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DECISIVE 
 BATTLES OF THE LAW 
 
 NARRATIVE STUDIES OF EIGHT LEGAL CONTESTS 
 
 AFFECTING THE HISTORY OF THE UNITED 
 
 STATES BETWEEN THE YEARS 
 
 1800 AND 1886 
 
 BY 
 
 Frederick Trevor Hill 
 
 AUTHOR OF -^ 
 
 " LINCOLN THE LATVYER " " THE ACCOMPLICE " 
 "the case AND exceptions" ETC. 
 
 NEW YORK AND LONDON 
 
 Harper & Brothers Publishers 
 
 MCMVII 
 
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 Copyright, iga6, 1907, by Harpbr & Brothers. 
 
 j4U rights reserved. 
 
 Published October, 1907.- 
 
TO 
 CAROLINE COE 
 
CONTENTS 
 
 PAGE 
 
 THE VNITED STATES VS. CALLENDER: A FIGHT FOR FREE- 
 DOM OP THE PRESS I 
 
 THE UNITED STATES VS. BURR: THE INSIDE HISTORY OP A 
 
 "scotch" VERDICT 2J 
 
 THE COMMONWEALTH VS. BROWN! THE PRELUDE TO THE 
 
 CIVIL WAR 65 
 
 DRED SCOTT VS. SANFORD: THE UNCOVERING OP AN HIS- 
 TORIC TRIAL 107 
 
 THE IMPEACHMENT OF ANDREW JOHNSON: A HISTORIC 
 
 MOOT CASE 135 
 
 THE "ALABAMA" ARBITRATION: AN INTERNATIONAL LAW- 
 SUIT 17s 
 
 THE HAYES-TILDEN CONTEST: A POLITICAL ARBITRATION 212 
 
 PEOPLE VS. SPIES et al.: the Chicago anarchists' case 240 
 
FOREWORD AND ACKNOWLEDGMENT 
 
 IT is a recognized fact that great legal con- 
 ^ tests have not infrequently foreshadowed 
 national crises in the United States, and some- 
 times even determined them. Certainly the 
 records of the courts afford most illuminating 
 foot-notes to history, often revealing the politi- 
 cal and human forces at work upon events in 
 more dramatic and vivid guise than any other 
 medium. Something of their significance is 
 lost, however, in the dull, official form of a law 
 report. No such account of a trial can convey 
 any suggestion of the surroundings or attendant 
 circumstances that give life, character, color, 
 and meaning to the proceedings. To be appre- 
 ciated at its full historic value, the scene must 
 be vitalized and peopled with the human beings 
 that dominated it. The judge, the jury, the 
 witnesses, the lawyers, the laymen— all the court- 
 room crowd must be seen in action, moulding the 
 event, and the listening spectator must be so 
 
 vii 
 
FOREWORD AND ACKNOWLEDGMENT 
 
 in touch with the history and spirit of the times 
 as to understand every move of the dramatis 
 personcB. 
 
 It is to approximate this effect that these 
 narrative studies have been undertaken. 
 
 The writer gratefully acknowledges his in- 
 debtedness to all the historians and biographers 
 whose researches have aided him in accurately 
 reproducing the scenes herein depicted. 
 
 For valuable information concerning the trial 
 of John Brown, he begs to thank Messrs. Thomas 
 H. Botts and Thomas C. Green (sons of the coun- 
 sel who conducted the defence), as well as Dr. 
 W. P. McGuire, executor of Judge Parker, who 
 presided at the trial, and Mr. Frank B. Sanborn, 
 Brown's intimate friend and biographer. 
 
 He is likewise greatly indebted to Messrs. 
 Brooks Adams, Frank W. Hackett, and the 
 Honorable J. C. Bancroft Davis, the only sur- 
 viving representatives of the United States at 
 the Geneva arbitration, for information con- 
 cerning the Alabama case; and to the Honor- 
 able Elihu Root and the officials of the State 
 Department for access to the official records in 
 Washington, concerning the same. 
 
 To Captain William P. Black and Messrs. Sig- 
 viii 
 
FOREWORD AND ACKNOWLEDGMENT 
 
 mund Zeisler and William A. Foster, of counsel 
 for the Chicago anarchists, and Francis W. 
 Walker, the last siirviving member of the prose- 
 cutor's staff, he desires to express his thanks for 
 material assistance in presenting the court-room 
 scene in the People vs. Spies. 
 
 He also takes pleasure in recording his appre- 
 ciation of the efficient assistance of the late Miss 
 Mary Loviise Dalton, Librarian of the Missouri 
 Historical Society, in facilitating the original 
 investigations which form the basis of the arti- 
 cle on the Dred Scott case, and the co-operation 
 of Montgomery Blair, Esq., who courteously 
 loaned to the writer tmpublished autograph let- 
 ters bearing upon his father's share in that 
 famous Htigation. 
 
 For this generous, expert assistance in pre- 
 paring the voltime for the press, the writer is, 
 on this as on many other occasions, deeply 
 indebted to Mr. Samuel Palmer Griffin. 
 
DECISIVE 
 BATTLES OF THE LAW 
 
DECISIVE 
 BATTLES OF THE LAW 
 
 THE UNITED STATES VS. CALLENDER: 
 A FIGHT FOR FREEDOM OF THE PRESS 
 
 EARLY in the morning of June 3, 1800, a 
 ntunber of horsemen could be seen strag- 
 gling along the rough country roads towards 
 Richmond, each encircled in a little cloud of 
 dust. Here and there the riders joined forces, 
 jogging together past the scattered plantations 
 on to the outskirts of the town, and then thread- 
 ing their way more carefully through the narrow, 
 ill-made streets of the capital, tintil they reached 
 the Common, whose deep ravines, covered with 
 stunted pines, necessitated a still more cautious 
 approach. 
 All the travellers were evidently bent upon 
 
DECISIVE BATTLES OF THE LAW 
 
 the same errand, for they halted at a btiilding 
 before which a dozen or more men were already- 
 assembled, and, having dismounted and tied 
 their horses to the hitching-rails, mingled with 
 the earlier arrivals. It was a picturesque gath- 
 ering of Virginians that awaited the opening of 
 the United States Circuit Court on that summer 
 morning, for the ugly fashions of the French 
 Revolution had not as yet found much favor 
 in the Old Dominion, and knee-breeches, low 
 shoes, buckles, buttons, and queues tied with 
 ribbons were still in vogue. And yet it was not 
 their dress, but their faces and bearing, which 
 particularly distinguished these gentlemen as 
 they stood talking with one another under the 
 wide-spreading trees at the edge of the public 
 square. Many of them were clothed like Eng- 
 lish farmers, but they wore their dusty garments 
 with an unmistakable air of distinction, and 
 their clean-shaven, clear-cut features bespoke 
 dignity and intelligence. The centre of one 
 group was especially notable, his strong and 
 somewhat stem face indicating character in 
 every line, and the ease with which he held his 
 auditors singled him out as a master of men. 
 This was John Marshall, diplomat and jurist, 
 and soon to become the official chief of the hated 
 
THE UNITED STATES vs. CALLENDER 
 
 judge whose official programme was summoning 
 all the country-side. In another group near 
 Marshall stood a handsome, neatly dressed man 
 about thirty years of age, tall, well-formed, and 
 graceful, with a hearty laugh and a confident 
 manner that seemed to fascinate those about 
 him, particularly one keen, boyish-looking lis- 
 tener who hung upon his every word, for William 
 Wirt was already the beau-ideal of the junior 
 bar, and Philip Nicholas had reason to felicitate 
 himself on being associated with such a rising 
 young advocate. In this same group stood 
 George Hay, soon to become one of the best- 
 known lawyers in the cotmtry, and beside him 
 stood the distinguished leader of the Virginia 
 bar, Edmund Randolph. 
 
 All these men were to meet again at the same 
 place tmder very different conditions to conduct 
 one of the most famous trials in American his- 
 tory, but for the time being all professional and 
 political differences were merged in their loyalty 
 to the Virginia bar, whose dignity and influence 
 bade fair to be seriously affected in the trial of 
 James Thompson Callender for seditious libel 
 against the President of the United States. 
 There was no wide-spread popular sympathy 
 with this editor of the Richmond Examiner, and 
 
DECISIVE BATTLES OF THE LAW 
 
 no particular interest among the best citizens 
 concerning his individual fate. He was a brill- 
 iant, drtinken, fearless, mercenary product of 
 Grub Street, whose scurrilous pen was at the 
 service of the highest bidder and whose libels 
 were produced to order. In such a hireling 
 neither patron nor opponent cotild manifest any- 
 very deep concern. He received his price and 
 took his chances, and imder ordinary circum- 
 stances no one would probably have raised a 
 finger in his behalf. The circtimstances, how- 
 ever, were not ordinary, but most extraordinary, 
 for the law invoked against Callender for the 
 publication of his libelous pamphlet, " The Pros- 
 pect Before Us," was the odious Sedition Act, 
 the passage of which (together with the Alien 
 Law) had aroused such deep resentment through- 
 out the country that Kentucky had protested 
 in a set of defiant resolutions, declaring it ntill 
 and void within her borders and inviting the 
 other States to join her in seceding from the 
 Union. This invitation had met with a decided 
 rebuff from all the legislatiires addressed save 
 that of Virginia, which had responded with 
 another set of resolutions expressing devoted 
 attachment to the Union, but heartily joining 
 in Kentucky's condemnation of the law as a 
 
THE UNITED STATES vs. CALLENDER 
 
 dangerous menace to the freedom of the press 
 and an outrageous breach of the Hberties guar- 
 anteed by the Constitution. 
 
 Under the provisions of this law, any one who 
 wrote, printed, uttered, or published any false, 
 scandalous, or malicious matter against the 
 government, the Congress, or the President of 
 the United States, or which tended to bring 
 them into hatred or contempt, could be punished 
 by heavy fines and imprisonment, and the stat- 
 ute was so worded as to penalize, not only honest 
 criticism of the Executive, but even the free 
 expression of opinion. No legislation more fa- 
 tal to the popularity of Adams's administra- 
 tion could possibly have been devised; but al- 
 though the sole responsibility for its enactment 
 has frequently been charged to the President, 
 it cannot justly be laid at his door. His fussy, 
 sensitive, conscientious, crotchety, tactless nat- 
 ure had doubtless been more stung by the 
 lampoons and critical attacks of the pam- 
 phlets and newspapers than that of any other 
 official, but the abuse of the press had been 
 so general that scarcely a man in public life 
 had escaped defamation, and the Act had 
 been rushed through both houses of Con- 
 gress by a vote which distinctly stamped it 
 
 S 
 
DECISIVE BATTLES OF THE LAW 
 
 with the approval of the whole administration 
 party. 
 
 That this was the first law passed by the 
 national legislature against the freedom of the 
 press, and that its enforcement in Virginia 
 threatened to provoke a conflict between the 
 state and the Federal authorities, possibly in- 
 volving the stability of the Union, was quite 
 sufficient to arouse unprecedented interest in 
 Callender's case, for these facts indicated a cause 
 of vital importance, which bade fair to result in 
 the first State trial upon record in the Common- 
 wealth. Nevertheless, it was not these momen- 
 tous issues that attracted the majority of the 
 legal profession, but rather the personality of 
 the judge who proposed to try the case, for 
 His Honor was probably the most violent, the 
 most feared and best-hated partisan who ever 
 sat upon the Federal bench. 
 
 It was not in his judicial capacity alone that 
 Samuel Chase had earned his reputation. For 
 years he had been known as a pugnacious lawyer 
 and politician who sought quarrels and delighted 
 in them. Indeed, his entire career had been 
 marked by such intemperance of word and ac- 
 tion that he seemed " to move perpetually with 
 a mob at his heels," which sometimes pursued 
 
 6 
 
THE UNITED STATES vs. CALLENDER 
 
 but qtiite as often followed him. In the stirring 
 days preceding the Revolution he had been one 
 of the " Sons of Liberty " who had attacked the 
 public offices of Baltimore during the Stamp 
 Act, and later he and his band had actually 
 compelled a group of old malcontents, includ- 
 ing his own father, to take the oath of allegiance 
 to the Continental Congress. Nor were these 
 the only manifestations of such playfulness 
 credited to his account, for when certain Penn- 
 sylvanian Quakers had refused to illuminate 
 their houses in honor of a Revolutionary suc- 
 cess, he had swooped upon the offending citi- 
 zens with his followers, bundled them into carts, 
 and deported them in the depth of winter to 
 Virginia, where they were unceremoniously de- 
 posited and left to shift for themselves. 
 
 All this youthful boisterousness, however, 
 wotild probably have been attributed to exu- 
 berant vitality and misdirected zeal had not his 
 conduct as a member of the Maryland Colonial 
 Legislature and the Continental Congress been 
 almost equally turbulent and provocative of riot. 
 The man was, however, an incorrigible bully, with 
 a genius for offence, and when at the close of the 
 war he found himself a member of the Mary- 
 land House of Delegates, he straightway became 
 
 7 
 
DECISIVE BATTLES OF THE LAW 
 
 involved in political broils which restdted in an 
 attempt at his impeachment. But here his 
 fighting qualities stood him in good stead, for 
 he not only fought his enemies to a stand-still, 
 but had himself rewarded, first with the Chief- 
 Justiceship of the Criminal Court of Baltimore, 
 and then with the Chief -Justiceship of the Gen- 
 eral Court, both of which offices he tenaciously 
 held and administered in flagrant defiance of 
 the law, until his action was officially declared 
 unconstitutional. Nevertheless, his name was 
 writ large in the Declaration of Independence, 
 his personal honesty, courage, and patriotism 
 were unquestioned, and though he had at first op- 
 posed the Constitution, he had become in course 
 of time the most ardent of Federal enthusiasts. 
 
 Such was the man whom Washington had 
 appointed to the Federal bench in 1796, and 
 there was to be nothing in his conduct of that 
 office to belie his previous record. Domineer- 
 ing, fearless, vain, confident, and honest, he had 
 many of the qualities necessary to establish the 
 authority of the new court, but no one did more 
 than he to make his tribunal obnoxious to the 
 bar. With a good classical education and con- 
 siderable experience and ability as a lawyer, he 
 had the majority of the attorneys who practised 
 
 8 
 
THE UNITED STATES vs. CALLENDER 
 
 before him at a distinct disadvantage, and those 
 whom he could not tmhorse with legal learning 
 he cowed and silenced with jocular or brutal 
 tyranny, as best suited his humor. But per- 
 haps his gravest offence was his political activity, 
 with which he never allowed his judicial duties 
 to interfere, and he had not been long upon the 
 circuit before angry outcries were raised against 
 his aggressive Federal partisanship. Opposi- 
 tion of this character, however, merely excited 
 his belligerency, and he never made the slightest 
 effort to conceal his political opinions, either on 
 or off the bench. Indeed, when the Sedition 
 Act became a law, he had openly rejoiced at the 
 opportunity it afforded for silencing critics of 
 the administration, and his actions were soon to 
 speak louder than words. During the trial of 
 Fries, his arbitrary rulings practically forced 
 the prisoner's counsel to retire from the case in 
 disgust, and when Thomas Cooper, member of 
 the Pennsylvania bar, convicted of libeling the 
 President, was arraigned for sentence, he an- 
 nounced in open court that if he could discover 
 that the Democratic party was behind the pris- 
 oner he would inflict the severest penalties 
 known to the law. 
 
 It is not surprising, therefore, that the most 
 
 9 
 
DECISIVE BATTLES OF THE LAW 
 
 alarming rumors of this judicial tyrant's pro- 
 gramme for Virginia found willing'ears in Rich- 
 mond when he descended upon the town with 
 Luther Martin's marked copy of " The Prospect 
 Before Us " in his avenging hand. That he had 
 publicly exhibited this libelous pamphlet to va- 
 rious persons and expressed his determination 
 to punish its author was a matter of common 
 knowledge, but the story that he had instructed 
 the marshal to see that " none of those creatures 
 called Democrats " was summoned on the grand 
 jury found quite as many believers. Moreover, 
 rumor had it that on being informed that the 
 leaders of the Richmond bar had volunteered to 
 appear for Callender and test the constitution- 
 ality of the law, he had retorted, with a coarse 
 laugh, that he'd put the whole lot of them over 
 his knee and teach them and all such nullifiers 
 a lesson they would not soon forget, and it must 
 be confessed that the thought of the learned 
 profession in this undignified posture appealed 
 to the popular humor and lent an added signifi- 
 cance to "The Prospect Before Us." 
 
 The threatened clash between the bench and 
 bar was, of course, particularly interesting to 
 lawyers, but there were many laymen among 
 those gathered before the court-house on the 
 
 lO 
 
THE UNITED STATES vs. CALLENDER 
 
 morning of the trial, for the country was thor- 
 oughly aroused over the attempt to enforce the 
 Sedition Law within a State whose legislature 
 had officially condemned it, and the conflict 
 between the Federal and State authorities was 
 far more important to the average Virginian 
 than the settlement of any professional differ- 
 ences. Not all the horsemen who came trailing 
 across the Common were present from choice, 
 however, for the marshal had invaded the most 
 distant plantations in his search for jurors, and 
 some of the victims had ridden ten, fifteen, and 
 even twenty miles in obedience to his summons, 
 spreading the news of the impending event 
 through the outlying districts until the rapidly 
 gathering crowd promised to surpass that of 
 any previous court day in Richmond. Never- 
 theless, no one of the waiting throng seemed to 
 be in any haste to move in-doors, and jurors, 
 witnesses, spectators, and lawyers remained 
 clustered about the entrance or scattered along 
 the edge of the Common, discussing the case 
 until nearly ten o'clock, when they slowly moved 
 towards the scene of action, and a few minutes 
 later filled the court-room to overflowing. 
 
 At a table beside the judicial desk sat William 
 Marshall, clerk of the court and brother of the 
 
DECISIVE BATTLES OF THE LAW 
 
 future Chief -Justice, and near him stood Mr. Nel- 
 son, the District Attorney, with David Robert- 
 son, the short-hand reporter, whose notes were 
 to prove an invaluable exhibit in the subsequent 
 impeachment of the judge. The attention of 
 the audience, however, was mainly directed to 
 the prisoner, his bondsman, Meriwether Jones, 
 and his counsel, Messrs. Hay, Wirt, and Nich- 
 olas, a formidable array for any hostile judge, 
 and a trio with whom the bar of Richmond were 
 well content to trust their dignity and honor. 
 Indeed, these champions had already given 
 Chase a taste of their quality by virtually forcing 
 him to grant adjournments on two previous 
 occasions, and it was whispered that they intend- 
 ed to manoeuvre him out of the case altogether 
 by contintiing their dilatory tactics tmtil the 
 term expired. In fact, the word passed from 
 lip to lip across the crowded chamber that the 
 judge had walked into a very neat trap at the 
 last hearing by granting an adjournment to 
 procure the attendance of a certain witness 
 named Giles. This, it was claimed, was a fatal 
 concession, for if the non-appearance of this 
 witness justified a postponement on Monday, 
 it equally demanded it on Tuesday, for he was 
 still missing, and the case could not therefore 
 
THE UNITED STATES vs. CALLENDER 
 
 be tried until he was produced, which would be 
 the day after never. 
 
 The audience chuckled approvingly as this 
 story went the roiinds, gleefully anticipating the 
 discomfiture of the judge, and the general opin- 
 ion was that, for once, at least. Chase had met his 
 match— a result particularly agreeable to local 
 pride. Judicial tyrants might bully and awe the 
 Pennsylvania or Maryland bar, but the profession 
 in Virginia knew a trick of two which wotild— 
 
 The chatter and laughter suddenly ceased as 
 the door opened, disclosing the not too heroic 
 figure of the District Judge, Cyrus Griffin, a 
 rather futile, colorless, and timid personage, 
 who appeared to be propelled into the room by a 
 burly, bustling, red-faced man who strode rapid- 
 ly to the bench, nodding an ungracious saluta- 
 tion at the assemblage, while the court crier 
 bellowed his familiar announcement. 
 
 The individual whose arrival had had the 
 effect of a school-master entering a noisy class- 
 room was a man of about sixty years of age, 
 huge of biilk, coarse of feature, masterful in 
 manner. On his massive head sat an ill-made 
 wig, and his garments were those of the ordinary 
 citizen with no particular regard for appear- 
 ances, but there was no mistaking his authorita- 
 
 13 
 
DECISIVE BATTLES OF THE LAW 
 
 tive bearing as he loomed up behind the judicial 
 desk and glowered at the silent audience. To 
 most of those who returned his scrutiny he was 
 an entire stranger, for until the present term of 
 the court he had never set foot in Richmond, 
 and doubtless many of the spectators were pre- 
 pared to find him a fiend in human shape. But 
 though his expression was somewhat forbidding, 
 his large, strong, clean-shaven face was not un- 
 comely, and his giant frame suggested strength 
 rather than brutality. Nevertheless, his small, 
 snappy, shifty eyes had a dangerous glint, and 
 there were ominous lines about the comers of 
 his mouth, betraying possibilities of an ugly 
 droop, and other indications of a quarrelsome 
 disposition were not wanting. The whole as- 
 pect of the man, however, suggested energy and 
 determination, rather than intellectual power, 
 and, contrasted with the group of lawyers who 
 faced him, he appeared at a disadvantage. But 
 the moment the proceedings opened this im- 
 pression faded, and as he leaned over the 
 desk and listened to Mr. Hay's long and not 
 too ingenious plea for an adjournment, his 
 gaze was so uncomfortably intelligent that the 
 speaker, obviously embarrassed, made poor 
 work of his argument. Still, no interruption 
 
 14 
 
THE UNITED STATES vs. CALLENDER 
 
 reached him from the bench, and, growing more 
 confident, the advocate began to shift away 
 from the question of the missing witness, 
 craftily turning the discussion towards the 
 constitutionaHty of the Sedition Act. Then 
 he circled back to the witness whose testimony 
 he boldly asserted would help to determine 
 whether Callender's pamphlet consisted of li- 
 belous statements or merely matters of opinion, 
 which question he declared would have to be 
 considered by the jury in assessing the fine. 
 
 "That's a wild notion! It's not the law. 
 The jiiry have nothing to do with assessing the 
 fine, sir!" 
 
 If some one had suddenly dashed water in 
 Hay's face he could scarcely have been more 
 astonished. To be flatl)'^ contradicted on a 
 legal question was ruffling enough to a man of 
 his dignity, but to have his opinion derided as 
 a wild notion was too insulting for words, and 
 some moments elapsed before he recovered him- 
 self sufficiently to retort. Then he announced 
 with dignified severity that it was possible to 
 answer argument, but quite impossible to refute 
 authority. If he were permitted to proceed, 
 however — 
 
 But he was not permitted to proceed. A blow 
 
 15 
 
DECISIVE BATTLES OF THE LAW 
 
 had been given and returned, and the battle was 
 now for the strong. His Honor did not propose 
 to listen to any arguments regarding the consti- 
 tutionality of the law, and if the counsel imagined 
 that the court was bound to keep on granting 
 adjournments until the missing witness, Giles, 
 was produced, he was mightily mistaken. In 
 the court's opinion, if the trial had to await that 
 gentleman's appearance, it would never take 
 place at all. There had been ample opportunity 
 to compel his attendance. Let the jury be im- 
 panelled at once! 
 
 Startled and chagrined as the counsel were 
 by this unexpected turn of affairs, which com- 
 pletely upset their well-laid plans, they were 
 still more disconcerted by the overbearing man- 
 ner and tone which had been adopted towards 
 them, and, tingling with resentment, they an- 
 nounced that since His Honor saw fit to force 
 an immediate trial upon them, it would be their 
 duty to take advantage of every technicality 
 known to the law, which, to a man of Chase's 
 temperament, was nothing more or less than an 
 open declaration of war. Indeed, the very next 
 move demonstrated the tactlessness of such a 
 defiance, for the moment young Nicholas ad- 
 vanced a formidable challenge to the entire 
 
 i6 
 
THE UNITED STATES vs. CALLENDER 
 
 panel of jurors, which, despite the extraordinary- 
 exertions of the marshal, comprised only eight 
 candidates, he was flouted and routed with a 
 finality that not only overruled his objections, 
 but cast serious aspersions on his legal attain- 
 ments. Seeing the junior counsel thus hurried 
 and dragged over his own obstacles, Mr. Hay 
 promptly came to the rescue by proposing to 
 examine the jurors individually as to any prej- 
 udices they might entertain against the ac- 
 cused; but before he could frame his opening 
 question he was roughly interrupted from the 
 bench. No questions could be asked of the 
 jurors, he was informed, save such as were first 
 reduced to writing and submitted for the ap- 
 proval of the court. 
 
