the great truth that the negro is not equal to the white man, that slavery,' which he then defines to be 'subordination to the superior race, is his natural and moral condition.''

This is nice! How admirably your italic emphasis upon the first clause, your intercalated comments, and the slight way of bringing in the second clause, serves to bring out the full, undivided force of the whole sentence! What a charming union of acuteness and moral nobleness it exhibits! Equally admirable for the same qualities is your distinction between basing a government upon slavery and basing it upon a great truth about slavery. Mr. Stephens has said that the corner stone of his new Government rests upon the great truth that slavery is the natural and moral condition of the negro. He has not, therefore, said that it rests on slavery! And so you think yourself justified, do you, in your emphatic assertion that 'he has made no such declaration'? You stand impregnable and triumphant—on the words! You stick to what is 'nominated in the bond'—the very Shylock of criticism!

But not satisfied with this, you strengthen the case by argument: Mr. Stephens did not say so, or mean so, because he would have been very foolish if he had—so must every one be that thinks he did. Mr. Stephens's 'language' (you say) 'could not be applied to slavery; it would be a strange misapplication of terms to call slavery a physical, philosophical, and moral truth.' But irresistible as your logic is, did you really suppose that the 'plain men' who (according to your motto) in troubled times like these 'read pamphlets,' were any of them so stupid as to think that your wonderful distinction amounts to anything? Did you suppose any man of decent intelligence would fail to see that it makes no practical difference—since slavery, as an institution, was to be the inevitable consequence of the great truth about it—and that therefore Mr. Stephens's declaration amounts substantially to saying that slavery was to be the corner stone of his new Government; and so your assertion, that 'he has made no such declaration,' is a paltry verbal quibble, unworthy of a sensible and fair-minded man.

So of your way of proving that the rebel Government have adopted no such corner stone. It is like yourself, and unparalleled but by yourself. First, you allege that even if Mr. Stephens had said so, his individual assertion is no law for the Government; next, that 'there is not one word in the Constitution of the Confederacy that gives color to any such idea as slavery being the corner stone of their Government; on the contrary, section ix, article i, clearly repudiates it.' You did not quote the article you refer to. Your 'plain men,' when they come to see it, will perhaps have an opinion on the question why you did not. The article is as follows: 'The importation of African negroes from any foreign country other than the slaveholding States of the United States, in hereby forbidden, and Congress is required to pass such laws as shall effectually prevent the same.'

Now did you really think that this article 'clearly repudiates' the idea of the rebels intending to have slavery for one of their fundamental institutions, or did you presume on the ignorance or stupidity of those you have undertaken to instruct in political knowledge? The article itself contains no such repudiation, nor is there anything to warrant your inference that such was its purport, and everybody that knows anything about it, knows that it is a gross misrepresentation of its real object to say so.

The rebel Constitution was framed by delegates from the seven Lower Slave States. It was adopted February 8, 1861. Neither Tennessee nor Virginia nor any of the Border States had then joined the rebel Confederacy. Most of these States were opposed to the reopening of the African slave trade from principle and sentiment. The material interests of Virginia were strongly opposed to it. The staple product of Virginia was slaves. She lived only by breeding negroes for the market of the slave-consuming States of the Lower South. To reopen the African slave trade would destroy the profits of her great staple. The price of negroes would go down from one thousand dollars to two hundred. It was well known, however, that there had been for several years a clamor in the Lower States for the repeal of the law of the Union prohibiting the African slave trade, that the determination to have the trade reopened 'in the Union or out of the Union' had been publicly proclaimed in South Carolina, and that the matter of demanding it from the Congress of the Union had been before the Legislature of that State, on the recommendation of the Governor, three or four years before the breaking out of the rebellion.

Under these circumstances the rebel Constitution was framed. And however important to the slave-buying interest of its framers and of the people they assumed to represent, the opening of the African slave trade may have been felt to be, it was felt to be far more important at that crisis to secure the accession of Virginia and the Border States to the rebel cause by prohibiting it. Hence the adoption of the article you refer to without quoting, and of the next very significant article, which you neither quote nor refer to: 'Congress shall also have power to prohibit the importation of slaves from any State not a member of this Confederacy.' The first of these articles, prohibiting the African slave trade, is a guarantee to the interests of the slave breeders if they join the Confederacy; and the second a threat, that if they do not join it, they may have no benefit from the prohibition in the first. Yet knowing all this, or bound to know it, you represent the prohibition of the African slave trade in the rebel Constitution as a 'clear repudiation' of the idea of slavery being intended to be a fundamental institution under their Government! Shame on you! It is a thousand miles away from having any such meaning or purpose; and I confess I am utterly unable to conceive how any man of decent intelligence could in good faith make the representation you do. Suppressio veri, allegatio falsi.