 For a moment the three lawyers stared at the 
 bench in speechless amazement, and then burst 
 into angry protest. It was absolutely futile, 
 however, to attempt to swerve Chase from this 
 extraordinary course, and when the exhausted 
 attorneys finally yielded and submitted written 
 questions for the jurors, their interrogatories 
 were declared improper and rejected forthwith. 
 According to the court, it did not make any dif- 
 ference if a talesman had read and formed an 
 unfavorable opinion of "The Prospect Before 
 
 17 
 
DECISIVE BATTLES OF THE LAW 
 
 Us." He was still eligible for the jury provided 
 he had not formed an opinion concerning the 
 charge on which the prisoner was indicted, and 
 as none of the candidates had read the indict- 
 ment, they were all qualified to serve on the 
 case. In the face of these unheard-of rulings, 
 the Virginian lawyers apparently abandoned all 
 hope of securing an impartial jury, for when one 
 of the talesmen, a conscientious planter by the 
 name of Basset, volunteered the information 
 that he had read Callender's tract and had 
 formed a positive opinion that it came under 
 the Sedition Law, they failed to record any ob- 
 jection to his retention. 
 
 Having herded the jurors into the box in this 
 peremptory fashion. Chase was now ready to 
 try the case, and directing the District Attorney 
 to proceed, he calmly settled back while that 
 official described the enormity of the prisoner's 
 crime to the eight men intrusted with his fate. 
 Only certain portions of the offending pamphlet 
 had been recited in the indictment, and they 
 made rather mild reading, even at that time, 
 while in these days they would scarcely be re- 
 garded as sensational, to say nothing of criminal. 
 Nevertheless, they were clearly within the pro- 
 visions of the Sedition Law, and proof of their 
 
 i8 
 
THE UNITED STATES vs. CALLENDER 
 
 authorship was practically all the prosecutor 
 needed to complete his case. This was easily 
 established by the testimony of the printers 
 who had put the manuscript into type and the 
 booksellers who had sold it as a pamphlet, and 
 when Hay protested that those men could not 
 be compelled to answer the questions put to 
 them, they being accomplices equally guilty 
 under the law, and privileged from testifying 
 against themselves, the court not only over- 
 ruled his objections, but virtually promised the 
 hesitating witnesses iinmunity as a reward for 
 their confessions. Indeed, it was said that 
 Chase frequently identified himself with the 
 prosecution in this and other ways, even using 
 the word "we" to indicate a common purpose 
 between the District Attorney and himself. 
 
 Having succeeded in proving that the prisoner 
 was the author of "The Prospect Before Us," 
 the prosecutor next attempted to introduce the 
 whole pamphlet in evidence, but here the de- 
 fence again protested, claiming that only those 
 portions of the document which were recited in 
 the indictment could be considered by the jury, 
 especially in view of the court's decision that 
 the jurors were concerned only with the offence 
 charged in the official papers and were not dis- 
 
 3 19 
 
DECISIVE BATTLES OF THE LAW 
 
 qualified by their prejudices against the pam- 
 phlet as a whole. Chase was in no mood, how- 
 ever, to allow his previous rulings to be turned 
 against him. The prisoner was being tried for 
 writing "The Prospect Before Us," and he was 
 not to escape punishment because only mild 
 selections from it appeared in the indictment. 
 A little informality of that sort was best recti- 
 fied by allowing the jury to read the whole 
 pernicious production. In vain Hay protested 
 against this illogical and injurious action. He 
 was interrupted and contradicted, hurried, har- 
 ried, and baited until the whole room roared 
 with laughter, for nothing is so infectious as 
 the wit of the bench on which a bully sits 
 enthroned. 
 
 The prosecution practically ended with this 
 exhibition of judicial tyranny, and the defence 
 was immediately instructed to proceed. Un- 
 prepared as they were to dispute the authorship 
 or publication of the pamphlet, the cotmsel still 
 had a chance of influencing the jury by proving 
 the truth of its statements, and to that end they 
 called a well-known citizen named Colonel Tay- 
 lor, to the stand. Before he cotild utter a word, 
 however, the judge interrupted, declaring that 
 every question put to him must be first examined 
 
 20 
 
THE UNITED STATES vs. CALLENDER 
 
 and approved by the court. This preposterous 
 order fairly staggered the indignant counsel. 
 They had submitted when forced to conduct the 
 examination of the jury in this fashion, but 
 to be similarly hampered in questioning their 
 own witness was an imposition unheard of in 
 any court of law, and they remonstrated in no 
 uncertain terms. 
 
 Neither protest nor argument nor authority, 
 however, had the slightest effect upon the judge, 
 and after a fierce controversy the attorneys 
 abandoned their struggle, only to discover that 
 Chase would admit no testimony that did not 
 prove the truth of the whole paragraph com- 
 plained of in the indictment. Struggling to 
 conceal their exasperation, they protested that 
 one witness might prove the correctness of one 
 statement in the pamphlet, and another another, 
 and that no one individual could be expected to 
 substantiate the whole of it, and at last Chase 
 was compelled to go through the empty form 
 of consulting the District Judge. That shadowy 
 official, however, meekly concurred in the views 
 of his superior, and, finding himself supported, 
 His Honor attempted to put an end to the dis- 
 cussion. But the fighting blood of the Virginian 
 attorneys was now thoroughly aroused, and, re- 
 
DECISIVE BATTLES OF THE LAW 
 
 fusing to be silenced, they pressed their con- 
 tentions with a force that lashed Chase into a 
 rage, and the bitter wrangle which ensued soon 
 had the room in an uproar. Contemptuously- 
 referred to as " you young gentlemen," and goad- 
 ed by every public slight and sneer which brutal 
 authority could inflict upon them, the three law- 
 yers, nevertheless, stood their ground, insisting 
 that the rulings of the court were equivalent to a 
 complete denial of justice, and virtually defying 
 the bench. Finally the judge made a pretence 
 of requesting the District Attorney to allow the 
 questions upon which "the young gentlemen 
 were so insistent," and when he prudently de- 
 clined the magistrate brought the matter to a 
 close by hammering his opponents to their seats. 
 With this final suppression of their only avail- 
 able testimony, the defence had no recourse but 
 to address the jury and endeavor to take ad- 
 vantage of the existing prejudice against the 
 Sedition Law. Wirt led this forlorn hope, but 
 the moment he began to argue against the con- 
 stitutionality of the law he was unceremoniously 
 halted and informed that the jury would not be 
 permitted to consider any question of that kind. 
 The jitrors were the judges of the facts, and not 
 of the law, declared the court — a proposition 
 
 22 
 
THE UNITED STATES vs. CALLENDER 
 
 which, tinder ordinary circumstances, no lawyer 
 would have endeavored to dispute. Wirt, how- 
 ever, intimated that the court had suppressed 
 the facts, and that he was therefore reduced to 
 the necessity of discussing the law. Interrupted 
 and told not to reflect on the court, he retorted 
 with a repetition of his statement in another 
 form, and for a perilous moment the two men 
 faced each other, speechless with rage, while the 
 frightened audience watched them in fascinated 
 silence. 
 
 Then the intrepid Virginian again turned slowly 
 to the jury and resumed his argument, attacking 
 the law with studious disregard of the official 
 mandate. With a roar of anger Chase ordered 
 him to his seat, and as he quietly obeyed, the 
 man on the bench launched into a frenzied tirade. 
 
 "Hear my words!" he ranted. "I wish the 
 world to know them! My opinion is the result 
 of mature deliberation!" 
 
 He then reiterated with increasing violence 
 that the facts were for the jury and the law for 
 the court, an elemental principle of which the 
 world had been previously informed and of 
 which no one was better advised than the expe- 
 rienced law}'^ers he was instructing. The tables 
 were now turned, however, and it was the judge 
 
 23 
 
DECISIVE BATTLES OF THE LAW 
 
 and not the counsel who was being baited. 
 Indeed, Chase had no sooner concluded his pom- 
 pous proclamation than Wirt once more turned 
 to the jury, and, quoting directly from the third 
 section of the Sedition Act, which provided that 
 the jury " should determine the law and the fact 
 under the direction of the court, as in other 
 cases," calmly proceeded to discuss the forbidden 
 subject. The Q)nstitution was the law, he de- 
 clared, and as the jury had a right to determine 
 the law, they had logically the right to consider 
 the Constitution. 
 
 " A non sequitur, sir!" shouted Chase, and the 
 audience roared; whereupon Wirt sat down in 
 disgust and Nicholas took up the same line of 
 argument until he was virtually smothered by 
 interruptions from the bench. Then Hay re- 
 sumed the attack, but by this time the judge 
 had worked himself into a fury, and the senior 
 coimsel, flatly contradicted, badgered, and in- 
 sulted almost every time he opened his lips, 
 suddenly brought the imseemly contest to a 
 close by taking his seat and gathering up his 
 papers. 
 
 For a few moments the angry magistrate did 
 not apparently comprehend what was happen- 
 ing, but as Hay's associates followed his example 
 
 24 
 
THE UNITED STATES vs. CALLENDER 
 
 and began packing up their books and docu- 
 ments, the situation slowly dawned upon him 
 and for the first time he seemed to realize that 
 he had perhaps carried matters beyond the point 
 of safety. The retirement of the lawyers in the 
 Fries case had not troubled him in the least, 
 but the repetition 6i that rebuke at the hands of 
 the Virginia bar might, he well imderstood, be 
 fraught with much more serious consequences; 
 and when Hay rose and turned towards the door, 
 he addressed him with surprising deference. 
 
 "Please to proceed, sir," he requested, "and 
 be assured that you will not again be interrupted 
 by me. Say what you will." 
 
 The senior cotmsel, however, vouchsafed no 
 response to these advances, and, amid intense 
 silence, he and his associates walked gravely to 
 the rear of the room. 
 
 There was something unmistakably ominous 
 in their quiet dignity and bearing, and the 
 judicial tyrant was now thoroughly alarmed. 
 
 "I think it right to interrupt counsel when 
 mistaken in the law," he protested. " Yet I do 
 not mean to interrupt improperly. There is no 
 reason to be captious." 
 
 Receiving no reply to this apologetic utter- 
 ance, the speaker's red face assumed a purple 
 
 25 
 
DECISIVE BATTLES OF THE LAW 
 
 hue, and his vindictive little eyes, following the 
 retreating figures, glittered with rage. Finally, 
 as the door opened, he half rose from his chair, 
 and roaring, "As you please, sirs!" turned to the 
 jury and began a long and careful charge. 
 
 Two hours later a verdict of guilty was re- 
 corded, and the prisoner sentenced to nine 
 months' imprisonment and a fine of two hundred 
 dollars, and required to find sureties for good 
 behavior for a period of two years. 
 
 Thus closed the last case ever tried under the Se- 
 dition Law, but it was fated to be heard of again. 
 From his cell in the Richmond jail the prisoner 
 continued to issue his libels until Jefiferson par- 
 doned him, only to be rewarded by venomous 
 attacks from his pen, after the hated act had 
 been repealed; and five years later Chase was 
 impeached before the Senate for oppressive and 
 vexatious conduct during the trial, and inde- 
 cent solicitude for the conviction of the accused. 
 PoUtics and Luther Martin, however, interfered 
 in his behalf, and after a brilliant defence at the 
 hands of the lawyer for whose support in his 
 last illness the Maryland legislature taxed all 
 members of the bar, he was acquitted, and re- 
 sumed his duties without ever again repeating 
 the offences for which he had been arraigned. 
 
 26 
 
II 
 
 THE UNITED STATES VS. BURR: 
 THE INSIDE HISTORY OP A "SCOTCH" VERDICT 
 
 pOR fifty years after his downfall Aaron 
 A Burr was practically without defenders, 
 but during the last half-century a small army 
 of champions has espoused his cause, and of 
 late his adherents have been so aggressively 
 zealous that more heads than lances have been 
 broken in his defence. His partisans are no 
 longer satisfied with rescuing their hero from 
 the national pillory, but insist upon providing 
 a victim in his place and stead. Some of them 
 have nominated General Wilkinson for the 
 vacancy, arraigning him as a villain of the 
 most despicable stripe; others have attacked 
 Jefferson as a persecutor of incredible malig- 
 nity, and all of them have been carried far 
 afield, to the confusion of the issues and the 
 injury of their cause. 
 
 But despite the extravagant claims and 
 
 27 
 
DECISIVE BATTLES OF THE LAW 
 
 covinter-claims by which the enthusiasts have 
 prejudiced their campaign, a vast amount of 
 important information has been laid before the 
 pubHc, and in the hght of this newly discovered 
 evidence Burr is clearly entitled to a complete 
 rehearing of the trial which is generally sup- 
 posed to have demonstrated his traitorous guilt. 
 
 The history of this cause celebre is embodied 
 in two musty legal tomes of more than eleven 
 htmdred wretchedly printed pages. But be- 
 neath their dry and technical exterior there lies 
 a dramatic story replete with human interest 
 and historical significance, and it is fortxinate 
 for Btirr that this vininviting record is so ex- 
 haustive in its scope. No other cause in the 
 early history of American courts is reported 
 with equal care ; but extraordinary efforts were 
 made to secure this result, for Jefferson and his 
 advisers, realizing that the prosecution of an ex- 
 vice-president might easily become a dangerous 
 political issue, determined to put themselves 
 squarely upon record with a faithful transcript 
 of all the proceedings, and it is safe to assume 
 that they took every other precaution to 
 strengthen the government's case and' secure 
 the defendant's conviction. 
 
 It is reasonably certain, then, that these 
 
 28 
 
THE UNITED STATES vs. BURR 
 
 formidable voltunes contain every scintilla of 
 competent evidence that could be procured against 
 Burr at a time when the events were fresh in the 
 witnesses' minds, and as no testimony was sub- 
 mitted in his defence, one would not expect to 
 find much material for his vindication in such 
 a record. Strange as it may seem, however, 
 this unpromising official report presents a 
 stronger case for Burr than all the briefs and 
 special pleadings of his zealous partisans, and 
 the explanation of this anomaly involves the 
 history of his extraordinary trial. 
 
 All roads in the United States led to Rich- 
 mond in the summer of 1807, and all news of 
 national importance dated from the Virginian 
 capital. As early as May of that year the city 
 was swarming with strangers of every sort and 
 condition, from the most eminent citizens to 
 the wildest adventurers, and expectant throngs 
 hung about the streets at all hours of the day 
 and night, frequently in the mood for mischief. 
 It was at one of these moments that a loud- 
 voiced orator mounted the steps of a comer 
 grocery and began to address the bystanders. 
 His gusty eloquence and unbridled tongue in- 
 stantly caught the fancy of his auditors, but 
 
 2f 
 
DECISIVE BATTLES OF THE LAW 
 
 hisses as well as cheers greeted his fiery periods, 
 and the noise attracted the attention of a dis- 
 tinguished citizen, who stopped to inqyiire the 
 cause of the disturbance. 
 
 " Oh, it's a great blackguard from Tennessee, 
 named Andrew Jackson, making a speech for 
 Burr and damning Jefferson as a persecutor," 
 was the answer, and the respectable gentleman 
 hurried on out of hearing across the court- 
 house green. 
 
 It is possible that Jackson championed Burr's 
 cause for its own sake, for he had had personal 
 dealings with the accused which qualified him 
 to speak with authority, but most of the poli- 
 ticians who supported their former leader did 
 so not because they loved or believed in him, 
 but because they hated and distrusted Jefferson, 
 The general public, however, had no interest in 
 the defendant save to see him hanged; and the 
 men in the street, having already convicted him 
 by common consent, merely regarded his trial 
 as a spectacular formality enabling them to be 
 in at the death. 
 
 Still, the little city of six thousand inhabit- 
 ants sheltered many intelligent people to whom 
 Aaron Burr ever remained the great man, gift- 
 ed, mysterious, and fascinatingly terrible, and 
 
 .30 
 
THE UNITED STATES vs. BURR 
 
 those who came into close contact with him 
 almost invariably stirrendered to his personal 
 charm. Even to his jailer he was the Grand 
 Seigneur whose rights there was none to dis- 
 pute. 
 
 "I hope, sir," ventured that official at their 
 first encounter, " that it would not be disagreea- 
 ble to you if I should lock this door after dark ?" 
 
 "By no means," graciously returned the 
 prisoner. "I should prefer it to keep out 
 intruders." 
 
 "It is otw custom, sir," continued the turn- 
 key, "to extinguish all lights at nine o'clock. 
 I hope, sir, you will have no objection to eon- 
 form to that." 
 
 "That, sir," answered Burr, "I am sorry to 
 say is impossible, for I never go to bed until 
 twelve and always bum two candles." 
 
 "Very well, sir — ^just as you please," agreed 
 the jailer. " I should have been glad if it had 
 been otherwise; but as you please, sir." 
 
 This was the man whose trial had attracted 
 the vast assemblage to Richmond — a man 
 known from one end of the country to the 
 other as a gallant soldier of the Revolution, 
 a famous lawyer, a shrewd politician, an able 
 United States Senator, a candidate for the 
 
 31 
 
DECISIVE BATTLES OF THE LAW 
 
 Presidency whose tie vote with Jefferson had 
 been broken only after a bitter struggle, from 
 which he had emerged as vice-president to 
 hound Hamilton into a fatal duel and to en- 
 tangle himself in a web of conspiracy apparently 
 spun with the threads of treason. 
 
 All this, and much more than this, was 
 known to every newspaper reader in the land, 
 and those who had no access to the press were 
 almost as well informed by the current rumors 
 and discussions of the day. The whole coun- 
 try knew that his duel with Hamilton had 
 ostracized Burr from society, and driven him 
 from politics with two indictments for murder 
 hanging over his head and financial ruin star- 
 ing him in the face, and no argument was 
 needed to persuade the public that a social 
 and political outcast such as he would seek to 
 retrieve his forttmes by some desperate under- 
 taking calculated to satisfy his prodigal ambi- 
 tions and quench his thirst for revenge. Under 
 such circumstances the man was a suspicious 
 character on general principles, and if an accusa- 
 tion of treason against him needed any other 
 support, the history of the times supplied it. 
 Every one knew that the country had long been 
 on the verge of war with Spain, and that the 
 
 32 
 
THE UNITED STATES vs. BURR 
 
 Western States had been in an ugly mood at 
 the government's neglect of their demands for 
 the free navigation of the Mississippi and other 
 trading concessions from the Dons. Diplo- 
 macy, it is true, had averted actual hostilities, 
 and the commercial grievances had largely 
 disappeared with the purchase of Louisiana 
 from the French, but the fighting blood of the 
 westerners had been aroused, and the treat- 
 ment they had received from their Spanish 
 neighbors had left them sore and none too 
 pleased with a peaceful solution of the diffi- 
 ctilties. 
 
 These facts were matters of common knowl- 
 edge, so when it was asserted that Burr had 
 planned to take advantage of the situation to 
 precipitate a war with Spain, lead the dis- 
 grtmtled States to the redress of their own 
 grievances and the conquest of Spanish prov- 
 inces, and then to separate them from the 
 Union, the information fell on willing ears. 
 Even after the war-cloud had passed, the 
 scheme did not appear chimerical, for the 
 Spanish possessions still remained as a tempt- 
 ing bait for covetous western eyes, and when 
 it was rumored that Burr had not abandoned 
 his design, but intended to lure the disaffected 
 
 33 
 
DECISIVE BATTLES OF THE LAW 
 
 States from their allegiance with the conquest 
 of coveted foreign possessions, the accusation 
 had all the force of proof, though details of the 
 nefarious business were not lacking. Burr, it 
 appeared, had acquired an ascendency over 
 Harman Blennerhassett, "the Monte Cristo of 
 the Ohio," and his fabulous fortune had been 
 placed at the disposal of the arch conspirator, 
 who had employed it in building a navy and 
 equipping an army of invasion. It was further 
 explained that operations were to have been 
 begun with a descent on Baton Rouge or New 
 Orleans, where the banks were to have been 
 looted and the enemy furnished with the sinews 
 of war, and that these plans had been frustrated 
 only through the zeal and patriotism of General 
 Wilkinson and the prompt action of the au- 
 thorities, which had effected the surprise and 
 capture of the insurgent forces with all the chief 
 conspirators. 
 
 Such was the story of the plot widely pub- 
 lished in the press and confirmed by the gov- 
 ernment proclamations and the movements of 
 the United States forces under General Wilkin- 
 son. This zealous informer, in a fine frenzy of 
 patriotism, had declared martial law in New 
 Orleans at the first sign of danger, and his spec- 
 
THE UNITED STATES vs. BURR 
 
 tacular efforts to supjiress the threatened re- 
 bellion cdught the popular fancy and made him 
 the man of the hour. As tirne went on, how- 
 ever, and no sign of disaffection appeared in the 
 States which were supposed to be hot-beds oi 
 insurrection, the public soon tired of his turbu- 
 lent exertions. Moreover, Burr's much^heralded 
 arrny and navy failed to put in an appearance 
 and it was subsequently learned that he had 
 never commanded anything but a few flatboats 
 danying a handful of unarmed men. Finally 
 when it became rumored that Wilkinson was £ 
 peiisioner of the Spanish government, trouble- 
 some questions began to be asked without an 
 swer. How did the General happen to be it 
 the confidence of a traitor? What were his 
 relations with Spain, and what was an office] 
 of the United States army doing with a foreigr 
 peilsion anyway? Had he not compromisec 
 himself in some manner, and was he not trying 
 to escape complicity by raising a dust anc 
 making iguch ado about nothing ? 
 
 The whole affair began to look ridiculous 
 but the Administration had no intention . o 
 beifig laughed out of court, and at the prope 
 itioment it submitted proofs strong enough t( 
 silence the most incorrigible doubter. Thes 
 ♦ 35 
 
DECISIVE BATTLES OP THE LAW 
 
 were nothing less than the sworn statements of 
 Generals Wilkinson and Eaton, and of Commo- 
 dore Truxttin, who had apparently been ap- 
 proached by Burr with offers of high command 
 or otherwise tempted to participate in his 
 treason, and these telltale exhibits were pub- 
 lished broadcast throughout the land. In the 
 face of such testimony it was no longer possible 
 for any one to dispose of the expedition as a 
 mere filibustering effort against Spain, or to rid- 
 icule the Administration's extraordinary zeal. 
 There stood the facts ia black and white, re- 
 vealing as damnable a story of treason as was 
 ever recorded, and the moment this was com- 
 prehended there was practically but one opinion 
 of the defendant in the case of the United States 
 against Burr. 
 
 It is no wonder, then, that an excited multi- 
 tude stormed the Federal Court for the Fifth 
 Circtiit and District of Virginia at Richmond on 
 the morning of August 3d, long before the hour 
 of opening, and that the tipstaves were rushed 
 off their feet in their efforts to guard the doors. 
 Had they been able to announce that the trial 
 would be one of the longest upon record, they 
 might have discouraged the invaders, but as it 
 was they barely succeeded in saving the space 
 
 36 
 
THE UNITED STATES vs. BURR 
 
 reserved for the contending covinsel, leaving the 
 other members of the bar to fight their way in 
 with the crowd, which included Zachary Taylor 
 and Washington Irving, among many others 
 known to fame or destined to become so. A 
 similar crush had occurred when Burr had been 
 indicted, and then Winfield Scott was the only 
 representative of the legal profession who had 
 secvired a post of vantage, and he held it solely 
 by virtiie of those fighting qualities which sub- 
 sequently distinguished him in the war with 
 Mexico. Whether or not he was equally suc- 
 cessful on this later occasion cannot be demon- 
 strated, but it is certain that when the prisoner 
 appeared in the court-room, accompanied by his 
 son-in-law, the Governor of South Carolina, there 
 was not an inch of standing-room unoccupied, 
 and almost the entire audience was on its feet 
 as he made his impressive entrance. 
 
 Always dignified and mindful of personal ap- 
 pearance. Burr had dressed himself with scrupu- 
 lous care in a becoming suit of black, and his 
 powdered hair, drawn into a queue neatly tied 
 with ribbon, displayed his strong face to the 
 best possible advantage. His remarkable eyes 
 swept slowly and serenely over the hostile spec- 
 tators, and General Wilkinson was the only 
 
 37 
 
DECISIVE BATTLES OF THE LAW 
 
 observer who detected any faltering in his gaze. 
 Wilkinson had, however, a better, opportunity 
 than any one else for studying the prisoner's 
 countenance, for Burr undoubtedly favored him 
 with more than a passing glance. Indeed, there 
 is evidence that his eyes rested for several mo- 
 ments on his accuser's ruddy countenance, and 
 then travelled down the whole length of his 
 rotund person arid up again before they con- 
 centrated in a stare which the chief witness for 
 the government afterwards described as terror^ 
 stricken, but which was otherwise interpreted 
 by less prejudiced authorities. It is not at all 
 probable, however, that the pensioner of Spain 
 or any other witness would have succeeded in 
 forcing Burr to betray himself. He knew that 
 every eye in the room was focussed upon him, 
 eager to detect a sign of guilt, but the situation 
 had no terrors for a man accustomed to facing 
 public assemblages and swaying them at will. 
 Under some other test it is conceivable that he 
 migkt have flinched, for in the field of intrigue 
 he had made a sorry exhibition of himself and 
 betrayed his plarts at every turn. But in the 
 court-t-oom he was at home again and master of 
 the event, and it was as a lawyer that he coolly 
 surveyed the hostile audience before he turned 
 
 38 
 
THE UNITED STATES vs. BURR 
 
 and gravely inclined his head towards the judge 
 and assembled counsel. 
 
 Chief- Justice John Marshall, the great ex- 
 ponent of the Constitution, whose statue holds 
 a place of honor only second to Washington's 
 at the national Capitol, had been designated to 
 conduct the trial, and by his side S3,t Cyrus 
 Griffin, the district judge* who may have been 
 an qmament to the bench in every sense of the 
 word, but whose presence on this as on a for- 
 mer occasion was solely ornamental. The Chief 
 Justice had been appointed to the bench as a 
 ITederalist, and he was therefore politically op- 
 posed to Jefferson, but no more fortunate judi- 
 cial assignment could have been made for a trial 
 which was to require not oply ability and learn- 
 ing, but also coiu-age and originality of a high 
 order. Indeed, no one but a, jurist of authority 
 could have commanded the respect of the com- 
 pany gathered at the lawyers' tables, for a more 
 brilliant assemblage of lega} talents never graced 
 a court of law. 
 
 Edmvmd Randolph was Burr's senior counsel 
 — a lawyer of national reputation, wjiose record 
 as Attorney - General and Secretary of State 
 under Washington, and as Attoniey - General 
 and GrQvernor of Virginia, well entitled him tP 
 
 39 
 
DECISIVE BATTLES OF THE LAW 
 
 his pre-eminence in the profession. His second- 
 in-command was John Wickham, an English- 
 man by birth, one of the foremost lawyers in 
 Virginia — a master of wit and sarcasm, and a 
 past-master of strategic wiles; and by his side 
 sat Luther Martin, ex- Attorney-General of Mary- 
 land, who knew more law when drunk than most 
 of the bar knew when sober, and who had volun- 
 teered his services in sheer hatred of Jefferson 
 and all his works. Coarse, vtilgar, gross, and 
 generally under the influence of liquor, this 
 man's mind was still a perfect storehouse of 
 legal precedents, and before the trial ended, his 
 excessive zeal exasperated Jefferson to the point 
 of seriously suggesting his indictment. With 
 this brilliant trio were associated Benjamin 
 Botts, father of John Minor Botts, the distin- 
 guished Virginian; Charles Lee, ex- Attorney- 
 General of the United States and member of 
 another distinguished Virginian family; and 
 Jack Baker, a lame man, who played the merry- 
 andrew and kept the audience diverted with his 
 ready wit and good-humor. All of these distin- 
 guished counsel represented the accused without 
 accepting compensation of any kind. 
 
 To this formidable array of volimteers the 
 government opposed the District - Attorney, 
 
 40 
 
THE UNITED STATES vs. BURR 
 
 George Hay, son-in-law of James Monroe, the 
 future President, a respectable, zealous, and 
 fairly capable lawyer, but long-winded and with- 
 out initiative. He was ably seconded, however, 
 by William Wirt, the most promising member 
 of the Richmond bar, a handsome, captivating 
 fellow not over thirty-five years of age, but 
 destined to prove himself worthy of any man's 
 steel; and Alexander MacRae, the crusty, sharp- 
 tempered Lieutenant-Governor of Virginia, an 
 able lawyer of courage and tenacity, was also 
 retained in the government's interests. Neither 
 defence nor prosecution, however, boasted a 
 more formidable advocate than the prisoner 
 himself, and even the Chief Justice was less 
 experienced, for, as President of the Senate, 
 Burr had presided at the impeachment of Judge 
 Samuel Chase — ^the only cause at all comparable 
 in importance with the case at bar — and his con- 
 duct of that historic arraignment had been in 
 every way distinguished. He was not, it is true, 
 the highest type of the profession, but by nature 
 and training he was a power in the courts, and 
 rumor has it that he never lost a case. 
 
 Man to man, then, the government was over- 
 weighted at the start, but the spectators, anx- 
 iously awaiting the opening of hostilities, did not 
 
 41 
 
DECISIVE BATTLES OF THE LAW 
 
 know this, and it would not have affected their 
 opinion of the outcome if they had been thor- 
 oughly informed. The belief in Burr's guilt had 
 become so firmly fixed in the public mind that 
 doubt almost smacked of disloyalty, and it was 
 generally expected that the prosecution would 
 make short work of the defence. The proceed- 
 ings had no sooner begun, however, than it was 
 demonstrated that the Administration had tried 
 its case in the newspapers not wisely but too 
 well. Only fotir of the first panel of forty-eight 
 talesmen summoned for jury duty had undecided 
 opinions about Burr, and only one of those four 
 expressed himself as entirely unprejudiced con- 
 cerning him. The other forty-four were so ir- 
 reconcilably hostile that the court promptly dis- 
 charged them, and another panel was summoned. 
 This second lot, however, was worse than the 
 first, and the situation grew more , and more 
 serious as the sifting process continued, for one 
 candidate after another expressed open hostility 
 and even hatred for the defendant. At last, 
 when hope of securing an impartial jury had 
 almost faded, a talesman by the name of Morri- 
 son took the stand who, it was believed, would 
 prove an exception to the rtile. This gentleman 
 had apparently kept an open mind on the sub- 
 
 42 
 
THE UNITED STATES vs. BURR 
 
 ject of the prisoner's innocence or guilt, and 
 was willing to serve as a juror — almost too will- 
 ing it seemed to the defence — and Mr. Botts rose 
 to cross-examine. 
 
 "Are you a freeholder?" asked the counsel. 
 
 " Yes ; I have two patents for land," answered 
 the candidate. 
 
 "Are you worth three hundred dollars?" con- 
 tinued the examiner. 
 
 " Yes, ' ' snapped the witness. " I have a horse 
 here worth half of it." 
 
 " Have you another at home to make up the 
 other half?" jocosely pursued the attorney, and 
 the audience laughed. 
 
 "Yes, four of them!" retorted the talesman, 
 angrily. " I am surprised there should be so 
 much terror of me," he continued, addressing 
 the audience; "but perhaps my name may be 
 a terror," he added, his voice rising to a shout, 
 "for my first name is Hamilton!" 
 
 This " unprejudiced " candidate was then ex- 
 cused, and for fotirteen days the weary search 
 continued without success. Not one impartial 
 citizen was discovered in the entire second panel ; 
 and at this juncttire the proceedings were 
 brotjght to a stand-still. After some discussion, 
 however, the defence suggested that it be al- 
 
 43 
 
DECISIVE BATTLES OP THE LAW 
 
 lowed to select any one it chose from the 
 last panel, and the acceptance of this Tinique 
 proposition paved the way for one of the 
 most startling moves in this extraordinary 
 trial. 
 
 Strictly speaking, not one of the proposed 
 jurors was eligible to a seat in the jury-box, 
 but of course some of them were less bitter 
 against the defendant than others, and it was 
 natural to suppose that Burr's advisers woiild 
 take advantage of that fact and select the best 
 of a bad lot. Nothing so commonplace, how- 
 ever, characterized their plans, and to the utter 
 amazement of all outsiders Burr proceeded to 
 nominate the most objectionable talesmen on 
 the entire list. Inexplicable as this surprising 
 manoeuvre must have been to the general public, 
 it was, of course, instantly comprehended by 
 the opposing counsel. Burr and his advisers 
 doubtless reasoned that the safest jurors would 
 be those whose hostility had been most thor- 
 oughly exposed. The very fact that he was 
 willing to place his life in the hands of his 
 avowed enemies was, of course, the most elo- 
 quent protest of innocence which a prisoner 
 could make. It was a disarming appeal to 
 their honor and fairness, and under ordinary 
 
 44 
 
THE UNITED STATES vs. BURR 
 
 circumstances this bold, well-planned, and sub- 
 tle move could not possibly have failed. 
 
 Certainly the men selected had made no 
 secret of their feelings towards the accused. 
 Indeed, one of them had openly expressed him- 
 self to the effect that Burr ought to be hanged, 
 and another was reported to have said that he 
 had come to Richmond with the express hope of 
 being chosen on the jury, and that if he were 
 fortunate enough to be accepted he would vote 
 to hang the defendant without more ado. This 
 individual subsequently explained that he had 
 uttered this monstrous sentiment in a spirit of 
 levity, but his later conduct illustrated the 
 maxim that there is many a true word spoken 
 in jest. Both he and the other advocate of 
 summary punishment, and others equally unfit, 
 were, nevertheless, gravely sworn in as impar- 
 tial trial jurors. Some had the decency to 
 protest against their selection, declaring them- 
 selves utterly incapable of rendering a fair and 
 impartial verdict, but their excuses were over- 
 ruled, and when the jury was at last completed 
 it is safe to say that a more hostile array never 
 confronted a prisoner on trial for his life. 
 
 The District Attorney then opened for the 
 government with a recital of the facts by which 
 
 45 
 
DECISIVE BATTLES OF THE LAW 
 
 he intended to prove the prisoner worthy of an 
 ignominious death, and if the audience had np^ 
 previously been convinced of his guilt they 
 would have been persuaded by the powerfijj 
 arraignment to which they listened in breath- 
 less silence, and doubtless there was a general 
 feeling in the crowded court-room that this 
 furious attack was the beginning of the end. 
 
 The moment General Eaton, the first witness, 
 took the stand, however, the prosecution :re^ 
 ceived a sudden and unexpected check. With 
 expectation roused to the highest pitch, and 
 every ear strained to catch the opening ques- 
 tions and answers, Burr's lawyers rose and 
 interposed a preliminary objection. Neither 
 General Eaton nor any other witness could 
 testify as to the defendant's treasonable inten- 
 tions, they contended, until some treasonable 
 act of his should be proved. This principle was 
 not new. The rule of law that proof of a 
 killing must precede all other evidence in a 
 murder trial had long been established, but the 
 application of this doctrine to the case at bar 
 interfered with the prosecution's plang, and the 
 counsel for the govemrnent were instantly up 
 in arms. Doubtless the lay spectators who 
 watched the fierce skimiish which ensued were 
 
 46 
 
THE UNITED STATES vs. BURR 
 
 sorely puzzled to understand what it all meant, 
 but the Contending forces evidently realized its 
 full importance and a sharp skirmish followed. 
 For a time the prosecution succeeded in main- 
 taining its position, but the attack Was persist- 
 ent, and before night put an end to the conflict 
 the government forces were obliged to yield 
 ground and re-form their lines for a niodified 
 campaign. This was so quietly effected that 
 few laymen realized how seriously the prose- 
 cution had beeri damaged, and when Gen- 
 eral Eaton resumed the witness-chair the next 
 morfting no one but the lawyers knew exactly 
 what had happened. The Chief Justice had, 
 however, ruled that the witness might testify as 
 to Burr's intentions to commit the particular 
 acts specifically set forth in the indictment^ but 
 that no testimony of general treasonable designs 
 would be received-^a distinction with a differr 
 ence which was to prove increasiiigly important 
 as the case proceeded. 
 
 Eaton's testimony was not apparently af- 
 fected by the decisioli. It was, in the main, 
 a repetition of the facts set forth in his pub- 
 lished statements detaihng Burr's attempts to 
 induce him to accept a military command in 
 the proposed expedition. He had agreed, he 
 
 47 
 
DECISIVE BATTLES OF THE LAW 
 
 said, to co-operate in the tindertaking as long 
 as it was confined to the conquest of Mexico, 
 but when its treasonable nature had been re- 
 vealed to him, he had repudiated the whole 
 business with scorn and loathing. 
 
 It was a smooth, carefully rehearsed, and on 
 the whole a convincing story, and the defence 
 allowed the witness to tell it without objection 
 or interruption of any kind, but not a tone of 
 his voice or an expression of his face escaped 
 the watchful eyes of Burr and his advisers ; and 
 when the recital had been brought to a trium- 
 phant conclusion, Luther Martin rose slowly 
 from his seat and confronted the accuser. There 
 was a moment's profound silence, and then the 
 attack began. 
 
 Had not General Eaton visited the capital 
 shortly after he had learned of the prisoner's 
 treasonable plans ? The witness admitted that 
 he had. Well, did he at that time denounce 
 the plot to the authorities? No. Why not, 
 pray? Because he feared to place his testi- 
 mony against the weight of Mr. Burr's char- 
 acter. Indeed! Well, he ^oJ held a conference 
 with the President on that occasion concerning 
 Mr. Burr, had he not? Yes. Just what was 
 the nature of that conference? He had urged 
 
 48 
 
THE UNITED STATES vs. BURR 
 
 the President to appoint Burr to a foreign 
 mission — either Paris, London, or Madrid. 
 What! Impossible! Surely he never could 
 have recommended a man whom he knew to 
 be a traitor to his country for an important 
 post in the country's service ? That was utterly 
 incredible! He had done so only to rid the 
 coimtry of a dangerous citizen. Really? So 
 that was his purpose, was it? Had he con- 
 fided this highly moral argument to the Presi- 
 dent, or had he sealed it in his patriotic bosom ? 
 He had not confided it to the President. Ex- 
 actly! Well, possibly that was the reason the 
 appointment had not been made! * 
 
 Although the witness had endeavored to 
 forestall these extraordinary admissions in his 
 published affidavit and in his direct examina- 
 tion, their full significance had not been appre- 
 ciated, and the sensation they produced had 
 scarcely subsided when he was on the rack 
 again — ^this time with Burr as chief inquisitor. 
 
 Had not the witness been attempting for 
 some years to collect a certain claim from the 
 United States government? He had. Well, 
 what was the nature of that claim? It was 
 
 'The effect and substance of the cross-examination and not 
 the exact questions and answers are here attempted. 
 
 49 
 
DECISIVE BATTLES OF THE LAW 
 
 for money owed to the witness by the United 
 States government for official expenses in Trip- 
 oH. Well, had he not presented that claim to 
 Congress? He had. Did Congress reject or 
 allow it? It did not allow it, eh? Well, was 
 it not true that certain very injurious strictures 
 had been passed upon the conduct of the wit- 
 ness while his claim was tmdeir discussion in 
 the House of Representatives? He had been 
 criticised. Unjustly ? Of course ! Bitt the end 
 of it all was the rejection of the claim, wasn't 
 it? It was not allowed. Well, an^^ay it 
 wasn't paid, was it? Not then. Nbt then?. 
 Then when? Some time ago? About how 
 long since? Was it before or after the witness 
 swore to the deposition against the prisoner in 
 this case ? After. Indeed ! Just about how long 
 after he signed that widely published document 
 had his claim been adjusted? Three weeks 
 afterwards. Really? Well, what was the suni 
 then paid to him? That tvas his private con- 
 cern. No, sir, it was public business! What 
 sum had he so opportvinely received from 
 Treasury funds? Ten thousand dollars! 
 
 No further questions were necessary to dis- 
 credit the witness, a,nd if any informer ever left 
 the stand more thoroughly impeached, his testi- 
 
 50 
 
THE UNITED STATES vs. BURR 
 
 mony has mercifully been omitted from the 
 records. Under ordinary circumstances such 
 testimony would have ruined the prosecittion's 
 case; but the times were out of joint for Burr, 
 and probably no exposure of his enemies could 
 have succeeded in reinstating him in the public 
 confidence. 
 
 But despite the advantage of their intrenched 
 position the government forces must have been 
 thrown into some confusion by this fiasco, 
 for they placed Commodore Truxtun on the 
 stand, and nothing but excitement and disorder 
 can explain such an egregiotis blunder. Indeed, 
 after he was called and before he had fairly 
 begun his testimony the District Attorney at- 
 tempted to withdraw him, but the defence in- 
 stantly objected, and the mischief was done. 
 
 He had been approached by Burr, he assert- 
 ed, to take charge of a naval expedition against 
 Mexico, but had declined the proposition be- 
 cause the President had not been privy to it. 
 That was all there was to his testimony — not a 
 word about secession or disunion or anything 
 akin to it. In fact, he unequivocally declared 
 that he knew nothing whatsoever concerning 
 any treasonable act on Burr's part! Encour- 
 aged by this feeble showing, the defence in- 
 
 s SI 
 
DECISIVE BATTLES OF THE LAW 
 
 stantly pressed forward, asstuning the offen- 
 sive. 
 
 "Were we not on terms of intimacy?" Bun- 
 demanded of the witness. "Was there any 
 reserve on my part in our frequent conversa- 
 tions, and did you ever hear me express any 
 intention or sentiment respecting a division of 
 the Union?" 
 
 Truxtun received this volley of questions with 
 perfect calmness. 
 
 "We were very intimate," he admitted. 
 "There seemed to be no reserve on your part. 
 I never heard you speak of a division of the 
 Union." 
 
 "Did I not state to you that the Mexican 
 expedition would be very beneficial to the 
 country?" Burr tritimphantly demanded. 
 
 "You did," replied the witness; and then 
 passing to his colonization plans %h.e prisoner 
 continued: 
 
 " Had you any serious doubts as to my inten- 
 tions to settle those lands?" 
 
 " So far from that," answered the Commodore, 
 "I was astonished at the intellig^ce of your 
 having different views contained in the news- 
 papers received from the Western States after 
 you went thither." 
 
 S2 
 
THE UNITED STATES vs. BURR 
 
 After this open discomfiture the prosecution 
 had no choice but to withdraw the Commodore 
 and cover his retreat as best it might, and the 
 move was effected in good order, ending in an 
 apparently formidable stand with Peter Taylor, 
 the gardener of Blennerhassett's Island. 
 
 Blennerhassett's Island was known to have 
 been the headquarters of the conspirators, and 
 it was there, if anywhere, that the government 
 should have been able to locate some treasonable 
 act on Burr's part to support the indictment. 
 Up to this point all the testimony had related to 
 what Burr had said. Now, with a witness from 
 the scene of action, it was expected that evi- 
 dence of his treasonable acts would be forth- 
 coming, and the excitement rose to high pitch. 
 Taylor started off bravely by repeating a con- 
 versation he had had with Blennerhassett about 
 getting together a company of young men with 
 rifles. These men were wanted, he was in- 
 formed, to aid in settling some lands which 
 Burr had purchased, and later his employer 
 advised him that Burr and he intended an 
 invasion of Mexico. The witness thereupon 
 told Blennerhassett that the people had got it 
 into their heads that Burr and he intended to 
 divide the Union, to which reply was made 
 
 S3 
 
DECISIVE BATTLES OF THE LAW 
 
 that Burr and he coiild not of their own motion 
 effect a secession; they coiild only show the 
 people the advantages of separating from the 
 Union. 
 
 This was certainly dangerous talk, but Blen- 
 nerhassett and not Btirr was responsible for it, 
 as the latter was not present at the conversation, 
 and it presently appeared that the witness had 
 never even as much as seen Burr on Blenner- 
 hassett's Island I This ludicrous anticlimax ab- 
 solutely disposed of the witness, who retired in 
 favor of Colonel Morgan. 
 
 Morgan was a distinguished citizen of Penn- 
 sylvania whom Burr had visited on one of his 
 western trips, and he repeated several heretical 
 remarks which Burr dropped in the course of 
 conversation, touching the weakness of the 
 existing government and the instability of the 
 Union. The Colonel also gave a highly dra- 
 matic account of how Burr had sought him out 
 one night, long after every one else had retired, 
 to ask him about a certain man who had been 
 involved in disloyal intrigues some years before, 
 and then, with the audience keyed up to the 
 highest pitch of expectation, the old gentleman 
 solemnly averred his belief that Burr would 
 certainly have unbosomed himself of treasona- 
 
 54 
 
THE UNITED STATES vs. BURR 
 
 ble matter on that occasion had he received any 
 encouragement! As it was, however, he had 
 merely gone back to bed without divulging 
 anything. 
 
 Nothing more farcical than such testimony 
 was ever seriously submitted to a court and 
 jury, and under modem practice it would be 
 struck from the record as irrelevant and ab- 
 surd. Still it was all solemnly received and 
 recorded, and the end was not yet, for Colonel 
 Morgan's two sons followed their father on the 
 stand with testimony concerning Burr's disre- 
 spectful allusions to the governmental powers- 
 that-were and his contemptuous opinions touch- 
 ing the strength of the existing Union. Such 
 sentiments were doubtless very regrettable and 
 vmpatriotic, but Burr was not on trial for his 
 opinions, and not one word in the testimony of 
 the witnesses convicted him of anything worse 
 than loose talk. 
 
 These repeated side - attacks indicated a 
 strange weakness on the part of his prosecu- 
 tors, and it began to look as though they had 
 reached the end of their resources. Finally, 
 however, a Dutch laborer named AUbright 
 took the stand, and as he had been employed 
 at Blennerhassett's Island, expectation was 
 
 55 
 
DECISIVE BATTLES OF THE LAW 
 
 again aroused that Burr's direct complicity- 
 was about to be exposed. AUbright speedily- 
 proved himself a stupid, ignorant, and garru- 
 lous witness, but that was about all he suc- 
 ceeded in accomplishing, and the few facts in 
 his possession were indisputably in favor of 
 the accused. Burr had explained his enterprise 
 as an effort to settle some new lands, AUbright 
 asserted, and the recruits gathered at the 
 island had expressly disclaimed any intention 
 hostile to the United States, stating that they 
 were to move against the Spanish. These men 
 had rifles of their o-wn, according to the wit- 
 ness, but no bayonets or stores of ammunition, 
 and they were neither organized nor drilled as 
 soldiers. 
 
 These damaging admissions terminated the 
 usefulness of this worthy personage, and he 
 gave way to Blennerhassett's groom, who con- 
 tinued the kitchen gossip begun by his fellow- 
 servant — an utterly futile recital from a legal 
 stand-point. He knew nothing even tending to 
 prove a treasonable act on Burr's part, and 
 the stray facts scattered through his testimony 
 were more valuable to the defence than to the 
 prosecution, which from that moment began to 
 yield all along the line. Witness after witness 
 
 56 
 
THE UNITED STATES vs. BURR 
 
 was called to the front in rapid succession, 
 evidently with the purpose of proving the 
 magnitude of Burr's preparations, but these 
 men, who were contractors, boat-buUders, and 
 other mechanics supposed to have been engaged 
 in eqtiippuig a formidable army and navy, 
 absolutely refuted the stories which the news- 
 papers had circulated concerning Bvut's im- 
 posing forces by showing that his expedition, 
 though fairly supplied for colonization purposes, 
 was inadequate for a filibustering venture and 
 absolutely preposterous as an army of invasion. 
 One wotild think that this testimony should 
 have warned the District Attorney that he was 
 on dangerous ground, and why he should have 
 rushed blindly ahead along the same lines day 
 after day is more than any one, at this date, 
 can possibly imagine. Certainly in summoning 
 Dudley Woodbridge, Blennerhassett's agent, to 
 the stand he courted destruction; and the in- 
 evitable happened, for the witness promptly 
 exposed the myth of Blennerhassett's Golconda- 
 like fortune with prosaic facts and figures which 
 proved that instead of being fabulously rich 
 the " Monte Cristo of the Ohio " was not worth 
 much more than $20,000, very little of which 
 had gone into Burr's hands. 
 