Besides, what object could you have? You vindicate the doctrine, 'the great truth,' by which (according to you, as according to Mr. Stephens) slavery as an institution is justified. You approve of slavery, or, as Mr. Stephens euphistically terms it, the 'subordination of the negro to the superior race.' You know that slavery is a fundamental institution in the rebel scheme. Why then take pains to produce a contrary impression, by resorting to such futile distinctions, such wretched quibbles, and such absurd logic? It seems to me nothing but a mania for verbal distinctions and sophistical special pleas can explain such a gratuitous self-sacrifice.

Or is it, possibly, that you thought you could persuade your 'plain men who read pamphlets,' that in virtue of the sweet euphuism, 'subordination to the superior race,' negro slavery at the South was in some way to be divinely transformed, and, though called slavery, was not in fact to be slavery after the old former fashion? 'Subordination to the superior race'! It certainly merits the praise of Mr. Justice Shallow: 'It is well said, in faith, sir; and it is well said indeed, too; ... and it is good, yea, indeed is it: good phrases are surely, and ever were, very commendable. Very good; a good phrase!'

But you knew it was to be the same sort of subordination that has always prevailed at the South. What is that? It is a subordination that is legally determined as follows: 'Slaves shall be deemed, held, taken, reputed, and adjudged in law to be 'chattels personal in the hands of their owners and possessors, and their executors, administrators, and assigns, to all intents, constructions, and purposes whatever.' (South Carolina Laws, 2 Brevard's Digest, 229.) 'A slave is one who is in the full power of a master to whom he belongs. The master may sell him, dispose of his person, his industry, and his labor. He can do nothing, possess nothing, nor acquire anything but what must belong to his master.' (Louisiana Civil Code, art. 35.) 'The slave is entirely subject to the will of his master.' (Idem, art. 173.)

This is the legal condition of the slave—the same in all the slaveholding States. The laws and decisions resting upon this principle of chattelhood and absolute ownership and dominion are too numerous to cite. They may be summed up in the words of Judge Crenshaw (1 Stewart's Ala. Rep., 320): 'the slave has no civil rights.' It is matter of settled law, that he can make no contract; cannot form a legal marriage; cannot constitute a family—husbands and wives, parents and children, being liable (except in Louisiana) to be sold apart; cannot protect his wife's or daughter's chastity against the master's will; has no right of self-defence, but may be lawfully killed for resisting or striking his master or (in some States) any white man; has no appeal from his master; can bring no action; cannot testify in courts; has no right to education, but teaching him to read and write is penally prohibited.

The laws do not pretend to recognize and protect him as a person, except against murder and excessive cruelty; and these laws are nullified if the master take care to kill or torture him apart from the presence of white witnesses; and even if there be legal witnesses, the murderer or torturer can seldom be brought to punishment. 'A cruel and unreasonable battery' on a slave by the master or hirer is not indictable. This is Judge Ruffin's decision. (2 Devereux's N.C. Rep., 265). This decision is celebrated for the language in which it is announced, and the grounds on which it is rested.

'The power of the master,' says the Judge, 'must be absolute to render the submission, of the slave perfect. I most freely confess my sense of the harshness of this proposition. I feel it as deeply as any man can. And as a principle of moral right, every person in his retirement must repudiate it. But in the actual condition of things it must be so. There is no remedy. This discipline belongs to the state of slavery. They cannot be disunited without abrogating at once the rights of the master, and absolving the slave from his subjection. It constitutes the curse of slavery to both the bond and the free portion of our population. But it is inherent in the relation of master and slave. That there may be particular instances of cruelty and deliberate barbarity where, in conscience, the law might properly interfere, is most probable. The difficulty is to determine where a court may properly begin. Merely in the abstract, it may well be asked which power of the master accords with right. The answer will probably sweep away all of them. But we cannot look at the matter in this light. The truth is we are forbidden to enter on a train of general reasoning on the subject. We cannot allow the right of the master to be brought into discussion in the courts of justice. The slave, to remain a slave, must be made sensible that there is no appeal from his master, that his power is, in no instance, usurped, but is conferred by the laws of man, at least, if not by the laws of God.'