 57 
 
DECISIVE BATTLES OF THE LAW 
 
 This culminating disaster put the finishing 
 touch to a campaign of blunders, and the forces 
 of the government, blocked upon every side, 
 halted in confusion. General Wilkinson, the 
 original informer, had not yet been called, how- 
 ever, and both sides realized that if this redoubt- 
 able but extremely vtdnerable ally cotdd be 
 manoeuvred into position, the tide of battle 
 might possibly be turned. Wilkinson admitted- 
 ly knew nothing of any treasonable act on 
 Burr's part, but he was said to be armed with 
 incriminating cipher despatches and other cor- 
 rupt communications, of which he had given 
 what might be called a free translation in the 
 public press, and on paper, at least, he pre- 
 sented a formidable showing. To effect a 
 juncture with him, then, was the only possible 
 move for the prosecution, and on this it con- 
 centrated all its remaining efforts. The de- 
 fence, however, was keenly alive to the situa- 
 tion, and it determined at all hazards to prevent 
 the General from relieving the hard-pressed foe. 
 No act of treason had been proved against Burr, 
 and the government virtually admitted that it 
 had exhausted its material on this point. 
 Therefore it was contended that Wilkinson's 
 alleged information of the defendant's inten- 
 
 S8 
 
THE UNITED STATES vs. BURR 
 
 tion to commit a crime was inadmissible ac- 
 cording to the laws of legal warfare, and on 
 this issue, which had been foreshadowed at the 
 ver}' opening of hostilities, Burr's champions 
 challenged their opponents to single combat. 
 
 A more remarkable legal tournament than 
 that which followed the acceptance of this gage 
 of battle has never been witnessed in an Amer- 
 ican court. 
 
 Wickham for the defence and MacRae for 
 the prosecution were the first to enter the lists, 
 and their fierce collision, though less spectacu- 
 lar than some of the encounters which were to 
 follow, was obviously a duel to the death, 
 fought with grim determination by trained 
 antagonists who were equal masters of every 
 legal cut and thrust and parry, and after three 
 days of savage fighting neither had been com- 
 pelled to bite the dust. Then Wirt for the 
 prosecution and Botts for the defence took the 
 field, and the champion of the government 
 speedily obtained an advantage over his an- 
 tagonist, which he improved during the entire 
 encounter, crowding and cornering him at every 
 move, and finally riding aroimd and over him 
 almost at pleasure. This was perhaps the most 
 brilliant performance on either side, and Wirt 
 
 S9 
 
DECISIVE BATTLES OP THE LAW 
 
 certainly won historical honors, for his achieve- 
 ment was recorded in the oratorical text-books 
 of his time and for many a day after. With 
 victory thus perched upon the prosecution's 
 banners, Hay dashed into the fray, riding 
 atilt at Lee, who withstood the shock and more 
 than held his own, until at the end of six days 
 fighting Luther Martin, the reckless, intem- 
 perate volvinteer whom Jefferson had denoimced 
 as "that Federal bulldog," fltuig himself upon 
 the enemy, and something very like a general 
 melee followed. Martin entered the arena not 
 only more thoroughly equipped than any other 
 contestant, but with more' bitterness and per- 
 sonal feeling than all the others combined. 
 He hated Jefferson, and he threw himself into 
 the conflict with a zealous rage which nothing 
 could withstand. For two whole days he bore 
 the brunt of the entire conflict, striking like 
 lightning at every opening, giving no quarter 
 and seeking none — a. terror, a scotirge, and a 
 very fury of assatilt, and when Randolph at 
 last joined in the attack the day was lost for 
 the prosecution, and he and Martin swept the 
 field. 
 
 It was not until the following morning, how- 
 ever, that the victory was officially awarded to 
 
 60 
 
THE UNITED STATES vs. BURR 
 
 the defence, when the Chief Justice in an ex- 
 haustive and masterful opinion delivered a 
 decision which created a lasting precedent, 
 marked an epoch in American law, and prac- 
 tically dismissed the case at bar. No testimony- 
 relative to the conduct or declarations of the 
 defendant elsewhere and subsequent to the 
 transaction at Blennerhassett's Island could be 
 admitted tmder the judge's ruling, and the gov- 
 ernment confessing that it had no further proof 
 at its disposal, the case was submitted to the 
 jury tinder instructions which were eqtdvalent 
 to a direction to acquit the accused. 
 
 But the pubHc, hungering for a victim, was 
 loath to believe that the prosecution had lost 
 the day, and many were firmly convinced that 
 the jtury would not let the prisoner go un- 
 scathed. And it did not. After a short con- 
 stiltation the twelve "good men and true," 
 who had sworn to administer strict justice to 
 the accused, returned and delivered this equivo- 
 cal verdict: 
 
 "We of the jury say," announced Colonel 
 Carrington, the foreman, "that Aaron Burr is 
 not proved to be guilty under the indictment by 
 any evidence submitted to us. We therefore find 
 
 him not guilty." 
 
 6i 
 
DECISIVE BATTLES OF THE LAW 
 
 The words had scarcely left the speaker's 
 Ups before Burr was on his feet indignantly 
 protesting that no "Scotch" ("not proven") 
 verdict could be received, and demanding that 
 the jtiry be directed to report the verdict of 
 Not Guilty in the usual form; and the fact that 
 this just demand was contested by the prosecu- 
 tion is eloquent of the spirit in which the whole 
 prosecution was conducted. Indeed, during the 
 heated discussion which followed, some of the 
 jurors announced that nothing would induce 
 them to change the form of their verdict, and 
 the Chief Justice therefore promptly took the 
 matter into his own hands by directing that 
 the proper verdict be entered as though it 
 had been rendered in lawftil form. With this 
 act of simple justice, after a twenty-eight-day 
 session, the court adjourned, and the great cause 
 ended. 
 
 The jfinding of " not proven," however, voiced 
 the popular judgment of the day. Burr, it was 
 understood, had escaped by some technicality or 
 legal legerdemain which had enabled him to 
 suppress evidence and defeat the ends of justice. 
 Had Wilkinson been permitted to tell his story, 
 it was generally believed that the prisoner wodd 
 have been convicted, sentenced, and hanged. 
 
 62 
 
THE UNITED STATES vs. BURR 
 
 Even after Burr was brought to trial on the 
 minor charge of having plotted an invasion of 
 the Spanish colonies, and Wilkinson in telling 
 his story was convicted on cross-examination of 
 having mistranslated and otherwise falsified the 
 mysterious cipher despatches, there was no 
 reaction in favor of the accused, and his second 
 acquittal merely resulted in more charges of 
 legal trickery. Indeed, the sneer of that 
 "Scotch" verdict pursued Burr to his grave, 
 and it is safe to say that its suspicious innuendo 
 has been more effective than all the tirades of 
 his enemies in arming posterity against him, 
 until to-day his name is popularly linked with 
 that of Benedict Arnold in the list of national 
 traitors. 
 
 If such suspicions are justified, however, they 
 shovild long since have been proved to have had 
 some foundation in fact. History has been busy 
 during the past century with all the principal 
 actors in the great drama of Burr's downfall, 
 and valuable evidence has been accumulated on 
 every side. Wilkinson has been completely vin- 
 masked and discredited. Jefferson has been 
 proved to have been more man than hero, 
 Hamilton has been shown to have been a shrewd 
 politician as well as an able statesman, Marshall 
 
 63 
 
DECISIVE BATTLES OF THE LAW 
 
 has been foj;gotten as a partisan Federalist and 
 acclaimed the greatest jurist of America, but 
 concerning Aaron Burr not one particle of new 
 incriminating evidence has been tmearthed. 
 All that is known against him is recorded in the 
 musty legal record compiled for his destruction; 
 and read without bias, passion, or prejudice that 
 mute appeal from the verdict of "not proven" 
 surely invites a reversal of the judgment of his 
 peers. 
 
Ill 
 
 THE COMMONWEALTH VS. BROWN: 
 THE PRELUDE TO THE CIVIL WAR 
 
 TOYALTY to the soil is the birthright of 
 L/ every Virginian and local pride is his sec- 
 ond nature. For him the State has no rival 
 save his county, and the county none but the 
 city, hamlet, or acreage in which his home is 
 enshrined. Nevertheless, if any one had pre- 
 dicted on October 19, 1859, that the county- 
 seat of Jefferson County was on the eve of 
 world-wide recognition, even the stanchest local 
 champion would have been pvizzled by the 
 prophecy, for there was absolutely nothing to 
 indicate that the peaceful little village, which 
 had slept in the Shenandoah Valley for more 
 than half a century, would ever wake to find 
 itself famous. Yet within twenty -fotir hotirs 
 the eyes of the world were turned in its direc- 
 tion, following the wounded body of John Brown 
 as it was borne to the county jail, and history 
 
 65 
 
DECISIVE BATTLES OF THE LAW 
 
 had already transcribed the name of Charles 
 Town upon its tablets. 
 
 Even after the event, however, it is doubtful 
 if any Virginian would have admitted its his- 
 torical significance. 
 
 A band of miscreants, inflamed by Abolition 
 heresies, had invaded the Old Dominion to in- 
 cite rebellion among the slaves. As a nat- 
 ural consequence most of them had forfeited 
 their lives on the spot, and the survivors had 
 been delivered to the local authorities for speedy 
 trial and execution ; but, to the majority of Vir- 
 ginians, there was nothing in those facts which 
 promised to confer distinction upon the seat of 
 justice. 
 
 The first wild gust of rage and indignation 
 against the raiders had spent itself in the fero- 
 cious slaughter of all but five of Brown's party 
 at Harpei's Ferry, but the State was still pal- 
 pitating with furious excitement when Govern- 
 or Wise assumed control of the situation, and it 
 was universally admitted that if he had intrust- 
 ed the prisoners to the State instead of the Fed- 
 eral troops not one of them would have reached 
 the jail alive. The prompt and determined ac- 
 tion of the authorities in protecting their cap- 
 tives was, however, thoroughly understood, and 
 
 66 
 
THE COMMONWEALTH vs. BROWN 
 
 intelligent public opinion throughout the State 
 supported and practically enforced acquiescence 
 in the government's policy. There had been 
 enough, and more than enough, of summary 
 punishment. Virginian honor was to be vin- 
 dicated thereafter by Virginian law administered 
 with impressive dignity as a grim and terrible 
 object-lesson to all beholders, and it was plainly 
 intimated that any resort to mob violence would 
 be severely dealt with. 
 
 This calm judicial programme did not meet 
 with tmiversal approval. To the average cit- 
 izen any one g^ty of inciting the horror of 
 a servile insurrection was an outlaw — a fiend 
 in human shape — who had no rights which 
 any white man was bound to respect, and the 
 hotheads among the groups collected about the 
 Carter House and every other local fortim in 
 Charles Town were in no mood for legal for- 
 malities or delay. Indeed, had it not been for 
 the facts that the Grand Jury was already in 
 session and the semi-annual term of the Cir- 
 cuit Court about to open, it is extremely doubt- 
 iul if the law would have been allowed to 
 take its course. There was a general impres- 
 sion, however, even among lawyers, that Brown 
 and his confederates could be indicted, tried, 
 
 6 67 
 
DECISIVE BATTLES OF THE LAW 
 
 convicted, sentenced, and probably executed 
 within a single day; but before it was dis- 
 covered that this was impracticable under the 
 Virginian code, which required a preliminary 
 examination on five days' notice, the pris- 
 oners had been secured against any immediate 
 attack. 
 
 Those five days of enforced inactivity were 
 prolific of rumors and alarms of the most sen- 
 sational character, and the military guard at 
 the jail was increased in response to the rising 
 popular excitement. At first it was reported 
 that Brown's Uttle company was merely the 
 vanguard of a mighty Northern army sworn 
 to invade and htuniliate Virginia. Next it 
 was rumored that the slaves throughout the 
 State had been tampered with, and that a 
 secret organization among them was planning 
 a revolt of hideous and diabolical ferocity, de- 
 signed to strike terror to the entire slave-holding 
 popvdation throughout the South. Again it 
 was reported that preparations were being made 
 on every side to effect a rescue of the stirviving 
 captives, and that the Abolitionists of the North 
 were confident of defeating the administration of 
 justice and laughing defiance at Virginian law. 
 No story was too wild for utterance or too fan- 
 
 68 
 
THE COMMONWEALTH vs. BROWN 
 
 tastic for belief, and as each new arrival at the 
 Carter House was instantly surrounded by ex- 
 cited throngs eager to welcome every word from 
 the outside world, it was not long before exag- 
 geration and imagination became the chief 
 ingredients of the lurid tales which passed from 
 Up to lip. 
 
 Even if it had been possible to contradict all 
 the vague reports in circulation it would have 
 been idle to attempt the task. No Virginian 
 could believe that a mere handful of men would 
 try what Brown had attempted without def- 
 inite assurances of support. Instead of main- 
 taining a dignified silence and allowing the out- 
 raged South to inform itself, however, the most 
 powerful journals of the North played upon the 
 fears and sensibilities of the community with 
 impish ingenuity, and some of the most violent 
 Abolitionists actually descended to practical 
 jokes in their efforts to heighten the excitement 
 and spread the alarm. 
 
 Under these circumstances it is not at all 
 surprising that the once peaceful village soon 
 assumed the appearance of an armed camp. 
 Every other man on the highways carried a 
 weapon of some description; lawyers, farmers, 
 and other visitors htmg about the piazzas and 
 
 69 
 
DECISIVE BATTLES OF THE LAW 
 
 corridors of the hotel with rifles or shot-guns in 
 their hands and militia were to be encountered 
 at every turn. The vague and awful rumors of 
 each day resulted in long, sleepless nights, dread 
 with all the unnamable possibilities of a black 
 uprising, and when October 25th dawned Charles 
 Town was already astir and gathering before the 
 jail with eager expectation. 
 
 But the civil and military authorities had 
 been upon the grotmd before the public, and 
 the earliest arrivals found cannon posted be- 
 fore the court-house and every approach to the 
 building guarded by armed sentries. Indeed, 
 the oldest inhabitants scarcely recognized the 
 sleepy old village as they issued from their 
 houses in the gray of that autumn morning. 
 Martial law had not been proclaimed, but the 
 militia were evidently in complete possession, 
 and on every side there were signs of sinister 
 preparation. Even the crowds that began to 
 gather in the early hours of the morning in- 
 cluded comparatively few familiar faces, for 
 strangers had been pouring into the village for 
 days, and the hotels, the post-office, and every 
 other public meeting-place were already over- 
 run with them. Newspaper representatives cir- 
 culated among the groups gathered before the 
 
 70 
 
THE COMMONWEALTH vs. BROWN 
 
 court-house, button - holing the residents for 
 items of local information, but except for their 
 activity there was very little movement in the 
 crowds which hung around the centres of in- 
 terest discussing the situation, or whiling away 
 the time by brushing the dry leaves about in 
 listless search for fallen chestnuts. Here and 
 there voices were raised in fierce denunciation 
 of the prisoners, but for the most part the citizens 
 conversed in low tones as they idled imder the 
 tall spreading trees, and a stdlen quiet pervaded 
 the atmosphere, hazy with the smoke of burn- 
 ing leaves and heavy with their pungent odor. 
 Hour after hour passed vmeventfully in this 
 fashion, but at last the court-house doors were 
 opened. Only those nearest the entrance gained 
 admittance, however, for the first eager rush was 
 checked by the troops, and none but those who 
 were identified to the sentries were permitted 
 to pass thereafter. 
 
 A long hour of waiting followed, and the ex- 
 cluded public hung patiently about the court- 
 house steps, massed around the heavy white 
 Corinthian columns supporting the portico, until 
 the bell in the cupola began a deep-toned clang- 
 ing. On ordinary court days this summons 
 served to warn the lawyers and others gathered 
 
 71 
 
DECISIVE BATTLES OF THE LAW 
 
 at the Carter House that the legal proceedings 
 were about to open; and those having busi- 
 ness with the law usually sauntered across the 
 road to the court-house with characteristic 
 deliberation. But on this occasion the hotel 
 was already deserted and the expectant throng 
 immediately moved towards the jail. At the 
 same moment a roll of drums answered the 
 bell and a double file of soldiers issued from 
 the jail door, marching in column of twos on 
 either side of the short path leading from the 
 jail to the cotort-house, where they halted and 
 faced each other. The rear rank of each file 
 was then swting to the right-about, with fixed 
 bayonets, and rifles loaded, capped, and cocked, 
 and in another moment the command " Port 
 arms!" rang out sharply in the still autumn air. 
 Instantly the crowd surged about the troops, 
 peering eagerly through their close ranks or 
 craning down at them from the court-house 
 steps; and as the soldiers brought their pieces 
 to position, the sheriff emerged from the jail, ac- 
 companied by Captain Avis, the jailer, and two 
 armed guards. There was a moment's delay, 
 and then two other men appeared on the thresh- 
 old, one of them partially supporting the other, 
 an old, bareheaded man over six feet in height, 
 
 72 
 
THE COMMONWEALTH vs. BROWN 
 
 his head swathed in blood-stained bandages, and 
 his face as gray as his thick, wiry hair, and long 
 unkempt beard, but whose piercing blue-gray 
 eyes showed no trace of fear. Instinctively the 
 soldiers braced themselves to withstand a rush 
 if the crowd should attempt to hurl itself upon 
 the manacled prisoner, but there was not a 
 hostile movement of any kind, and scarcely a 
 word of denunciation was flung at the old ring- 
 leader as he tottered down the closely guarded 
 aisle. Doubtless the pitiably feeble condition 
 of the man and his fellow - captives enforced 
 the silence, and certainly their appearance was 
 sufficiently wretched to move the most stony- 
 hearted. Brown's body had been repeatedly 
 pierced by sword-thrusts, and his head and face 
 had been slashed by sabre-cuts almost beyond 
 recognition; and Stephens, his second in com- 
 mand, had three musket wounds in his head, 
 two in his breast, and one in an arm, to say 
 nothing of a ghastly rip across his forehead 
 made by a glancing ball. 
 
 The little procession crept slowly along the 
 narrow path, for the prisoners could hardly stand 
 and every step they took was plainly torture. 
 Finally they reached the court-house steps, 
 movinted them with evident anguish, and in a 
 
 73 
 
DECISIVE BATTLES OP THE LAW 
 
 few moments John Brown and his confederates 
 faced their formal accusers. 
 
 There was nothing very impressive in the 
 scene which greeted the fierce old campaigner as 
 his restive eyes swept the crowded court-room. 
 The majesty of the law at Charles Town lacked 
 all the trappings which favor and heighten 
 dignity. The plain, whitewashed walls smeared 
 and stained with head and hand marks, the high, 
 dirty, curtainless windows, the two hideous 
 wood-stoves with their crude, black, crooked 
 smoke-pipes, the bare, dirty floor strewn with 
 peanut and chestnut shells, the stifling atmos- 
 phere heavy with the odor of stale tobacco smoke 
 and the respirations of five or six hundred closely 
 wedged spectators — ^none of the surroundings 
 or conditions was calculated to command re- 
 spect or to inspire heroism. 
 
 Every eye in the room centred on the shackled 
 prisoner, and in the mass of faces turned towards 
 him not even a fleeting expression of sympathy 
 was anywhere discernible. No articulate demon- 
 stration of hostility had greeted his entrance, 
 but the silence of those hundreds of men who 
 glared at him from every nook and corner of the 
 room was eloquent of the implacable hatred he 
 had inspired. Against this ominous background, 
 
 74 
 
THE COMMONWEALTH vs. BROWN 
 
 bristling with bayonets, and touched here and 
 there with color in the motley vmiforms of the 
 militia, a few individuals loomed out of the 
 murky atmosphere. 
 
 On the chairs behind the judicial desk sat 
 eight justices of the peace, forming the Board 
 of Magistrates, whose duty it was to examine 
 the accused, dismiss them or hold them for the 
 action of the Grand Jury. Some of them were 
 men of character and standing in the commvmity, 
 and all of them were competent for their purely 
 formal duties. Before the bench at the cotmsels' 
 table sat a hard-faced, dissipated-looking man 
 with a sharp, hooked nose, and a weak chin 
 covered with a few days' growth of beard, his 
 hair uncombed and tumbled and his clothes 
 dirty and awry. This was Charles Harding, 
 the Commonwealth's attorney — ^the driftwood 
 of some political stream which had landed him 
 upon Jefferson Cotmty — sober for the instant, 
 but incapable by habit, temperament, or educa- 
 tion of conducting any but the most perfunctory 
 of official duties. Near this legal wreck sat a 
 man of singularly distinguished appearance, tall, 
 handsome, alert, and vigorous — ^his clean-shaven, 
 refined face and clear, intelligent eyes contrast- 
 ing strangely with the coarse-grained individual 
 
 7S 
 
DECISIVE BATTLES OF THE LAW 
 
 beside him. This was Andrew Hionter, an able 
 member of the Virginian bar, designated by 
 Governor Wise as special prosecutor for the 
 occasion, and destined, by reason of this appoint- 
 ment, to be the most important character in 
 all Virginia for many a day thereafter. Within 
 the counsels' rail, and not far from these legal 
 luminaries, sat a gentleman of the old school, 
 whose calm face, aristocratic bearing, and person- 
 al distinction marked him as a man apart; for 
 Colonel Lewis Washington looked as though he 
 might have stepped out of Trumbull's portrait of 
 his great-uncle George, whose family had fotind- 
 ed Charles Town almost half a century before. 
 
 Probably this distinguished Virginian was one 
 of the very few that old Brown recognized in the 
 blur of faces turned towards him as he tottered 
 into the silent court-room, for the Colonel had 
 been one of the slave -owners kidnapped as 
 hostages just prior to the raid, and he and his 
 captor had held much conversation during their 
 enforced companionship. Indeed, the sword 
 which Brown had " appropriated " for the occa- 
 sion and proudly borne during the siege of the 
 engine-house was Colonel Washington's property 
 and was reputedly one of the President's pres- 
 entation blades. 
 
 76 
 
THE COMMONWEALTH vs. BROWN 
 
 But perhaps the most striking personality of 
 all those projected from the dark human canvas 
 was that of the tall military individual who stood 
 near the bench — a rather pompous and self-im- 
 portant figure of a man, clothed in what ap- 
 peared to be a uniform of some character and 
 bearing an old-fashioned rifle in his clutch. A 
 mass of luxuriant whiskers and a flowing mus- 
 tache covered a large portion of this singular 
 person's countenance, and his long, straight 
 hair, brushed back into a species of double queue, 
 was looped in some curious fashion so that the 
 braided strands encircled his head and joined in 
 a bow-knot in the centre of his forehead. This 
 was no less a personage than Colonel J. Lucius 
 Davis — a noted duellist — a relic of a passing 
 period of Virginian chivalry, and, for the time 
 being, military major-domo and sergeant -at - 
 arms. 
 
 Very little time was wasted in formally ar- 
 raigning the prisoners at the bar. In rough and 
 clumsy fashion Harding, the local prosecutor, 
 opened the proceedings by demanding that the 
 prisoners state whether they were represented 
 by counsel or whether they wished counsel to be 
 assigned them by the court. Every word, tone, 
 and gesture of the coarse little administrator of 
 
 77 
 
DECISIVE BATTLES OF THE LAW 
 
 the law indicated his attitude towards the busi- 
 ness in hand. Quick work and no ceremony was 
 to be the order of the day. This was his hour 
 to swagger in the pubHc eye, and he doubtless 
 argued that the effect would be heightened by a 
 display of official austerity and roughness. 
 Something of this must have been vaguely con- 
 veyed to the gaunt, haggard old man at whom 
 the prosecutor aimed his inquiry, for with a su- 
 preme effort he rose from his chair, his blazing 
 eyes directed not at the bench or at any par- 
 ticular individual, but comprehending the en- 
 tire audience in their sweep. Even in his en- 
 feebled condition he was still a magnificent 
 figvire — ^rough-hewn but Titanic, patriarchal but 
 aggressive — ^his strongly Hebraic features show- 
 ing passion, purpose, courage, and relentlessness 
 in every line. 
 
 "Virginians!" he began, and his low well- 
 modtdated voice reached every comer of the 
 court-room in the deathlike silence: " Virginians! 
 I did not ask for quarter at the time I was taken. 
 I did not ask to have my life spared. ... If you 
 seek my blood you can have it at any moment 
 without this mockery of a trial. I have no 
 counsel. ... If we are to be forced with a mere 
 form — a trial for execution — ^you might spare 
 
 78 
 
THE COMMONWEALTH vs. BROWN 
 
 yourself that trouble. I am ready for my fate. 
 ... I beg for no insult — ^nothing but that which 
 conscience gives or cowardice drives you to 
 practise. I ask again to be excused the mock- 
 ery of a trial. I do not even know what the 
 special design of this examination is. I do not 
 know what is to be the benefit of it to the Com- 
 monwealth. I have now little further to ask, 
 other than that I may not be foolishly insulted." 
 
 The speaker swayed and sank into his chair 
 again, but every word of his brief utterance was 
 aimed at the pride of Virginia, and it found its 
 mark. It was the courageous defiance of a man 
 at bay, ready for death, but supremely conscious 
 of his own dignity; and, for the instant, some- 
 thing akin to respect for the old fanatic kindled 
 in the minds of his auditors. Indeed, if there 
 had been, up to that moment, any thought of 
 satisfying the public conscience with the form 
 instead of the substance of a trial, that dramatic 
 challenge disposed of it on the instant, and 
 before the wondering whispers of the audience 
 ceased Brown had, by sheer force of his per- 
 sonality, accomplished for himself what no 
 lawyer could have secured him — ^namely, a fair 
 field, if no favor. 
 
 With this effective prelude the formalities 
 
 79 
 
DECISIVE BATTLES OF THE LAW 
 
 before the committing magistrates were im- 
 mediately inaugurated and speedily concluded. 
 Messrs. Lawson Botts and Charles J. Faulkner, 
 of the local bar, were assigned as counsel for the 
 accused, a perfunctory examination of witnesses 
 was conducted by Harding, and the prisoners 
 promptly held for the action of the Grand Jury, 
 which, being already in session, quickly returned 
 indictnients for treason, inciting slaves to rebel- 
 lion, and for murder, each offence being punish- 
 able with death. Indeed, there was scarcely a 
 creak in the carefully oiled machinery of the 
 law, and within twenty-four hours of his first 
 arraignment John Brown was called to face a 
 jury of his peers. 
 
 Before another day had passed, however, 
 the prosecution was to learn that there was 
 something more important at stake than a 
 speedy conviction, and every day the proceed- 
 ings lasted was to drive this lesson home. But 
 the public, believing that the first day of the 
 trial would be the last, determined not to miss 
 what might be its only chance for viewing the 
 criminal at close range, and the crowd massed in 
 front of the jail on the second court day was even 
 greater than that which witnessed the prisoner's 
 first appearance. 
 
 80 
 
THE COMMONWEALTH vs. BROWN 
 
 Again the crude and dirty court-room was 
 crowded to its utmost capacity, and even the 
 windows choked with lowering humanity ; but in 
 some particulars the aspect of the place had tin- 
 dergone a transformation since the prisoner first 
 passed its threshold. 
 
 Behind the judicial desk sat Richard Parker, 
 a jurist of experience and ability, the third of his 
 name to occupy the bench. Short, almost 
 diminutive of stature, his was still a command- 
 ing presence — ^his face stem, but with clear-cut 
 features bespeaking covirage, conviction, and 
 strong, forceful character. In age, physique, 
 and mentality Judge Parker was in his prime, 
 and although he was by tradition, birth, and 
 training strongly in sympathy with the thought 
 and principles of his State, no fairer presiding 
 officer could have been selected within the limits 
 of Virginia. 
 
 Among the densely massed spectators sat 
 James Mason, United States Senator from Vir- 
 ginia and author of the Fugitive-Slave Law, 
 a fierce, eager, passionate partisan of the South, 
 who had flown to Harper's Ferry at the earliest 
 possible moment and hungrily cross-examined 
 Brown, as he lay weltering in his blood, hoping 
 to secure incriminating evidence against some 
 
 8i 
 
DECISIVE BATTLES OF THE LAW 
 
 of the Black Republicans, and this was un- 
 doubtedly the explanation of his presence in the 
 court-room. 
 
 Over the counsels' table leaned Lawson Botts,* 
 the prisoner's thin, active, wiry lawyer, who sat 
 waiting the arrival of his client, his legs coiled 
 around the legs of his chair, and his body bent 
 forward in a characteristic posture as though 
 poised for a spring ; and by his side sat the Mayor 
 of Charles Town, Thomas Green," the successor 
 of Mr. Faulkner, who had declined the ungrate- 
 ful task of defending a man whom he had per- 
 sonally attempted to kill or capture at Harper's 
 Ferry. The new counsel for the prisoner was a 
 long, angular, uncouth limb of the law of sin- 
 gular appearance and no little oddity of manner, 
 but a man of considerable ability, who was to 
 prove before many hours had passed that he 
 
 • Lawson Botts, who was thirty-six years old at the time of 
 Brown's trial, was a grandson of Benjamin Botts, who de- 
 fended Aaron Burr. He entered the Confederate army as a 
 captain and immediately distinguished himself in the field, 
 being promoted to the rank of colonel for conspicuous gallantry. 
 He was mortally wounded at the second battle of Manassas, 
 August 28, 1862. 
 
 ' Thomas C. Green served in the Confederate army as a private 
 under Major Botts during the Civil War and saw hard service. 
 He was appointed to the bench in 1875, serving in the Supreme 
 Court of Appeals (West Virginia) with great distinction until 
 his death in 1889. He was in his thirty-ninth year at the time 
 of Brown's trial. 
 
 82 
 
THE COMMONWEALTH vs. BROWN 
 
 possessed a quick wit and such a flow of language 
 that he seemed to speak " whole sentences abreast 
 of each other" in the rush and tumble of his 
 words. 
 
 Harding, the local functionary, had already 
 yielded precedence to Andrew Hunter, the special 
 prosecutor, and with a few spasmodic efforts to 
 assert his authority, he gradually lapsed into the 
 backgroimd, against which he was occasionally 
 discerned sleeping off his potations, totally ob- 
 Hvious to his suiToundings. 
 
 A rough cot had been placed on the floor 
 within the counsels' railing and almost directly 
 before the bench, for the previous day's ex- 
 perience had proved too much for the woimded 
 prisoner and he could no longer even stand with- 
 out assistance. Immediately upon his entrance 
 he made a brief appeal for a postponement of 
 the trial on account of his physical weakness, 
 but it was disregarded, and two men lifted him 
 to his feet and supported him while the lengthy 
 indictment was read and his plea of "not 
 gtdlty " entered, whereupon he immediately sank 
 upon his couch, drew a blanket about him, 
 closed his eyes, and rarely opened them again 
 during the day's proceedings. 
 
 Left to themselves in this fashion, the lawyers 
 » 83 
 
DECISIVE BATTLES OF THE LAW 
 
 for the defence faced a task of unparalleled dif- 
 ficulty, presenting an opportunity for fame un- 
 equalled in the history of the law, but requiring 
 a man as great as the occasion. Probably no 
 member of the Virginian bar and possibly no 
 advocate anywhere in the country could have 
 risen to the emergency, and it would have been 
 unreasonable, under the circumstances,to expect 
 the two Virginians charged with the defence to 
 imperil themselves in such a cause. Both men 
 undoubtedly loathed Brown and all his works, 
 but even if they had doubted his guilt under the 
 law, his policy of bold admission and his utter 
 indifference to the result would have chilled 
 the finest enthusiasm. Each of them made 
 earnest pleas for a postponement of the trial 
 before a jury was impanelled, urging their client's 
 condition and their absolute lack of all oppor- 
 tunity for examining the indictment or other- 
 wise preparing for the defence; but Mr. Hunter 
 stoutly objected to any delay, dwelling upon 
 the need of swift justice to demonstrate the effi- 
 ciency of the law, and Harding appealed to the 
 worst fears of the community by vague reference 
 to impending rescues and negro insurrections. 
 Finally the judge called the prison doctor to the 
 stand, wha- cheerfully testified that the ap- 
 
 84 
 
THE COMMONWEALTH vs. BROWN 
 
 parently unconscious man at his feet was in a 
 fit condition to fight for his life, whereupon the 
 request for delay was denied and the impanelling 
 of a jury promptly directed. 
 
 Had the talesmen been strictly examined and 
 challenged it is extremely doubtful if one wholly 
 unprejudiced juror could have been secured in 
 the entire county, but it is probable that the 
 men who were finally sworn into the jury-box 
 were as well qualified as any other Virginians. 
 Some of them were slave-holders, but not all, 
 and as, under the practice, twenty-four were 
 originally selected, of which the defence had the 
 right to strike out eight and select twelve by 
 lot, the prisoner was fairly protected by the 
 statutes. Any attorney who had insisted upon 
 more than the letter of the law on such an 
 occasion would have been overruled and his 
 protests would have served no useful purpose. 
 Even as it was, a competent jury was not ob- 
 tained until nightfall, and the prosecution did 
 not fairly open until the following day. 
 
 As soon as the court resumed business the 
 next morning Mr. Botts arose on behalf of 
 his client with the announcement that he had 
 received information by telegraph that there 
 was insanity in Brown's family. He desired 
 
 8s 
 
DECISIVE BATTLES OP THE LAW 
 
 time, he declared, to investigate the seeming- 
 ly well - supported statement of the prisoner's 
 mental incapacity; but in the midst of his ear- 
 nest plea for an adjournment he was interrupt- 
 ed in the most unexpected manner, for with a 
 supreme effort the prisoner struggled up from 
 his pallet and demanded a hearing from the 
 court. 
 
 The old man's face was drawn and haggard 
 with suffering, but his eyes blazed with excite- 
 ment as he raised himself to a sitting posture, 
 and supporting his body with his long, muscular 
 arms, gazed intently at the bench. Then, in a 
 voice shaken with emotion, but with every 
 mental faculty evidently on the alert, he re- 
 pudiated his lawyer's plea, explaining with 
 convincing clearness that there was no insanity 
 in his father's family, although, as his counsel 
 had stated, some of his mother's family, his first 
 wife, and some of her children had been men- 
 tally afflicted, and this short explanation ended 
 with a scornful refusal to countenance any sub- 
 terfuge in his behalf. 
 
 A muitnur of astonishment burst from the 
 dense audience as the speaker concluded, and 
 drawing his blanket closely arotind him, again 
 sank into a recimibent position. What was 
 
 86 
 
THE COMMONWEALTH vs. BROWN 
 
 the meaning of this performance? Everybody 
 had supposed that the old scoundrel was " play- 
 ing possum" to waste time, but here was a 
 chance to drag matters along indefinitely and 
 he refused to take it! What sort of a game was 
 he up to, anyway ? 
 
 But the game which the wounded fanatic had 
 in mind was altogether beyond the compre- 
 hension of the questioners, and they little dream- 
 ed that this was the one agonizingly crucial 
 moment of the whole trial to him; for between 
 the wild nightmare of the Harper's Ferry raid 
 and the dawn of his arraignment, John Brown 
 had dreamed a strange and wonderful dream, 
 and the dream was proving true. 
 
 He was no longer an avenging fury, but a 
 pawn in a mighty contest projected in his men- 
 tal vision, and his the opening move. Would 
 his foes refuse his lead or would they accept it 
 and sweep him from the board ? On one hand 
 the ignominious madhouse yawned — on the 
 other the glorious gallows. Futile commisera- 
 tion and contempt or inspiring martyrdom was 
 to be his portion, and the issue hung on a thread 
 during the breathless hush that followed his 
 surprising outbtirst. Not his fate alone trem- 
 bled in the balance. Virginia, straining every 
 
 87 
 
DECISIVE BATTLES OF THE LAW 
 
 nerve to make an example of him, had it in her 
 power to punish him as no culprit had ever 
 been punished before. Would she seize her 
 opportunity? No wonder beads of perspira- 
 tion moistened the prisoner's forehead as he 
 lay huddled under his crumpled blanket. 
 
 In the hush of expectation Mr. Green rose to 
 confess his embarrassment in urging a defence 
 which had been openly repudiated by his client, 
 yet he felt that the existing circumstances de- 
 manded investigation, and with some vigor he 
 proclaimed his views upon the point. Mr. 
 Hunter was, however, of a different opinion, 
 and with extreme professional courtesy and 
 considerable prolixity, the question was bat- 
 tledored and shuttlecocked between him and 
 his opponents. Finally His Honor interfered 
 by observing that there was no legal ques- 
 tion before the court in the absence of sworn 
 statements supporting the defence of insan- 
 ity, and the trial must therefore proceed forth- 
 with. 
 
 What a sensation of relief that momentous 
 decision must have afforded the anxious de- 
 fendant as he lay extended on his prison cot! 
 All danger of being ignobly relegated to a mad- 
 house was over, and the burning eyes that 
 
 88 
 
THE COMMONWEALTH vs. BROWN 
 
 glittered from his coverlet closed in seeming 
 slumber, not to re-open during the, remainder of 
 the day. From that hour it was no longer John 
 Brown but Virginia that stood on trial. 
 
 It was still early in the morning when this 
 crisis passed, and Harding being in a condition 
 to assert his prerogative, made the opening 
 address to the jury. His denunciation of the 
 criminal was followed in due course by a con- 
 servative plea from Messrs. Botts and Green, 
 which Mr. Hunter dtdy tore to pieces in his turn ; 
 by which time the jurors were thoroughly ad- 
 vised of all they had known before they en- 
 tered the jury-box and no more, for the main 
 facts of the Harper's Ferry raid had been fa- 
 miliar to every man, woman, and child in Vir- 
 ginia for days, and the counsel for the prisoner 
 had had no opportunity to devise any compre- 
 hensible theory of defence. 
 
 The speeches finished, Mr. Hunter lost no 
 time in producing witnesses to support his story, 
 and man after man took the stand and swore to 
 the events at Harper's Ferry on the i6th, 17th, 
 and 1 8th of October. One version of the affair 
 was much like another, but the personaHty of 
 each witness was strongly in evidence. Some 
 were scrupulously careful to give nothing but 
 
 89 
 
DECISIVE BATTLES OF THE LAW 
 
 the facts, while others obviously stretched the 
 tnith in their anxiety to damage the defendant. 
 In the main, however, the history of the raid 
 was as clearly recounted then as it has ever been 
 since. 
 
 On the night of October i6, 1859, ^ small 
 party of men under Brown had descended on 
 Harper's Ferry, where they had separated, some 
 seizing the railroad bridge, others taking posses- 
 sion of the United States Arsenal, and still 
 others visiting the plantations of local slave- 
 owners, whose persons and slaves they took into 
 custody. Early the next morning a railroad 
 train had been held up at the bridge, and during 
 an altercation a negro railroad employe had 
 been shot. Shortly after this casualty the 
 town was aroused, the militia was summoned, 
 and desultory firing began between the citizens 
 and isolated detachments of the raiders, during 
 which several persons on both sides were killed 
 or wounded. Finally Brown and a few of his 
 followers had barricaded themselves with their 
 prisoners in the engine-house near the United 
 States Arsenal, where they were surroimded by 
 the citizens and military and cut off from all 
 escape. Again and again during the siege that 
 followed. Brown had attempted to negotiate 
 
 90 
 
THE COMMONWEALTH vs. BROWN 
 
 with Ms assailants, but his flags of truce had been 
 repeatedly disregarded, and the men who bore 
 them either captured or shot, and during the 
 firing Mr. Fontaine Beckham, the Mayor of 
 Harper's Perry, had fallen mortally wounded. 
 
 Finally, some thirty-six hours after Brown 
 had entered the town, a company of United 
 States Marines under Colonel Robert E. Lee and 
 Lieutenant J. E. B. Stuart stormed the engine- 
 house' and either killed or captured the de- 
 fenders. Brown himself being sabred as he stood 
 defenceless just inside the door. Twelve of his 
 men had been killed, including two of his sons, 
 two were wounded, and one escaped; and of the 
 attacking citizens five were dead and nine 
 wounded. 
 
 Such, in outline, was the story of the affair as 
 told by eye-witnesses, and the oral testimony 
 was then supplemented by a copy of the curious 
 "Constitution and Ordinances" which Brown 
 had drawn up for the government of his follow- 
 ers, and for the reconstruction of the United 
 
 ' The capture having been made by United States troops on 
 United States property, the jurisdiction would seem to have 
 been that of the Federal and not the State courts. Indeed, one 
 of the prisoners was indicted in the United States courts, and it 
 would have been a shrewd political move to have thrown the 
 ontis of the whole business on the national authorities. 
 
 91 
 
DECISIVE BATTLES OF THE LAW 
 
 States Constitution " through amendment and 
 repeal." Letters were also introduced from 
 Joshua R. Giddings, the Abolitionist member of 
 Congress from Ohio, for whose head one of the 
 Richmond journals subsequently advertised a 
 reward of ten thousand dollars, and these, with 
 a document called Brown's autobiography and 
 some communications from Gerrit Smith, the 
 Boston Abolitionist, completed the documen- 
 tary evidence; and at the end of two short 
 sessions the prosecution closed its case. 
 
 Before this point had been reached, however, 
 an incident occurred which reawakened all the 
 slumbering fears and suspicions of the com- 
 munity and deepened the intense feeling against 
 the accused. On the third morning of the trial 
 a yotmg man appeared in the court-room who 
 introduced himself as George Henry Hoyt, of 
 Boston, and announced that he had come from 
 Massachusetts to offer his professional services 
 to the defence. Neither Brown nor any one 
 else in Charles Town knew this voltmteer coun- 
 sel, and Messrs. Botts and Green at first de- 
 clined his assistance, though they finally yielded 
 at the request of their client. But Andrew 
 Hunter mistrusted this strange intrusion, and 
 shrewdly suspecting that a mere boy like Hoyt 
 
 92 
 
THE COMMONWEALTH vs. BROWN 
 
 might not be qualified for legal duties, he 
 promptly challenged his right to practise in the 
 courts, and the visitor was utterly unable to 
 substantiate his claim to membership in the 
 bar. At this jtmcture Judge Parker inter- 
 vened, suggesting that formal proof be dis- 
 pensed with, and the stranger, who was only 
 just of age and extremely boyish for his years, 
 was sworn in as associate counsel for the de- 
 fence. 
 
 Hoyt's reception raised a violent storm of 
 protest and indignation in the Northern press, 
 and Brown's biographers have almost universally 
 assailed Hunter for his professional discourtesy 
 and generally overbearing conduct towards the 
 representative of the Massachusetts bar. Had 
 they been informed of that innocent young gen- 
 tleman's real purpose, however, they might 
 have suspended their attacks upon the official 
 prosecutor; and had the latter known, instead 
 of merely suspected, that the legal fledgling was 
 the agent of a rescue party instructed to make 
 drawings of the jail and its defences, it is ex- 
 tremely doubtful if George Henry Hoyt would 
 have ever left the town alive. Nevertheless, it 
 is now well established that the young man's 
 sole mission in Charles Town was to obtain in- 
 
 93 
 
DECISIVE BATTLES OP THE LAW 
 
 formation concerning the feasibility of Brown's 
 rescue, and that, inspired by enthusiasm for the 
 AboUtion cause, he had taken his hfe in his hands 
 and accepted the service, httle dreaming of the 
 responsibihties which his role of counsel was soon 
 to entail upon him. 
 
 It was only a few hours after young Hoyt 
 appeared in Charles Town that the prosecution 
 rested, and it at once became necessary for 
 Brown's lawyers to formulate some sort of a 
 defence. Destitute as they were of material, it 
 would still have been possible for the Virginian 
 counsel to have made a respectable showing on 
 law points had it not been for their client's ex- 
 traordinary notions of the lines upon which the 
 so-called defence should be conducted, and his 
 utter rejection of all plans except his own. 
 
 During his incarceration the old man had pre- 
 pared a list of witnesses, which included most of 
 the slave-holding citizens he had held as hostages, 
 and he directed that these men should be sub- 
 poenaed to testify to his humane treatment of 
 them, and his endeavor to shield them and pre- 
 vent the shedding of blood. No direct or con- 
 vincing proof had been offered to show that he 
 had slain or even injured any one during the 
 fighting, and some of the Commonwealth's wit- 
 
 94 
 
THE COMMONWEALTH vs. BROWN 
 
 nesses had already asserted that his orders were 
 to act Solely on the defensive; but from a legal 
 stand-point the proposed testimony was irrele- 
 vant, if not absurd, and Messrs. Botts and Green 
 protested against such futile tactics. 
 
 But Brown knew what he was attempting to 
 accomplish even if his counsel did not. He 
 cherished no illusions as to the effect of such a 
 defence upon the jury or upon any one in Vir- 
 ginia, but he had determined to place himself 
 upon record before the people of the North and 
 it was to them that his plea was directed. 
 Pursuant to his request, several witnesses were 
 summoned and responded to the call, but the 
 very first questions addressed to them met with 
 strenuous objection from the prosecutor. What 
 difference would it make, he demanded, if a 
 thousand witnesses should testify to the de- 
 fendant's kind attentions to his prisoners or his 
 merciful instructions to his accomplices ? There 
 would be nothing in those facts which the jury 
 could consider. Such testimony was a sheer 
 waste of time. 
 
 Unanswerable as this argument was, the law- 
 yers persisted, and Brown's consideration for 
 his prisoners and his efforts to prevent blood- 
 shed were fairly established. Then, to contrast 
 
 95 
 
DECISIVE BATTLES OF THE LAW 
 
 his conduct with that of his assailants, testimony- 
 was introduced showing the treatment which 
 his truce-bearers had received, and a more re- 
 volting recital of mob violence has never been 
 recorded in a court. With scarcely a tinge of 
 shame or compunction of any sort, Henry Hun- 
 ter, the prosecutor's own son, took the stand 
 and confessed that, enraged by the death of 
 his uncle, Fontaine Beckham, he and another 
 young man had sought out Thompson, one of 
 Brown's men who had been captured bearing a 
 flag of truce, and had attempted to shoot him 
 as he sat bound hand and foot in a room of the 
 Harper's Ferry hotel, and that being foiled in 
 this effort by a young woman who threw her- 
 self upon the prisoner and shielded him with 
 her own body, they had at last dragged him out 
 of the hotel to the railroad bridge, and there 
 despatched him with their revolvers, throwing 
 his body into the river. 
 
 At no other time, perhaps, in the history of 
 the cotmtry would it have been possible for a 
 man to repeat a story of such degraded ferocity 
 in the presence of his father without a blush, 
 and under no other conditions could a father 
 have listened to such a confession without men- 
 tal anguish and horror. Yet such was the 
 
 96 
 
THE COMMONWEALTH vs. BROWN 
 
 state of public feeling regarding the crimes with 
 which Brown was charged that Andrew Hunter, 
 a man of reputation and standing in the com- 
 munity, not only heard this brutal avowal with 
 calmness, but encouraged the witness as he 
 made it and continued his prosecution of the 
 prisoner at the bar with unabated vigor. In- 
 deed, the only man in the court-room who was 
 visibly moved by this shocking recital was the 
 defendant, who shed tears as he listened to the 
 hideous details of his follower's death. 
 
 Despite this and similar testimony, it was not 
 long before the witnesses had told all they had 
 to tell in Brown's favor, and as some of those 
 called did not answer to their names, it was ap- 
 parent that the proceedings must speedily be 
 brought to a conclusion. But the wounded man 
 lying upon the court-house floor was not con- 
 tent to have the curtain fall. He instinctively 
 realized that every hour he could hold the stage 
 was vital to his cause, and although he knew 
 that he had begun to arrest and focus the at- 
 tention of the North he was not yet satisfied 
 with the result. He wanted more time to drive 
 his message home, and he determined to obtain 
 it at any and every cost. 
 
 Witness after witness had been called with- 
 
 97 
 
DECISIVE BATTLES OF THE LAW 
 
 out response, and the lawyers for the defence 
 were keeping up the fight, never dreaming 
 that their client was dissatisfied with their 
 efforts, when the inert man behind them slowly- 
 opened his eyes and rested them for an instant 
 on the earnest, boyish face of young Ho3rt, who 
 was bending over and gently fanning him. 
 Possibly it was the sympathy of that young en- 
 thusiast's face which inspired the old man to 
 immediate action, for, to the intense astonish- 
 ment of the spectators, he suddenly struggled 
 to his feet and burst into a torrent of denuncia- 
 tion and appeal. 
 
 He had been promised a fair trial, but the 
 promise had been broken, he vociferated. The 
 trial was a farce! He had directed witnesses to 
 be subpoenaed and they were not in court. He 
 had no counsel upon whom he could rely, and 
 if he was to have anything deserving the name 
 or resembling the shadow of a fair trial it was 
 essential that the case be adjourned until he 
 should procure counsel who would enforce the 
 attendance of his witnesses. One day should 
 be allowed him as a matter of decency. If not, 
 let the Commonwealth do its worst! 
 
 The moment he had uttered this fierce pro- 
 nouncement, the prisoner regained his usual 
 
 98 
 
THE COMMONWEALTH vs. BROWN 
 
 calmness, and, quietly resuming his former 
 attitude, settled himself comfortably upon his 
 couch without a word to his astonished cotmsel. 
 