Such is slavery under the slave code. Men are sometimes better and sometimes worse than their laws. We need not wonder that volumes might be filled with recitals of cruelties and atrocities of torture, ending, in many cases, only with the death of the victim. Nor need we wonder at the more loathsome moral abominations so prevalent in Southern society, which degrade the whites even more than the blacks—of children begotten by masters upon the persons of their slave women—begotten in lust and sold for gain; of beautiful quadroons and octoroons sought and bought for the base pleasure of their owners; of families, where the lawful wives and daughters of the master are served by slaves that are their own uncles, brothers, or sisters, born of slave women, yielding to the master's lustful will. Amalgamation is a Southern, not a Northern taste and practice. The most abominable case that has recently come to light, is that of the young slave mother, at New Orleans, of whose children her own father (a rich rebel) was the father! All these things are inevitably incident to a state of slavery, and there is no law against them.

Such is slavery—such is the institution you advocate as divinely ordered, under the soft phrase, 'subordination to the superior race'! And this is the way you speak of those whom you term radical Abolitionists: 'Look at the dark conclave of conspirators, freedom-shriekers, Bible-spurners, fierce, implacable, headstrong, denunciatory, Constitution and Union haters, noisy, factious, breathing forth threatenings and slaughter against all who venture a difference of opinion from them, murderous, passionate advocates of imprisonments and hangings, blood-thirsty,—and if there be any other epithet in the vocabulary of wickedness, do they not every one fitly designate some phase of radical Abolitionism?'

I cannot help fancying that it will occur to some that by substituting slavery-shriekers and Bible-perverters in this sentence, it might at least equally well describe Northern pro-slavery zealots. At any rate, your language is the very extravagance of coarse pro-slavery fanaticism. I have never been of mind with those you term radical Abolitionists; but it seems to me that of the two fanaticisms, the anti-slavery fanaticism is the most respectable in principle, less selfish, and more generous in impulse. I have all my life been disposed to leave the South in undisturbed possession of its constitutional pound of slavery flesh. But when the slaveholders showed an inveterate determination not to be content with that, but to nationalize slavery, to carry it everywhere, and to make it the great element of political control throughout the nation, I felt no constitutional obligation to submit. And when the conspirators, foiled in their designs, rushed into open rebellion, I made up my mind that slavery had best be destroyed—for only when it is, will the conditions of true unity between the South and the North begin to exist—then only will the prosperity and peace of the nation be established on a permanent basis. This is now the opinion of a great many of the best and wisest men at the South. I believe that slavery will be destroyed in the progress and sequel of this war—to the ultimate incalculable advantage of the South.

One word more: You have seen fit to quote Burke and Milton, for the sake of a fling at the clergy who venture to discuss the questions of the day. I do not know how far some of your associates will be disposed to thank you. Perhaps their being on your side gives them a capacity not possessed by the others, and exempts them from the application of your rebuke. I have an impression that the culture and habits of thinking of the members of the clerical profession do not particularly unfit them for taking just and sound views on the questions that agitate the public mind, and that their position—cutting them off from all offices and emoluments that are the objects of ambition to party politicians—gives them some special advantages for doing so. For myself, having all my life been devoted to study and thought on the great principles of social and moral order, I feel myself as well qualified, at least, to offer an opinion, as though I had been devoted to the mechanical application of the principles of physical science.

C. S. HENRY.



BUCKLE, DRAPER, AND THE LAW OF HUMAN DEVELOPMENT.

FIRST PAPER.

So parallel are the lines of thought in Mr. Buckle's 'History of Civilization' and Professor Draper's 'Intellectual Development of Europe,' while they continue within the same limits in discussing the law of individual and social progress; and so exactly does the latter work resume the consideration of this law at the point where the English writer abandoned its further analysis, to commence to apply that which he had made to the history of various nations, that one might almost suppose the two authors had undertaken the task conjointly, and divided the work between them.

It was the purpose of Mr. Buckle, in his introduction, to ascertain the sources of social, and, incidentally, of individual development—the fundamental causes of human progression; and subsequently to verify the principles established, by tracing, in general outlines, the rise and advance of leading nations under their impulse. The basis upon which he started in his examination was this: 'That when we perform an action, we perform it in consequence of some motive or motives; that those motives are the results of some antecedents; and that, therefore, if we were acquainted with the whole of the antecedents, and with all the laws of their movements, we could with unerring certainty predict the whole of their immediate results.'

From this proposition the historian concludes 'that the actions of men, being determined solely by their antecedents, must, under precisely the same circumstances, always issue in precisely the same results. And as all antecedents are either in the mind or out of it, we clearly see that all the variations in the results—in other words, all the changes of which history is full, all the vicissitudes of the human race, their progress or their decay, their happiness or their misery—must be the fruit of a double action; an action of external phenomena upon the mind, and another action of the mind upon the phenomena.'