 The moment order had been restored in the 
 court-room, Messrs. Botts and Green sprang to 
 their feet indignantly repudiating the reflections 
 which had been cast upon their professional 
 conduct. They had represented the prisoner to 
 the best of their ability, they declared, faith- 
 fully followed his instructions, and performed 
 every duty which law or honor entailed upon 
 them ; but their motives having been impunged, 
 and a want of confidence in them expressed in 
 open court, they had no alternative but to 
 resign and leave the case in charge of the gen- 
 tleman from Massachusetts. 
 
 Utterly unprepared for this catastrophe, 
 young Hoyt rose, his face flushing with excite- 
 ment and embarrassment. He had only just 
 completed his course as a law student, and even 
 if he had had experience in the Massachusetts 
 court-rooms, he was wholly ignorant of Virginian 
 law and practice. The situation was at once 
 painful and dangerous. Knowing the true ex- 
 planation of his presence at the trial, he realized 
 the peril of faiUng to support the role he had 
 assumed, but he had neither the knowledge nor 
 8 99 
 
DECISIVE BATTLES OF THE LAW 
 
 the ability to accept the responsibihty thrown 
 upon him. 
 
 No member of the bar ever faced a more 
 desperate situation than that which confronted 
 this inexperienced stripUng as he met the smiles 
 and derision of the hostile spectators, some of 
 whom would have cheerfully torn him to pieces 
 had they divined his secret. But mere boy as 
 he was, young Hoyt possessed a daring and 
 courage which was destined at no distant day 
 to carry him from the ranks to the command of 
 a regiment on the field of battle, and he rose to 
 the emergency unafraid. 
 
 With earnest simplicity and true dignity he 
 pointed out the embarrassing situation in which 
 he found himself, confessed his complete igno- 
 rance of Virginian law, advised the court that 
 other counsel were momentarily expected, and 
 urged an adjournment until their arrival. Had 
 the judge listened to Harding's vehement ob- 
 jections the defence must have come to an 
 abrupt conclusion then and there; but the re- 
 tiring lawyers, inspired by Hoyt's bold front in 
 the face of such odds, generously seconded his 
 efforts, offering to devote every spare moment 
 to preparing him for his duties if the court would 
 grant a postponement, and Judge Parker finally 
 
 lOO 
 
THE COMMONWEALTH vs. BROWN 
 
 adjourned the trial until the following morn- 
 ing. 
 
 Before the sessions were resumed, however, 
 the defence received strong reinforcements. 
 Through the indirect intervention of Montgom- 
 ery Blair, Mr. Samuel Chilton, of Washington, 
 had been retained to represent Brown's interests, 
 and the services of Mr. Hiram Griswold,* of 
 Cleveland, Ohio, had also been secured by the 
 prisoner's friends in that State, and both of 
 these gentlemen appeared in court when the 
 case was again called for trial. 
 
 Samuel Chilton was a lawyer of unquestionable 
 ability, well and favorably known to the Vir- 
 ginian bar, and related to Justice Parker; but he 
 had tmdertaken the case with great reluctance 
 and his appearance at the eleventh hour placed 
 him at a disadvantage. Mr. Griswold was also 
 an advocate of considerable reputation in his 
 own State, but he was even more handicapped 
 by total lack of preparation than his new as- 
 sociate, for he knew practically nothing of Vir- 
 ginian law, and most of the points which these 
 gentlemen presented were suggested to them by 
 Messrs. Botts and Green. 
 
 • Newspaper and other reports of the trial note the appear- 
 ance of Henry Griswold, but this is an error. 
 
 lOI 
 
DECISIVE BATTLES OF THE LAW 
 
 The presence of his new counsel, however, ac- 
 complished precisely what Brown most desired, 
 for it enabled him to keep the field for another 
 twenty -four hours, and it was not until Novem- 
 ber ist, the sixth day of the trial, that the clos- 
 ing speeches were in order. 
 
 Both Griswold and Chilton addressed the 
 jurors with force and discretion, making no 
 futile appeal to their sympathies, but attempting 
 to create a doubt in their minds as to the defend- 
 ant's guilt under the indictment. Andrew Hun- 
 ter then summed up for the Commonwealth, dis- 
 playing admirable reserve and great ability, 
 and by the early afternoon Judge Parker had 
 charged the jurors with unexceptional fairness 
 and directed them to retire for their verdict. 
 
 During all these proceedings the prisoner nev- 
 er stirred from his couch, but lay with closed 
 eyes, apparently unconscious of the legal bat- 
 tling for his life; and when the jury filed into the 
 room and recorded their verdict of guilty on 
 each of the three indictments, he merely ttimed 
 over on his side and settled himself more com- 
 fortably upon his pillow. 
 
 No sane man in Charles Town had doubted the 
 result from the first, and there was no cause for 
 rejoicing, yet it is to the credit of Virginia that 
 
 I02 
 
THE COMMONWEALTH vs. BROWN 
 
 in the tension of that moment, when the verdict 
 was announced, no demonstration of any kind 
 voiced the poptilar approval. 
 
 Silently and without disorder the crowd passed 
 from the court, massing for a moment before the 
 jail as the condemned man was borne to his 
 cell surrounded by the militia, and then qtiietly 
 dispersing to spread the news that Virginia had 
 written the first word of her answer to all 
 Abolition malefactors, and had written it in 
 blood. 
 
 On the following evening the prisoner was 
 conducted to the court for sentence, and again 
 every square inch inside the building was occu- 
 pied by an expectant throng, half hidden in the 
 big, black shadows of the gas-lit room. 
 
 Already at the counsels' table papers and 
 books had acciunulated in the trial of Brown's 
 followers, and the machinery of the law was 
 once more in motion. The interest of the 
 crowd, immediately centred upon the con- 
 victed prisoner, for it was universally expected 
 that he would attempt an inflammatory ha- 
 rangue in response to the formal questions pre- 
 ceding sentence. No such thought, however, 
 had apparently entered Brown's head, and it is 
 extremely doubtful if he was aware of the pur- 
 
 103 
 
DECISIVE BATTLES OF THE LAW 
 
 pose for which he had been conducted to the 
 court-room. Indeed, when the clerk demanded 
 if he cotdd assign any reason why sentence 
 shotild not be pronounced upon him, he stared 
 at the bench in evident astonishment, and it was 
 some moments before he answered. 
 
 " I have, may it please the court, a few words 
 to say," he began. "In the first place, I deny 
 everything but what I have all along admitted 
 — ^the design on my part to free the slaves. . . . 
 That was all I intended. . . . Now, if it is neces- 
 sary that I forfeit my life for the furtherance of 
 the ends of justice, and mingle my blood with 
 the blood of millions in this slave country whose 
 rights are disregarded by wicked, cruel, and 
 unjust enactments, I submit. Let it be done. 
 Let me say one word further. I feel entirely 
 satisfied with the treatment I have received on 
 my trial. Considering all the circumstances it 
 has been more generous than I expected. But 
 I feel no consciousness of guilt. I have stated 
 from the first what was my intention and what 
 was not. . . . Now I have done." 
 
 In the hush that followed this quiet, simple 
 utterance, John Brown was sentenced to be 
 hanged on December 2d, and a few moments 
 later he was smuggled out of the building, not 
 
 104 
 
THE COMMONWEALTH vs. BROWN 
 
 a man in the audience being permitted to stir 
 vintil he had been safely returned to his cell with- 
 out the assistance of the militia, whose services 
 Judge Parker had haughtily declined, holding 
 that soldiers had no business in a court of law. 
 
 It was not long, however, before the civil 
 aspects of that hall of justice utterly disappear- 
 ed, for within a month the military authorities 
 took complete possession of every public build- 
 ing for the housing of the thousands of troops 
 assembled in Charles Town. Indeed, on the 
 evening of December ist, two "companies of 
 militia were quartered in the court-room itself, 
 guns stacked outside the counsels' raiHng, 
 knapsacks and canteens piled upon the bench; 
 belts, cartridge-boxes, and accoutrements of all 
 kinds lying on the counsels' table; and among 
 the men who slept upon their blankets on the 
 floor and benches of the dismantled court-room 
 was John Wilkes Booth, a private in Company 
 F of the Jefferson Guards. 
 
 All this display of force was designed to strike 
 terror to the hearts of the AboUtionists, and 
 prevent the rescue of a man whose only fear was 
 that he might not be allowed to die upon the 
 gallows, whose worst enemies were the friends 
 who plotted and petitioned in his behalf, whose 
 
DECISIVE BATTLES OF THE LAW 
 
 only danger was that some inspired statesman 
 in Virginia would divine the danger of his 
 martyrdom and devise the means of reopening 
 the question of his sanity; and whose supreme 
 moment was when he stood upon the scaffold, 
 while the armed hosts of Virginia marched and 
 countermarched, deployed, skirmished, and 
 manoeuvred in battle array to insure the ful- 
 filment of his heart's desire. No wonder he 
 stood steady as a soldier on parade, while the 
 muskets rattled and the ground shook beneath 
 the tramping feet. 
 
IV 
 
 DRED SCOTT VS. SANFORD: 
 THE UNCOVERING OF AN HISTORIC TRIAL 
 
 No legal controversy in the United States has equalled 
 the Dred Scott case in point of historic interest, and yet, 
 strangely enough, its origin has remained more or less a 
 mystery. As early as 1858 the charge was made that it 
 was a political conspiracy to obtain a decision favorable 
 to the slave power by means of a trumped-up case prose- 
 cuted in bad faith and insincerely defended. This sinister 
 accusation was promptly and authoritatively refuted at the 
 time, but the ugly rumors and suspicions upon which it 
 was based have persisted, in one form or another, to this 
 day. 
 
 The mxjre popular view of the litigation, however, pre- 
 sents it as the heroic struggle of an abused slave against a 
 cruel master, and the historians have either adopted this 
 romantic treatment or made no attempt to solve the secret 
 of its origin. 
 
 Meanwhile, though half a century has elapsed, the ques- 
 tions as to how the case started, who the plaintiff and 
 defendant really, were, what forces were behind them, and 
 what their motives were, have remained uninvestigated, 
 and the complete story of this famous lawsuit, largely 
 
 107 
 
DECISIVE BATTLES OF THE LAW 
 
 based upon documentary evidence, is here for the first 
 time recorded. 
 
 IN 1787 Mr. Nathan Dane, a Representative 
 •^ from Massachusetts, introduced an Ordinance 
 in Congress excluding slavery from the territory 
 northwest of the Ohio, including the present 
 States of Ohio, Indiana, Illinois, Michigan, and 
 Wisconsin, and the measure was almost unani- 
 mously carried, the only vote against it being cast 
 by a member from New York. This peaceful 
 legislation, however, was fated to be the first 
 and last evidence of harmony on the question of 
 slavery. Indeed, the fierce struggle which men- 
 aced the existence of the nation for wellnigh 
 eighty years thereafter may fairly be ascribed 
 to its enactment, for the law had no sooner been 
 placed upon the statute-books than its suspen- 
 sion was vigorously, but vainly, demanded by 
 powerful factions tmder the leadership of the 
 young Territorial Governor, William Henry Har- 
 rison, and it was mainly under cover of this 
 constant skirmishing that the lines of battle 
 were formed in 1820 to decide another issue, 
 much more vital to the South, namely, whether 
 Missouri should be admitted to the Union as a 
 free or a slave State. 
 
 108 
 
DRED SCOTT vs. SANFORD 
 
 By this time, however, the opposing hosts 
 were so evenly matched that neither could drive 
 the other from the field, and a deadlock result- 
 ing, the advocates of slavery resolved to en- 
 compass their end by diplomacy, for, in their 
 opinion, political control of Missouri had become 
 essential to their safety, and their fears were 
 not unfounded. With five or more free States 
 guaranteed by the Ordinance, and with abovmd- 
 ing evidence of increasing population and pros- 
 perity in the North, it was obvious that the 
 days of the South's supremacy in the national 
 cotincils were numbered, unless the area of sla- 
 very could be enlarged, and of this imperious 
 necessity came the Missouri Compromise, yield- 
 ing the new State to slavery, but dedicating all 
 the region north of it to freedom. 
 
 Neither side ftdly understood the terms of 
 peace. To the slave-owners they meant an in- 
 creased majority in the House and Senate, 
 cheaply purchased by the concession of territory 
 apparently unsuited to slavery. To the Free- 
 staters they vindicated a principle, and pre- 
 sented at least a moral barrier to the further 
 aggressions of their opponents. It was not 
 long, however, before explorers and travellers 
 revealed the true nature of the territory conse- 
 
 109 
 
DECISIVE BATTLES OF THE LAW 
 
 crated to freedom, and realizing that new free 
 States would soon be formed in the fertile 
 region they had unwittingly yielded, the rep- 
 resentatives of the slave power resolved to 
 offset this danger by extending their dominion 
 to the south. Of this came the Creek and 
 Seminole wars, the admission of Florida, the 
 American colonization of Texas and its declara- 
 tion of independence, the resulting war with 
 Mexico, the cession and forced sale of a vast 
 domain from the vanquished enemy, and the 
 annexation of Texas, with the significant pro- 
 vision that four States might be carved out of 
 its generous area. 
 
 It was impossible for the opponents of slavery 
 to control this course of events. Military vic- 
 tories and patriotic pride in the extension of 
 the national boundaries at the expense of a 
 foreign foe obscured the real issue. Certainly 
 the eagerness with which the Free-staters ac- 
 cepted the sop, that slavery should be excluded 
 from aU the annexed region lying north of 
 the Missouri Compromise Hne, is proof of their 
 helplessness, for every acre of it lay south of 
 that parallel, and the only value of this farcical 
 concession was its tacit confirmation of the 
 Missouri Compromise. 
 
 no 
 
DRED SCOTT vs. SANFORD 
 
 The full disadvantage of that political bar- 
 gain, however, did not dawn upon the advocates 
 of slavery until they discovered that even the 
 vast territory wrested from Mexico would not 
 long suffice to maintain them in power. Every 
 State which was admitted from the Northwest 
 meant two votes against slavery in the Senate 
 and decreasing power for its advocates in the 
 House, and the admission of several such States 
 was imminent. Unless, therefore, the Missouri 
 Compromise could be set aside, it was only a 
 question of time when the South would be 
 ousted from power, for there was no further 
 chance of extending the national borders; and 
 realizing that they were again in danger of be- 
 ing surrounded, the proslavery men fought 
 with skill and desperation to pierce their op- 
 ponents' enfolding line. From such leaders as 
 Reverdy Johnson and Alexander H. Stephens 
 came assertions that if the North had deter- 
 mined to debar slavery from all the new terri- 
 tories, the South could no longer remain in the 
 Union, although they admitted the legal right 
 of the majority in Congress to enact the neces- 
 sary legislation and despaired of any appeal to 
 the courts. Both these gentlemen were to 
 change their opinions on the legal aspect of 
 
DECISIVE BATTLES OF THE LAW 
 
 the situation before many years had passed; 
 but meanwhile a convention of States discuss- 
 ing secession at Nashville, Tennessee, and other 
 significant events, lent so menacing an emphasis 
 to their declaration, that even such a stanch 
 opponent as Webster weakened in his resistance 
 to the aggressions of slavery; and the com- 
 promises of 1850, involving the admission of 
 California as a free State, the Territorial organi- 
 zation of Utah and New Mexico without the 
 Wilmot Proviso interdicting slavery, the aboli- 
 tion of the slave-trade in the District of Colum- 
 bia, and the passage of the most drastic fugitive- 
 slave law ever placed on the statute-books were 
 effected. 
 
 Encouraged by this success and the election 
 of their Presidential candidate, the slavery 
 advocates pressed their advantage, and, mass- 
 ing their forces on the 25th of May, 1854, they 
 penetrated the ranks of their disorganized op- 
 ponents, and compelled the surrender of the 
 Missouri Compromise. In the first flush of this 
 stupendous trivimph the cause of the victors 
 seemed assured, for the repeal of the famous 
 legislation opened the Northwest to slavery 
 and practically nationalized their favorite in- 
 stitution. It was only for a moment, how- 
 
 112 
 
DRED SCOTT vs. SANFORD 
 
 ever, that they were permitted to indulge this 
 dream of security, for the North greeted the 
 repeal with a roar of indignation, and at the 
 close of the fall elections in 1854 a new danger 
 confronted the dominant party and threatened 
 to turn its victory into defeat. When the 
 repeal was effected the Democrats had a ma- 
 jority of eighty-four in the House of Repre- 
 sentatives, but the next election not only wiped 
 out this comfortable margin, but left them in 
 a minority of seventy-five. Concerted action 
 on the part of their opponents meant nothing 
 less, therefore, than the restoration of the 
 Missoitri Compromise, and as long as this was 
 even a possibility there was, to their thinking, 
 no safety for the South. The situation was 
 certainly perilous, for though their enemies were 
 divided, the North was aroused as it had never 
 been before, public opinion was rapidly crys- 
 talUzing, and the shrewd slavery campaigners 
 realized that the advent of a leader would 
 speedily organize the opposition and discipline 
 it into an effective army. To forestall this con- 
 tingency desperate efforts were made to acquire 
 Cuba by hook or by crook and create more slave 
 States out of that island, but all hope of secur- 
 ing such reinforcements was soon frustrated. 
 
 113 
 
DECISIVE BATTLES OF THE LAW 
 
 There was yet time, however, to steal a 
 march on the antislavery forces and deliver a 
 blow that wotild neutralize their efforts should 
 they subsequently unite, and as the wily chiefs 
 of the Democracy were casting about for a 
 feasible plan of action, a strange chance afford- 
 ed the very opportunity they were seeking. 
 
 Years before this crisis was reached, far 
 from the scene of conflict and scarcely within 
 sound of its angry clamors, a little domestic 
 drama had been unfolding which was destined 
 to prove historic. In 1834 there arrived at 
 Rock Island, a military post in Illinois, an 
 army surgeon by the name of John Emerson, 
 who brought with him from Missouri a negro 
 about twenty-four years of age, called Dred 
 Scott, bom in Virginia, and formerly the prop- 
 erty of Peter Blow, a distinguished citizen of 
 that State. Dr. Emerson was subsequently 
 transferred to Fort Snelling, in that part of 
 Wisconsin Territory which later became Minne- 
 sota, and while there Dred Scott, with the con- 
 sent of his master, married a negress known as 
 Harriet, whom the surgeon had purchased from 
 a certain Major Taliaferro. Of this marriage 
 there were two children, Eliza, bom on a Mis- 
 
 114 
 
DRED SCOTT vs. SANFORD 
 
 sissippi steamboat north of Missouri, and Lizzie, 
 bom at Jefferson Barracks, a United States 
 army post in Missouri, and when Dr. Emerson 
 returned to his home in St. Louis in 1838 he 
 brought Scott and his family with him. Six 
 years later the doctor died in Davenport, 
 Iowa, leaving a will which was probated in 
 that State, appointing his brother-in-law, John 
 F. A. Sanford,' one of his executors, and 
 leaving his property to his wife in trust for 
 his daughter. 
 
 Dred Scott was about thirty-four years of 
 age when Dr. Emerson died, and there is evi- 
 dence that for a time he was kept at army 
 posts, but in less than two years he and his 
 family were returned to St. Louis, and Mrs. 
 Emerson found herself confronted by an em- 
 barrassing situation. She did not want to own 
 the slaves, and yet she could not sell them, 
 for people of good standing did not market 
 their negroes except as a punishment for grave 
 offences, and her right to emancipate them was 
 very questionable under the terms of her hus- 
 
 * This name is incorrectly spelled "Sandford" in the U. S. 
 Supreme Court Reports and other official documents. The 
 writer has examined the original records of the Probate Coiuls in 
 Davenport and St. Louis, but none of the papers makes direct 
 reference to any slaves owned by Dr. Emerson. 
 9 IIS 
 
DECISIVE BATTLES OF THE LAW 
 
 band's will — all the property of the estate hav- 
 ing been expressly left in trust. Possibly some 
 solution of the difficulty might have been found, 
 but there is no evidence that Mrs. Emerson 
 attempted any, and within a short time she 
 removed from Missouri to Massachusetts, 
 abandoning Dred Scott to his own devices. 
 Had he been a competent workman Scott 
 might have employed his practical freedom 
 to good advantage, but he was apparently 
 a shiftless, incapable specimen of his race, 
 and it was not long before he and his family 
 became charges on the bounty of Taylor 
 Blow, a son of his old-time master and the 
 playmate of his childhood in Virginia. It 
 may well be imagined that this situation was 
 not pleasing to Mr. Blow, for the Scotts were 
 not free, and supporting them was virtual- 
 ly taking care of somebody else's property 
 — a thankless and ungrateful task. If they 
 could be emancipated there might be some 
 satisfaction in protecting them, but encourag- 
 ing slaves to obtain their freedom was a very 
 delicate matter, and it is not surprising that 
 there is no direct proof that Blow brought Scott 
 to the attention of Field & Hall, a well-known 
 legal firm in St. Lotiis, though there is little 
 
 ii6 
 
DRED SCOTT vs. SANFORD 
 
 doubt that he did so with the idea of discover- 
 ing some legal solution of the difficulty. Messrs. 
 Field & Hall were only too willing to come to 
 the rescue, for with all the facts before them 
 they immediately saw an unusual opportunity 
 to test the law on slavery — and another oppor- 
 tunity which was not to be neglected. Here 
 was a slave who had not only been brought by 
 his owner into Illinois, doubly protected against 
 slavery by the Ordinance of 1787 and its own 
 constitution, but also into a territory where 
 slavery was illegal under the Missouri Com- 
 promise and other Congressional legislation. 
 Moreover, his marriage had been contracted on 
 free soil and at least one of his children bom 
 beyond the jurisdiction of slavery. A better 
 case for presenting the claim that the removal 
 of slaves into free territory effected their eman- 
 cipation could not well be imagined. 
 
 There is little likelihood, however, that it 
 was this nice point of law or any humanitarian 
 impulses that actuated the attorneys. Indeed, 
 there is every indication that their motives were 
 an3rthing but disinterested, for the papers show 
 that their main object was to pave the way for 
 a suit against the Emerson estate for the twelve 
 years' wages to which Scott would be entitled 
 
 117 
 
DECISIVE BATTLES OF THE LAW 
 
 should the courts declare that he had been 
 illegally held as a slave since 1834. Had it not 
 been for this ulterior design it is highly im- 
 probable that the suit would ever have been 
 defended. 
 
 Scott himself probably understood little or 
 nothing about the matter, for he was wholly 
 illiterate, and there is no evidence that he took 
 any particular interest in it. During the fall 
 of 1846, however, he signed his cross to a peti- 
 tion' beginning a suit for his freedom by claim- 
 ing damages for technical false imprisonment 
 and assault and battery against his mistress, 
 Irene Emerson, and it was this action, tindoubt- 
 edly instigated by attorneys with mercenary 
 motives, that led the way to a cause celehre, 
 destined to make history, and to prove one of 
 the provocations of the Civil War. 
 
 Despite the ideal facts supporting their con- 
 tentions, Messrs. Field & Hall soon met with 
 
 ' The writer's investigations have disclosed the fact that the 
 original papers in this action have been removed from the court 
 files. Diligent effort is now being made to recover them, but 
 at this writing they have not been secured. The clerk's docket, 
 however, and other records (including a second suit begun in 
 1847 against Dr. Emerson's heirs and subsequently abandoned), 
 fairly demonstrate that the attorneys and the proceedings were 
 as above stated. An action was also begun for Scott's wife, 
 and' damages to a considerable amount claimed for her and 
 for the children. 
 
 118 
 
DRED SCOTT vs. SANFORD 
 
 a reverse, for at the April (1847) term of the 
 Circuit Court the presiding judge instructed the 
 jury to bring in a verdict for the defendant, but 
 a new trial was subsequently granted by an- 
 other Circuit Judge, Alexander Hamilton by 
 name, and in the second trial a verdict was 
 recorded in favor of Scott.' This result was 
 not attained, however, until January, 1850, 
 over three years after the litigation started, and 
 the end was not even then in sight, for the 
 Emerson estate immediately appealed to the 
 Supreme Court of Missouri, and there the mat- 
 ter rested for over two years more. Scott's 
 attorneys, however, could afford to take their 
 time, for during all this period their client had 
 been in the hands of the sheriff, that official 
 having been ordered by the court to hire him 
 out during the pendency of the action and 
 accotmt for his wages to the successful party 
 on its determination, so his earnings were safely 
 secured and there was no reason for haste. 
 The costs, moreover, were guaranteed to the 
 owner, in case she succeeded, by a bond which 
 shows that Taylor Blow was behind the case, for 
 the surety was his son-in-law, Joseph Charless. 
 
 ' Unsuccessful appeals were taken by the defendant from this 
 order. See 11 Mo. Reps., 413. 
 
 119 
 
DECISIVE BATTLES OF THE LAW 
 
 It was March, 1852, six years after the action 
 started and two years before the Missouri Com- 
 promise was repealed, that the Supreme Court 
 took up the case of " Scott (a man of color) vs. 
 Emerson," and a more unpropitious moment 
 for the negro and his interested advisers cannot 
 be imagined. Sectional disputes over the sla- 
 very question were raging fiercely throughout the 
 country, but nowhere more bitterly than in 
 Missouri, and the brief submitted by Lyman 
 Decatur Norris, of the firm of Garland & 
 Norris, for the defence, well reflects the spirit 
 of the times. Slavery agitation he denounced 
 " as a species of Black Vomit that ever has and 
 will, we hope, continue to carry unfledged states- 
 men and higher-law demagogues to the grave of 
 political oblivion !" and these gusty periods, 
 interspersed with poetical quotations, so im- 
 pressed the official reporter that he paid the 
 writer the unusual compliment of printing his 
 effusion in full. Nevertheless, the doctmient 
 was not without legal authority, and its review 
 of the existing precedents demonstrated that 
 although Lord Mansfield's celebrated doctrine 
 in the Somersett case had been generally ac- 
 cepted, to the effect that a slave who once set 
 foot on free soil became emancipated, the status 
 
 120 
 
DRED SCOTT vs. SANFORD 
 
 of such a freedman on his return to a slave 
 country was still an open question in the United 
 States. 
 
 The Supreme Court of Missouri, however, was 
 in no mood to discuss nice questions of law, 
 and by a vote of two to one it ruled against the 
 plaintiff, Judge Scott remanding his namesake 
 to slavery in an opinion more notable as a 
 political tract than as a judicial utterance, and 
 Judge Gamble dissenting in a similar spirit, 
 both jurists displaying more temper than eru- 
 dition.' 
 
 With this angry clash between the highest 
 judges in the State, Scott's case in the local 
 courts ended, and under ordinary circumstances 
 it would never have been heard of again, for it 
 had no national significance whatsoever, and 
 the only foundation of the vague stories which 
 have ascribed its origin to the deep-laid schemes 
 of slavery pohticians is the fact that it was 
 supported and kept in the courts for eight years 
 by Taylor Blow, a pronounced s3iinpathizer with 
 the South. 
 
 But at this junctvire, however, politics or 
 
 ' See IS Mo. Reps., 557-559, which records plaintiiGE's counsel as 
 D. B. Hill. This is evidently a misprint for D. N. Hall, junior 
 partner of Field & Hall. 
 
 J3I 
 
DECISIVE BATTLES OP THE LAW 
 
 patriotism intervened, for one Chauvette E. 
 La Beatime,* a lawyer related by marriage to 
 Taylor Blow, approached Roswell M. Field,^ 
 one of the best-known lawyers in St. Louis, 
 in regard to the case, advising him that Mrs. 
 Emerson had in 1850 married Dr. Calvin C. 
 Chaffee, a physician of Springfield, Massachu- 
 setts and a member of Congress from that 
 State. It was therefore possible to describe 
 her as a resident of Massachusetts and allege 
 that Scott was a citizen of Missouri, thus creat- 
 ing an issue between citizens of different States, 
 which wovild carry the case into the Federal 
 courts, and the new attorney recommended 
 this course. To have his wife appear as a 
 slave-owner, opposing a negro's claim to free- 
 dom, would, however, have been extremely 
 embarrassing to the Massachusetts doctor, who 
 was personally and politically opposed to sla- 
 very, and there is every indication that, to a,void 
 this, the nominal ownership of Scott and his 
 family was transferred to Mrs. Chaffee's brother, 
 
 '■ Hitherto unpublished autograph letter from Field to Mont- 
 gomery Blair, in possession of the writer through courtesy of the 
 present Mr. Montgomery Blair. Le Beaume undoubtedly acted 
 for Blow, who endeavored to conceal his interest in the case until 
 it reached the Federal courts. 
 
 ' No relation of the A. P. Field, of Field & Hall, the original 
 attorneys. 
 
 122 
 
DRED SCOTT vs. SANFORD 
 
 John F. A, Sanford, a resident of New York, 
 This move left the legal situation unchanged, 
 and in November, 1853, six months before the 
 repeal of the Missouri Compromise, Field insti- 
 tuted a new action for Scott in the United States 
 Circuit Court for the District of Missouri.* 
 
 The preliminary moves in this momentous 
 litigation were quickly and quietly taken, and 
 only a few weeks before the Missouri Compro- 
 mise was set aside, a jury, under the instructions 
 of the local Federal judge, rendered a verdict 
 declaring Scott and his family the lawful prop- 
 erty of the defendant, and Mr. Field immedi- 
 ately appealed to the Supreme Court at Wash- 
 ington.* 
 
 Up to this point there is no evidence that 
 any political part)'^ was behind the suit, but not 
 long after Mr. Field filed his appeal the anxious 
 leaders of the South, alarmed by the clamor of 
 
 ' This action, No. 692 Circuit Court of the United States, Dis- 
 trict of Missouri, was brought November 2, 1853, for Scott, his 
 wife, and children, $9000 damages being claimed in the com- 
 plaint. The assatdt and imprisonment charged in the document 
 were nominal rather than real, and the story that Scott was 
 cruelly beaten by his master has no foundation. Taylor Blow 
 openly became Scott's bondsman. Araba N. Crane, a native of 
 Vermont, then a young lawyer in Mr. Field's office, actively 
 assisted him in the case. 
 
 'This appeal was taken May 15, 1854. The Missouri Com- 
 promise was set aside May 25, 1854. 
 
 123 
 
DECISIVE BATTLES OP THE LAW 
 
 their opponents for the restoration of the Mis- 
 souri Compromise, awoke to its poHtical possi- 
 bilities. Here was a case actually on the docket 
 of the highest legal tribunal,(]n which the Mis- 
 souri Compromise was jnvnkprl . to sustain the 
 freedom of a negro^who had resided in the terri- 
 tory which it had dedicated to freedom.3 A 
 better'^ance to declare the Compromise and 
 all similar restrictions against slavery unconsti- 
 tutional could not possibly have been provided. 
 The existence of such a case was not only 
 opportune for the slavery interests, but posi- 
 tively providential, and, properly handled, it 
 bid fair to place the enemy in their power, for 
 if the Court could be induced to declare the 
 famous Compromise unconstitutional, further 
 agitation for restoring it would be utterly futile. 
 A great opportunity lay before the South, and 
 her able representatives lost no time in grasp- 
 ing it. 
 
 Meanwhile, Mr, Field was perfecting his plans 
 without the slightest suspicion that he was play- 
 ing into his opponents' hands ; and assuming, as 
 he undoubtedly did, that the Supreme Court 
 was free of political taint, there was nothing to 
 put him on his guard, for the law was strongly 
 in his favor. Doubtless he had considered the 
 
 124 
 
DRED SCOTT vs. SANFORD 
 
 effect of an adverse decision, but there is proof * 
 that he believed, as Taylor Blow probably did, 
 that it would be better for the country to have 
 the vexed question of slavery restrictions de- 
 cided contrary to his wishes than not to have it 
 settled at all, and the legal precedents justified 
 him in regarding the chances as in his favor. 
 To the familiars of the Capitol, however, who 
 remembered that five out of the nine judges 
 were from slave States, and who knew the po- 
 litical leanings of every member of the bench, 
 the die seemed already cast which was to seal 
 slavery as a national institution, and the pros- 
 pect must have rejoiced their hearts. 
 
 At this crisis the case practically passed out 
 of the hands of Messrs. Garland & Norris, 
 who had hitherto represented Scott's owners, 
 and volunteer counsel of national reputation 
 assumed complete control. In Missouri, United 
 States Senator Henry S. Geyer, the unques- 
 tioned leader of the St. Louis bar, whose defeat 
 of Thomas H. Benton had demonstrated his 
 political importance, offered his services, and 
 with him was associated Reverdy Johnson, ex- 
 Attomey-General of the United States, a jurist 
 
 ' Autograph letter of Field to Blair, December 24, 1854, here- 
 after quoted. 
 
 I2S 
 
DECISIVE BATTLES OF THE LAW 
 
 known from ono^end of the country to the other. 
 It was certainly strange that Johnson, who had 
 previously declared his belief that it was hope- 
 less to appeal to the courts against slavery 
 restrictions, shoidd have thrown himself into 
 the breach; but the times had changed since 
 the great advocate had despaired of judicial 
 relief, and both he and Alexander H. Stephens, 
 who had shared his earlier views, and who was 
 to prove a not tmimportant factor in the 
 result, doubtless understood the situation thor- 
 oughly. 
 
 In the meantime, Mr. Field had been searching 
 for legal assistance, and on the 24th of December, 
 1854, he wrote Montgomery Blair, at Washing- 
 ton, as follows: " A year ago I was employed to 
 bring a suit in favor of one Dred Scott, a black 
 man held in slavery. . , . The question involved 
 is the much-vexed one whether the removal by 
 the master of his slave to Illinois or Wisconsin 
 works an absolute emancipation. ... If you or 
 any other gentleman at W. should feel interest 
 enough in the case to give it such attention as 
 to bring it to a hearing and decision by the 
 Court, the cause of humanity may perhaps be 
 subserved; at all events, a much-disputed ques- 
 tion would be settled by the highest courts of the 
 
 126 
 
DRED SCOTT vs. SANFORD 
 
 nation. ... It is so late on the docket that it 
 will hardly be reached this term." ' 
 
 This letter not only sets at rest the oft-re- 
 peated stories that the litigation was instigated 
 by the Blairs or their adherents, but demon- 
 strates the motives of those who brought it to 
 the attention of the Federal Court. 
 
 Mr. Field's intimation that there would be 
 ample time for the distinguished counsel to 
 prepare himself for the contest proved well- 
 founded, for it was not imtil February ii, 1856, 
 more than a year after his letter was written, 
 that the case was argued, and even then its 
 importance was so little realized that the news- 
 papers devoted scarcely any attention to it; 
 and as time passed by without any decision 
 from the Court, its existence was apparently 
 forgotten. 
 
 It was not forgotten by the politicians, how- 
 ever, and the surrounding circumstances clearly 
 indicate that they were already at the elbows 
 of the judges, whispering in their ears. Certain 
 it is that the judicial deliberations were sus- 
 
 ' From a hitherto unpublished letter courteously loaned to the 
 writer by Montgomery Blair, Esq. The italics are the writer's. 
 The Statement of Facts agreed upon between the attorneys 
 as reported in 19 How. (U. S.) is inaccurate in many particulars 
 touching Scott's history. 
 
 127 
 
DECISIVE BATTLES OF THE LAW 
 
 piciously prolonged, and that any decision — 
 especially one nationalizing slavery — ^would have 
 been extremely embarrassing to the managers 
 of Mr. Buchanan's pending campaign for the 
 Presidency, the success of which was considered 
 vital to Southern interests. Finally, on May 
 12, 1856, came the solemn announcement that 
 certain technicalities raised by the pleadings 
 required a reargument of the whole case, and 
 another hearing was set for the December term 
 — ^when the Presidential contest would be safely 
 out of the way. 
 
 A few days before the reargument, Mont- 
 gomery Blair called to his assistance George 
 Ticknor Curtis,' of Boston, brother of Justice 
 Benjamin R. Curtis, and when, on December 
 15, 1856, the case was again reached, these two 
 able lawyers presented it with masterly effect 
 for the plaintiff, Reverdy Johnson and Senator 
 Geyer again responding with equal force for the 
 defence, each side occupying the attention of 
 the court for two entire days. 
 
 It would have been well for the bench had 
 the judges listened to no other arguments than 
 
 ' Mr. Blair previously attempted to retain other distinguished 
 counsel, but none of them would serve. (Blair to Editor Na- 
 tional Intelligencer, December 24, 1856.) 
 
 128 
 
DRED SCOTT vs. SANFORD 
 
 those presented to thetn in open court by the 
 able advocates, and for a time it seemed as 
 though the case would be disposed of in regular 
 course. Almost immediately after the final 
 argument it was taken up in the judges' private 
 conference, and a majority voted to affirm the 
 decision of the court below, Judge Nelson being 
 assigned to write a brief opinion, which was to 
 avoid all reference to the constitutionality or 
 unconstitutionality of such restrictions as the 
 Ordinance of 1787 and the Missotiri Compromise, 
 and merely commit the Court to an affirmance 
 of the decision of the State Court, treating the 
 issues as local questions with which the Federal 
 tribunal was not inclined to interfere. 
 
 Before Mr. Justice Nelson could prepare this 
 opinion, however, the active agents of the slave 
 power intervened. At dinners, receptions, and 
 social functions of all sorts they waylaid the 
 judges, adroitly importuning them to change 
 their plan, flattering those whose vanity gave 
 the necessary opening, appealing to the ambi- 
 tion of others, and generally emphasizing the 
 opportunity which lay before the Court to fulfil 
 a public and patriotic duty by forever quieting 
 a discussion injurious to the country's welfare. 
 Dedlare all such restrictions against slavery as 
 
 129 
 
DECISIVE BATTLES OF THE LAW 
 
 the Missouri Compromise tinconstitutional, it 
 was urged, and the North will acquiesce and 
 the Union be preserved. Avoid the issue, 
 and the agitation will precipitate a national 
 disaster. All of the judges were honest and 
 conscientious, but some of them were far ad- 
 vanced in age, the poHtical excitement was in- 
 tense, and the pressure which w4s constantly 
 brought to bear upon them was well calculated 
 to disturb their judgment. 
 
 The most active and persistent of the emis- 
 saries who thus approached the jurists was 
 undoubtedly Alexander H. Stephens, and his 
 labors began fully six months before a decision 
 was announced. On December 15, 1856, he 
 wrote to a friend as follows: "I have been 
 urging all the influence I could bring to bear 
 upon the Supreme Court to get them to post- 
 pone no longer the case in the Missouri Restric- 
 tion, but to decide it," and that his influence 
 was potent is demonstrated by a later letter in 
 which he wrote: "The decision (of the Dred 
 Scott case) will be a marked epoch in our his- 
 tory. From what I hear sub rosa it will be 
 according to my own opinion on every point as 
 abstract poHtical questions. The restriction of 
 1820 will be declared unconstitutional. The 
 
 130 
 
DRED SCOTT vs. SANFORD 
 
 judges are writing out their opinions . . . seri- 
 atim. The Chief- Justice will give an elaborate 
 one." 
 
 How an outsider came to be so intimately 
 acquainted with what was happening in the 
 secret conclaves of the judges has never been 
 disclosed, but the information was accurate in 
 every particular, and bears evidence of having 
 been obtained at first hand, for shortly after 
 Justice Nelson had been authorized to prepare 
 his opinion another judicial conference had been 
 held, at which it was decided to change the plan 
 already agreed upon, and to meet the expecta- 
 tion of the public by passing directly upon the 
 political issues involved. This, of course, meant 
 nothing less than a declaration that Territorial 
 restrictions against slavery were unlawful, and 
 from the moment this step was decided upon all 
 the judges were busy with their law-books and 
 their pens. Thus the time sHpped by without 
 any announcement from the Court, and it was 
 not until the 4th of March, 1857, that an inti- 
 mation reached the public of the Court's inten- 
 tions. That intimation, however, came from a 
 high authority, for President Buchanan in his 
 inaugural referred to the issue of slavery in the 
 Territories as a " judicial question which legiti- 
 10 131 
 
DECISIVE BATTLES OF THE LAW 
 
 mately belongs to the Supreme Court of the 
 United States, before whom it is now pending, 
 and will, it is understood, be speedily and 
 finally settled." 
 
 It is not remarkable that the Chief Magistrate 
 of the nation should have been accurately in- 
 formed of the Court's intentions, with Stephens 
 and other insiders at his elbow, and two days 
 after his inaugural prophecy the decision was 
 officially annovinced declaring all slavery restric- 
 tions unconstitutional, six judges voluminously 
 supporting the Chief- Justice's exhaustive opin- 
 ion, and two bitterly attacking the views of the 
 majority. 
 
 For a time the public did not realize what 
 had happened, but the Northern press quickly 
 made the matter plain, and a storm of indigna- 
 tion followed. That seven judges, five of whom 
 were from slave States, and all of whom were 
 affiliated with the Democrats, should officiously 
 decide the slavery issue for the whole coimtry 
 by forever nationalizing the institution, roused 
 the free States to the point of fury. Nothing 
 that had previously happened — ^not even the 
 repeal of the Missouri Compromise — so clearly 
 demonstrated the fixed determination of the 
 slave power to coerce the North, and from that 
 
 132 
 
DRED SCOTT vs. SANFORD 
 
 time forward public opinion in the free States 
 rapidly solidified. Moreover, the unfortunate 
 wording of Chief- Justice Taney's opinion gave 
 strong grounds for charging that he had an- 
 nounced the brutal doctrine that a negro ^' has 
 no rights which a white man was bound to 
 respect," J and this offensive sentence focussed 
 the popular wrath upon him. Thousands of 
 copies of his opinion were printed with those of 
 the dissenting judges, Curtis and McLean, and 
 scattered broadcast over the cotintry. Seward 
 openly denounced the Court, unjustty hinting at 
 connivance with the Executive; Lincoln ex- 
 posed its doctrines with remorseless logic; mass- 
 meetings and newspapers attacked them in the 
 North, while the whole South rang with ap- 
 plause ; and in less than a fortnight Dred Scott 
 had become a national character, and his suit 
 for assault and battery a cause cetehre. 
 
 Eighteen months later it was still a leading 
 issue in the great debate between Douglas and 
 Lincoln, the latter using it with terrible effect 
 against his adversary, and it was Douglas's 
 refusal to abide by the decision in its entirety 
 that in i860 cost him the Democratic nomina- 
 tion, and hopelessly split the party. 
 
 Meanwhile, Dr. Chaffee had quietly arranged 
 
DECISIVE BATTLES OF THE LAW 
 
 for the transfer of Scott and his family to 
 Taylor Blow, in order that their legal owner- 
 ship might be vested in a resident of Missouri 
 having power vmder the State laws to grant 
 manumission, and in May, 1857, the fotir slaves 
 were ofhcially freed. 
 
 Neither of the parties in this great legal battle 
 lived to see the war that followed it. John F. 
 A. Sanford died almost directly after the deci- 
 sion, and Scott fell a victim to consumption on 
 September 17, 1858, in St. Louis, his death being 
 scarcely noted in the fierce political excitement 
 then raging. But though he died in poverty 
 and neglect, and the location of his grave is 
 uncertain, the famous case with which his name 
 is Hnked will outlast any monument, Land as a 
 pawn in the great contest over slavery his fame 
 is forever assured.J 
 
V 
 
 THE IMPEACHMENT OF ANDREW JOHNSON: 
 A HISTORIC MOOT CASE 
 
 HAD a foreigner, unacquainted with Ameri- 
 can politics, unwittingly selected the morn- 
 ing of March 30, 1868, for a tour of the national 
 Capitol, he might well have imagined, on ap- 
 proaching the seat of government, that a social 
 function of some description was impending in 
 the Halls of Congress, for fashionably dressed 
 women were arriving in carriages and flocking 
 up the broad stairway, and had the visitor 
 proceeded undaunted into the rotunda he 
 would have fovmd himself surrovmded by ladies 
 in gala attire. 
 
 Even a stranger, left to his own conjectures, 
 would have speedily discerned, however, that 
 whatever else the affair might be, it was de- 
 cidedly exclusive, for although many fair guests 
 were apparently called, and all were obviously 
 clad in wedding-garments, comparatively few 
 
 13s 
 
DECLSIVE BATTLES OF THE LAW 
 
 were chosen, and the credentials of 'those few 
 were subjected to a rigid scrutiny before their 
 possessors were allowed to pass the door-keepers 
 of the Senate galleries. It was no easy task 
 which had devolved upon those officials that 
 glorious spring morning. Matrons and maidens 
 besieged them on every side, arguing, explain- 
 ing, exposttilating, and beguiling, and a buzz of 
 gentle excitement and indignation filled the air. 
 The door-keepers were not, however, without 
 previous experience, and scores of fair appli- 
 cants were turned away with scant ceremony, 
 venting their grievances in such open fashion 
 that any one who chose to listen speedily learned 
 that the ticket system governing admission to 
 Andrew Johnson's impeachment trial was a 
 gross infringement of American liberty, a scan- 
 dalous abuse of political patronage, and gen- 
 erally an outrage. 
 
 It was repeatedly asserted, without contra- 
 diction, that Congressmen and Senators had 
 disposed of their privileges to the highest 
 bidders, and that speculators were marketing 
 the coveted cards of invitation at fabulous 
 prices. Details of this nefarious business were 
 lacking and something might fairly have been 
 allowed for the disappointment of the angry 
 
 136 
 
IMPEACHMENT OF ANDREW JOHNSON 
 
 gossips, but accusations against politicians are 
 credited on general principles, and it would not 
 have been prudent for any ticket hawker to have 
 offered his wares in the vicinity of the Capitol 
 at the opening of the greatest State trial in the 
 history of the republic. Fortunately, however, 
 no such miscreant appeared, and the identity of 
 the money-making statesmen has never been 
 revealed. 
 
 By eleven o'clock the rotunda and the lobbies 
 of both Houses were crowded with citizens, but 
 very few of the masculine gender sought admit- 
 tance to the guarded entrance. Representatives 
 of the Diplomatic Corps and belated journalists 
 drifted in with the procession of the feminine 
 elect ; but with those privileged exceptions every 
 available post of observation was occupied by 
 the fair sex long before noon, and the gay spring 
 gowns and bonnets gave a color and brilliance 
 to the galleries which contrasted strangely with 
 the sombre scene upon the floor. Indeed, the 
 visitors presented a picture rarely, if ever, 
 equalled in the history of the Chamber. All 
 Washington was represented behind the flutter- 
 ing fans — ^not only political Washington, but 
 diplomatic, literary, artistic, and generally ex- 
 clusive Washington. It was not every day that 
 
 137 
 
DECISIVE BATTLES OP THE LAW 
 
 wives and daughters of Senators, to say nothing 
 of Congressmen, had an opportunity of meeting 
 the social leaders of the other sets upon common 
 ground, and almost every visitor was a subject 
 of comment to every other as the spectators 
 rustled, stirred, hifmmed, and buzzed regardless 
 of the distinguished statesmen droning through 
 routine business upon the Senate floor. 
 
 Doubtless most of the fair onlookers knew 
 more of the personal history of their neighbors 
 than they did of the merits of the great con- 
 troversy which had occasioned the gathering, 
 and their attendance was not to afford them 
 much enlightenment. Probably all that the 
 majority knew or cared to know was that the 
 President of the United States had been im- 
 peached by the House and was about to be 
 tried by the Senate for high crimes and misde- 
 meanors; but the particulars of the indictment 
 were not matters of common knowledge, for 
 the contest between the Executive and Con- 
 gress was not a burning political issue discussed 
 in every household. To the leaders of society 
 it had been a tiresome and complicated busi- 
 ness, but it had resulted in an Occasion — and 
 the Occasion was unquestionably great. 
 
 Even in the diplomatic circles the events 
 138 
 
IMPEACHMENT OF ANDREW JOHNSON 
 
 which had culminated in the impending trial 
 were but imperfectly understood, and possibly 
 no one in the brilliant audience, that laughed 
 and chattered in the galleries, fully comprehend- 
 ed the situation, except the representatives of 
 the press. * 
 
 The newspaper men, however, were familiar 
 with every phase of the mighty struggle over 
 the reconstruction of the seceded States — a 
 struggle inaugurated before Booth had re- 
 moved the one man who might have proved 
 equal to the perilous emergency and whose 
 tact and self-sacrifice might have saved the 
 South from humiliation and the entire nation 
 from irremediable mistakes. They knew that 
 Andrew Johnson had inherited a task utterly 
 beyond his powers, and they had watched his 
 clumsy but courageous efforts to handle it with 
 intense interest but with Httle sympathy, for 
 the President was not a man of personal mag- 
 netism who touched the imagination. He was 
 a coarse -fibred, right - hearted, strong - headed, 
 fearless, honest fighter who neither asked nor 
 gave quarter — a good hater, without the qualities 
 which rally and inspire friends^a determined 
 rather than a heroic figure, even when battling 
 for the right. The little group of joumahsts in 
 
 139 
 
DECISIVE BATTLES OF THE LAW 
 
 the press gallery above the Vice-President's 
 chair, had heard his early denunciations of 
 the South applauded and approved by the 
 radical leaders of the House and Senate, and 
 they had watched his gradual change of atti- 
 tude and honest effort to conform his imptil- 
 sive programme to the magnanimous policy of 
 his illustrious predecessor with misgiving. 
 
 No one who had studied the man as they 
 had could have failed to foresee trouble when 
 his own State — Tennessee — was denied repre- 
 sentation in the national councils; and when 
 the Executive answered that affront with a veto 
 of the Freedman's Bureau bill every trained 
 observer interpreted his action as a challenge, 
 and it required no gift of prophecy to predict 
 that the defiance would be instantly met and 
 answered by the leaders of Congress — ^men every 
 whit as resolute and masterful as he. Indeed, 
 covert hostilities had preceded this first blow 
 in the open. And before the public realized 
 what was happening a bitter family feud was 
 completing the ruin of the South. 
 
 Only the blindest of partisans now deny that 
 the President had the best interests of the 
 whole nation at heart in his championing of the 
 seceded States, and even the severest critics of 
 
 140 
 
IMPEACHMENT OF ANDREW JOHNSON 
 
 Congress admit the sincerity of its leaders in 
 safeguarding the principles which had been 
 settled on the field of battle. Both sides un- 
 questionably desired the same result, but John- 
 son had in an unguarded moment declared his 
 belief that the salvation of the country lay with 
 the old Democratic party, and such heresy from 
 the lips of a Republican President aroused every 
 radical to the point of frenzy. From that instant 
 a momentous national problem was at the mercy 
 of party politics, and compromise was hopeless. 
 To the President's plan of conciliation and 
 forgiveness his adversaries opposed a policy of 
 coercion; to his vetoes they responded by pack- 
 ing the Senate and overriding his objections 
 with shouts of exultation ; to his insistence upon 
 the letter of the Constitution they replied with 
 sweeping amendments. But neither threats 
 nor obstructions intimidated or discouraged 
 the Executive, and he closed with the opposi- 
 tion, grimly determined to fight to the bitter 
 end, regardless of the consequences to himself 
 or others. The fanatics no sooner disposed of 
 one exasperating veto than another, equally 
 well drawn and maddeningly logical, was thrust 
 upon them, and the game of check and counter- 
 check continued until Johnson's veto record far 
 
 141 
 
DECISIVE BATTLES OF THE LAW 
 
 surpassed that of any other President, and bade 
 fair to equal that of all his predecessors com- 
 bined. It was speedily demonstrated, however, 
 that this direct assault would never succeed in 
 dislodging the legislative enemy; but there re- 
 mained the mighty engine of official patronage, 
 and it was not long before the unruly House 
 and Senate found themselves attacked upon 
 the flank. This move against their henchmen 
 seriously alarmed the leaders of the dominant 
 party, for they instantly realized that wholesale 
 removals from office would destroy discipline 
 and possibly force a compromise, or even a 
 complete capitulation to "the great criminal of 
 the White House." Not a moment was to be 
 lost if the army of office-holders was to be pro- 
 tected from rout or capture, and the Tenure-of- 
 Office bill was speedily passed to avert the 
 threatened catastrophe. This measure virtually 
 left the President powerless to remove any offi- 
 cial without the approval of the Senate. In its 
 original form the bill had expressly excepted 
 members of the cabinet from its protection, but 
 this concession did not meet with the concur- 
 rence of the House, which was in no mood to 
 leave Andrew Johnson even a vestige of au- 
 thority, and a compromise was effected by 
 
 142 
 
IMPEACHMENT OF ANDREW JOHNSON 
 
 substituting for the plain exception a proviso 
 that members of the cabinet should respectively 
 hold their offices during the term of the Presi- 
 dent by whom they had been appointed and 
 for one month afterwards — as vague and cow- 
 ardly a phraseology as ever disgraced a public 
 statute. Having disarmed their hated antago- 
 nist, the rabid party leaders then turned their 
 undivided attention upon his wards, and in a 
 frenzy of retaliation they enacted legislation 
 which ultimately reduced the South to the level 
 of conquered provinces, and forced unqualified 
 suffrage upon the entire Union — ^burdens and 
 disgraces shared and suffered by the nation at 
 large. 
 
 In all this disastrous business the radicals 
 had had a powerful ally in Edwin M. Stanton, 
 Secretary of War, and when the President was 
 no longer able to endure the increasing arro- 
 gance and opposition of this important member 
 of his official family and removed him from 
 office, the House received the news with open 
 exultation. More than one exasperated Repre- 
 sentative had previously expressed the wish 
 that Johnson would violate some of the obnox- 
 ious laws which had been forced upon him; but, 
 as time passed, all hope of catching him dereHct 
 
 143 
 
DECISIVE BATTLES OF THE LAW 
 
 in his duties had practically faded. But finally 
 Providence in the dubious shape of the Tenure- 
 of-Ofiice Act had delivered him into their hands, 
 and with indecorous haste and amid riotous 
 rejoicings the President of the United States 
 was impeached by the House upon charges 
 promptly presented at the bar of the Senate. 
 
 At first the removal of Stanton was thought 
 to be ah all-sufficient provocation, but craftier 
 counsels prevailed, and a ponderous bill of im- 
 peachment resulted, embracing all Johnson's 
 alleged offences, from the misdemeanor of mal- 
 feasance in office to the high crime of bad 
 manners. In fact, so multifarious and divergent 
 were the accusations against the President that 
 it is not surprising that some of the guests in 
 the crowded galleries supposed that the Chief 
 Magistrate was on trial for inebriety, others that 
 he had committed treason, and still others that 
 he was an accessory to Lincoln's assassination, 
 as had so often been loosely charged in the Halls 
 of Congress. Probably none of these specula- 
 tions, however, troubled the fair visitors as the 
 Senate dawdled through its unfinished business. 
 There were other and more interesting matters 
 demanding attention in the assembling company 
 — ^important information to be asked and given 
 
 144 
 
IMPEACHMENT OF ANDREW JOHNSON 
 
 concerning the distinguished occupants of the 
 diplomatic gallery and other centres of interest, 
 fine points of fashion to be noted and criticised 
 — and the Chamber was a babel of busy tongues 
 when the sergeant-at-arms rose and commanded 
 silence. 
 
 In the sudden hush which followed many of 
 the late-comers studied the scene below them 
 for the first time, and a glance over the floor 
 showed every Senator in his place but one. 
 That vacancy was speedily filled, however, for 
 as the sergeant-at-arms ceased speaking, a tall, 
 clean-shaven, amiable-looking man about fifty 
 years of age vacated the Vice-President's chair 
 and took the one unoccupied Senatorial post. 
 The reporters in the press-gallery nudged one 
 another and nodded significantly as they noted 
 this move on the part of the presiding officer, 
 for, despite his declarations that he would assert 
 all his privileges, it was not generally believed 
 that Senator Benjamin F. Wade, Vice-President 
 and heir apparent to the throne, would have 
 the temerity to take his place as one of Andrew 
 Johnson's judges and vote himself into the 
 Presidency. That silent exchange of seats, 
 however, removed all doubts, and every im- 
 partial observer, cognizant of the facts, felt 
 
 1 45 
 
DECISIVE BATTLES OF THE LAW 
 
 that the Senator from Ohio had committed an 
 offence, not only against good taste but against 
 good morals and justice, which at the very 
 otitset cast a doubt upon the integrity of the 
 Court. But the significance of this ugly circum- 
 stance was not comprehended by the mass of 
 spectators, and conversation had already begun 
 again when the Chief -Justice of the United 
 States, the Hon. Salmon P. Chase, robed in his 
 official black gown, was ushered into the Cham- 
 ber and assumed his place as presiding officer. 
 
 With the advent of this distinguished jurist 
 the scene became more impressive, and as he 
 faced the curved rows of desks behind which 
 sat fifty -four Senators, representing twenty- 
 seven States and nearly forty millions of people, 
 the assemblage seemed to take on more dignity 
 and meaning. The attention of the audience, 
 however, was speedily diverted from the im- 
 posing presence of the judge by proclamation 
 announcing the counsel of the President, and 
 from a side room five men entered the Chamber 
 and seated themselves at a table placed at the 
 right of the Chief -Justice. 
 
 The chair nearest the assembled Senators was 
 assigned to Henry Stanbery, ex-Attomey-Gen- 
 eral of the United States, who had resigned his 
 
 146 
 
IMPEACHMENT OF" ANDREW JOHNSON 
 
 office to devote himself to the case at bar, and 
 whose careful preparation for both attack and 
 defence was to be shown in every phase of the 
 proceeding. 
 
 To the left of Stanbery sat Judge Benjamin 
 Curtis, ex- Justice of the Supreme Court, writer 
 of one of the two dissenting opinions in the Dred 
 Scott case, leader of the Massachusetts bar, and 
 known throughout the country as one of the 
 most distinguished jurists of his day. Curtis 
 was present at a great personal sacrifice and 
 practically without compensation, and none of 
 his associates accomplished more for the cause. 
 Beside Curtis sat one of the ablest lawyers of 
 Tennessee, Judge Thomas Nelson, a warm per- 
 sonal friend of the accused, who represented 
 him in what might be termed his individual as 
 distinguished from his official capacity, and who 
 brought more personal feeling into the contest 
 than any of the President's other counsel. 
 Nelson's reputation in the profession was merely 
 local, but the man at his immediate left was 
 well known to the bar throughout the country, 
 and his keen, thin face and tall, lank figure were 
 familiar to many laymen in the audience, for 
 William M. Evarts was no stranger in Washing- 
 ton. He was then only at the threshold of his 
 II 147 
 
DECISIVE BATTLES OF THE LAW 
 
 great legal career, but his professional reputa- 
 tion was firmly established in his own State, and 
 there were but few lawyers not prominent in 
 politics more widely known throughout the 
 country. 
 
 Partially screened from observation by these 
 imposing legal luminaries sat William Groes- 
 beck, of Cincinnati, a lawyer of grave and 
 modest demeanor, as yet a stranger to the 
 public, but destined before the trial closed to 
 make himself known from one end of the covin- 
 try to the other. 
 
 There had been nothing spectactdar or even 
 formal about the entrance of the President's 
 counsel, but their quiet, dignified bearing and 
 businesslike gravity impressed even the casual 
 observer with a feeling of confidence. The mo- 
 ment they had assumed their places another 
 proclamation announced "the Honorable Man- 
 agers on behalf of the House of Representatives," 
 and six men marched into the Chamber, two by 
 two, each couple linking arms, and the interest 
 of the audience immediately centred upon one 
 of the leaders — a man whose large, pudgy body 
 seemed literally bursting out of his extraordinary 
 swallow-tail coat, exposing a broad expanse of 
 not too immaculate linen, and whose massive 
 
 148 
 
IMPEACHMENT OF ANDREW JOHNSON 
 
 bald head with its Httle fringe of oily curls was 
 probably familiar to every occupant of the gal- 
 leries, for Benjamin Butler had not hidden his 
 light under a bushel. There was power in the 
 man's coarse, big-featured face, force and ag- 
 gressiveness in every line, but his curiously ill- 
 mated eyes with their half-closed lids, his hard 
 mouth and small, drooping mustache, all com- 
 bined to create an uncomfortable impression of 
 cunning and insincerity, and his whole person- 
 ality was unattractive. Accompanying this 
 pugnacious leader were five men well known to 
 the best-informed spectators as prominent Con- 
 gressmen and active opponents of the Presi- 
 dent's policies. Of these Boutwell and Bing- 
 ham were able lawyers, but neither Williams 
 nor Wilson, the chairman, was a lawyer of 
 recognized ability, and John A. Logan, whose 
 long black hair and flowing mustache added 
 picturesqueness to the scene, had no reputation 
 whatsoever in the courts. 
 
 All eyes were still focussed on these official 
 prosecutors, when the attention of the audience 
 was suddenly diverted to a solitary figure mov- 
 ing towards the bar of the Senate, and several 
 of the managers rose as a feeble and emaciated 
 old man, leaning heavily upon a cane and pain- 
 
 149 
 
DECISIVE BATTLES OF THE LAW 
 
 fully dragging a crippled foot along the floor, 
 approached their table. The appearance of the 
 new-comer was pitiful in every way, but one 
 glance at his fierce, aggressive face, with its high 
 protruding cheek-bones, grim mouth, and blaz- 
 ing eyes, was sufficient to convince the observer 
 that pity would be misplaced. Even in his 
 prime and at his most vindictive moments 
 Thaddeus Stevens had never appeared more 
 implacable and vengeful than he did when, 
 with the hand of death upon his shoulder, he 
 crawled into the Senate-chamber to aid in the 
 prosecution of his bitterest enemy. With the 
 fanatical zeal of the early Abolitionists, Stevens 
 had carried his hatred of slavery to the point 
 where he regarded himself as the Heaven-ap- 
 pointed avenger of the negroes and the scourge 
 of the South, and all who checked or even ques- 
 tioned his mission became the objects of his 
 ungovernable' wrath. To his mind Andrew 
 Johnson was a traitor plotting to restore slavery 
 and the slave power, and in this belief he had 
 fought him with the rage of a maniac for three 
 years. Essentially a man of peace, he virtually 
 thirsted for Andrew Johnson's blood, and though 
 wasted in body and bowed with years he still 
 had sufficient strength to trail his victim. In- 
 
 15° 
 
IMPEACHMENT OF ANDREW JOHNSON 
 
 deed, as he declined a silent invitation to a 
 place at the managers' table, and drawing a 
 chair apart from his associates, settled himself 
 to watch the proceedings, his sallow, thin, 
 hawklike face, piercing eyes, and coarse black 
 wig suggested an aged Indian intent upon his 
 prey. The contrast between his sinister frailty 
 and Butler's brutal vitality was suggestive, and 
 as the two men faced the galleries the whole 
 impeachment stood personified. Butler em- 
 bodied the prosecution in the flesh — Stevens in 
 the spirit. 
 
 The judge, jury, and counsel for the respective 
 parties being present, the sergeant-at-arms an- 
 • nounced the accusers, and the House of Repre- 
 sentatives entered the Chamber, headed by the 
 Speaker and the Hon. Elihu B. Washbume, 
 leaning upon the arm of the Clerk of the House. 
 It had evidently been intended that this en- 
 trance of the accusing body should be the most 
 impressive feature of the solemn proceedings, 
 but the effect was marred by the anxiety of the 
 rear ranks to obtain good seats, and instead of 
 a stately and orderly procession something very 
 like a scramble ensued. On former impeach- 
 ment trials the Senators had occupied raised 
 platforms erected on either side of the Chief- 
 
 151 
 
DECISIVE BATTLES OF THE LAW 
 
 Justice, but on this occasion they had voted to 
 keep their usual seats, and cane-bottomed chairs 
 had been placed in the rear of the Chamber and 
 in the aisles between the desks; and every 
 available square inch was required to accom- 
 modate the one hundred and ninety members 
 of the Lower House and those entitled to the 
 privileges of the floor. 
 
 The august tribunal was now complete, and 
 in the hush which followed the somewhat noisy 
 seating of the House the spectators leaned for- 
 ward, expectantly awaiting the President's 
 entrance. Every one knew that he had not 
 attended the preliminary sessions of the Cotirt, 
 but it was the popular belief that he would 
 make his appearance on the day of trial. John- 
 son had, however, no intention of giving his 
 enemies any such satisfaction, and in this and 
 all other respects his attitude in maintaining 
 the dignity of his mighty office was absolutely 
 beyond criticism. 
 
 The absence of the accused was naturally a 
 disappointment to the mass of spectators, but 
 the presence of both Houses of Congress, the 
 Chief- Justice of the United States, the distin- 
 guished counsel, and the occasion of the assem- 
 blage afforded a spectacle never equalled in the 
 
 152 
 
IMPEACHMENT OF ANDREW JOHNSON 
 
 history of the country. To the foreigners the 
 proceedings were, of course, wanting in the 
 pomp and circumstance customary in European 
 affairs of state. There were no resplendent 
 uniforms or picturesque observances; nothing, 
 in fact, to catch the eye, give color to the pict- 
 ure, or touch the imagination, and the dull, 
 sombre aspect of the Chamber and the absence 
 of majestic official ceremonies naturally disap- 
 pointed the Diplomatic Corps. 
 
 The simple democracy of the gathering should 
 have appealed to all Americans, however; and 
 yet, strangely enough, it utterly failed to im- 
 press the best-informed element in the galleries, 
 and more than one thoughtful observer vainly 
 sought a satisfactory reason for the obvious 
 apathy. Possibly it was the presence of Wade, 
 prepared to render a judicial decision upon an is- 
 sue vital to his personal interests ; perhaps it was 
 the sight of Sumner, an open opponent of the ac- 
 cused, and other equally biased partisans, calmly 
 sitting as judges sworn to administer impartial 
 justice ; mayhap it was the notorious Butler and 
 the relentless Stevens and the other party poli- 
 ticians representing the prosecution; possibly 
 it was the flimsiness of the charge, the tricky 
 wording of the statute involved in the accusa- 
 
 153 
 
DECISIVE BATTLES OF THE LAW 
 
 tion, and the technical character of its alleged 
 violation ; doubtless it was some or all of these 
 ominous circumstances which instinctively chill- 
 ed enthusiasm and forbade respect, and before 
 many hours the conduct of the proceedings had 
 utterly stifled all impulse to patriotic pride. 
 
 The various proclamations and the assem- 
 bling of the Court had occupied less than half 
 an hour, and without further loss of time the 
 Chief Justice formally opened the trial by 
 directing that the minutes of the last session 
 be read, at the conclusion of which ceremony 
 Butler immediately rose and faced the Senate. 
 
 In some respects "the hero of Fort Fisher" 
 was better qualified for his task than many of 
 his associates. No abler expounder of casuistry 
 ever addressed a jury, and his doctrine that 
 law was "anything plausibly presented and 
 persistently maintained" had been the key-note 
 of his professional career. In the case at bar 
 there were practically no facts at issue; there 
 were only law points. Disregarding the ground- 
 less and insincere charges interpolated into the 
 indictment to bolster up the real accusation, 
 the Court was asked to decide whether or not 
 the President had violated the Tenure-of-Oflfice 
 Act in removing Stanton, assuming that the 
 
 IS4 
 
IMPEACHMENT OF ANDREW JOHNSON 
 
 office of the Secretary of War was protected by 
 the terms of that act. In other words, the whole 
 cause was built upon an assumed state of facts, 
 hearsay evidence, and rumor, and was in effect 
 a moot case. But this was the sort of material 
 in which Butler fairly revelled, and of which he 
 could probably have made more before a jury 
 than any other lawyer of his day. But although 
 the case was suited to his talents, the jury was 
 not the ordinary collection of laymen to which 
 the sophistical advocate was accustomed. Of 
 the fifty-four Senators who faced Butler, no less 
 than forty-four were lawj^ers — many of them 
 jurists of no mean caliber — ^men familiar with 
 the tricks of the trade, and not only trained to 
 distinguish between sophistry and logic, but 
 qualified to know a lawyer from a limb of the 
 law. 
 
 Seldom in the history of the courts has a 
 member of the bar been called upon to address 
 a similar body of legal experts, and despite his 
 ingentiity and plausibility, Butler was not the 
 type of practitioner whose utterances on ques- 
 tions of law carry weight with the profession. 
 Indeed, he himself probably suspected the 
 disadvantages under 'which he labored, for 
 instead of trusting to his fluent powers of 
 
DECISIVE BATTLES OF THE LAW 
 
 speech, he amied himself with a great sheaf of 
 notes, and proceeded to read a carefully pre- 
 pared address, which soon set the galleries 
 yawning, but delighted the reporters, who 
 gratefully laid aside their pads and pencils, 
 knowing that copies of the harangue cotild be 
 had for the asking. 
 
 Despite his obvious efforts to adapt himself 
 to his learned audience and avoid his customary 
 forensic methods, the speaker's opening was 
 eminently characteristic. He informed his hear- 
 ers that the Senate, organized as a Court of 
 Impeachment, was not a court ; that not being 
 a court, it was bound by no precedents, and 
 that being botmd by no precedents it coidd 
 make its own rules of evidence and generally 
 be " a law unto itself." Having announced this 
 convenient theory, which was certainly well 
 adapted for a case destitute of all legal proof, 
 he proceeded to demonstrate its soundness by 
 quoting precedents from one of the most monu- 
 mental briefs ever submitted to a court of law, 
 utterly oblivious of the humor of hurling au- 
 thorities at a tribunal supposed to be "a law 
 unto itself." This preliminary fiction was, 
 however, only a forerunner of those that were 
 to follow, and starting with the proposition 
 
 156 
 
IMPEACHMENT OP ANDREW JOHNSON 
 
 that Johnson was merely filling out Lincoln's 
 unexpired term, the champion casuist argued 
 that Stanton could not be removed from office 
 under the Tenure-of-Office Act because he had 
 been appointed by Lincoln, and the law pro- 
 tected all officials during the term of the Presi- 
 dent by whom they had been appointed. John- 
 son's term being Lincoln's term, the President 
 had violated the law by removing the Secretary 
 of War, and thereby forfeited his office. The 
 jtiry-exhorter then turned to the more familiar 
 field of cheap invective, and the bored and 
 sleepy audience roused itself to listen to stormy 
 eloquence in which the President's opposition 
 to the Congress was denounced as criminal, and 
 wordy chastisement administered for the sin of 
 criticising political opponents. A little of this 
 diversion, however, soon palled upon the gal- 
 leries, and at the end of three hours the orator 
 relieved the suffering visitors by closing with 
 a panegyric on the great example which the 
 American people were about to afford the won- 
 dering nations of the earth by peacefully re- 
 moving an obnoxious ruler, "while your king, 
 O Monarchist ! if he becomes a tyrant, can only 
 be displaced through revolution, bloodshed, and 
 civil war!" This absurd fustian must have 
 
 157 
 
DECISIVE BATTLES OF THE LAW 
 
 fairly disgusted those Senators who knew in 
 their heart of hearts that the power of impeach- 
 ment was being misused for party purposes. 
 Indeed, before the weary day ended there was 
 some evidence of a reaction in the President's 
 favor, and the case had aheady begun to totter. 
 There was plenty of elbow-room in the 
 galleries at the next session, but the proceedings 
 had scarcely opened when the most interesting 
 and important question of the whole trial was 
 presented, the decision of which was destined 
 to have a far-reaching result. In ordinary 
 courts of law the presiding justice passes upon 
 the admissibility of all evidence, but the mo- 
 ment Judge Chase attempted to exert this 
 prerogative his authority was challenged. The 
 Senate and not the Chief - Justice was the 
 proper judge of what testimony shotild be 
 admitted or excluded, contended the man- 
 agers, who for some mysterious reason sus- 
 pected Chase of favoring the accused, and 
 after a sharp debate the Senators decided that 
 they would reserve to themselves the right of 
 deciding what testimony they should hear. The 
 motive of this extraordinary move was only too 
 obvious. It was the sort of justice which the cur 
 proposed for the mouse in Alice's Wonderland: 
 
 iS8 
 
IMPEACHMENT OF ANDREW JOHNSON 
 
 " I'll be judge— I'll be jury!" 
 Said cunning old Fury. 
 " I'll try the whole cause 
 And condemn you to death!" 
 
 and the final outcome can be directly traced to 
 this flagrant impropriety. 
 
 It is extremely doubtful if there ever was a 
 trial in which fewer facts were in dispute than 
 in the case at bar, but for six days the managers 
 struggled to substantiate the voluminous im- 
 peachment, at the end of which period all that 
 was proved was what stood admitted by the 
 pleadings — namely, that the President had at- 
 tempted to remove his Secretary of War, and 
 that some two years previous to this more than 
 doubtful offence he had indulged in vindignified 
 utterances at the expense of his political enemies. 
 
 On the gth of April, the prosecution having 
 rested, Judge Curtis opened for the defence 
 before an audience filling every nook and cranny 
 of the Chamber. Curtis enjoyed a very different 
 reputation in the profession from the leading 
 counsel for the prosecution. He was a jurist of 
 recognized authority, and there was no lawyer 
 in the Senate but could well afford to receive 
 instruction from his lips. Well aware of But- 
 ler's failure to impress his fellow-practitioners, 
 
 159 
 
DECISIVE BATTLES OF THE LAW 
 
 the speaker addressed the tribunal with ad- 
 mirable dignity and tact, speaking without 
 notes, and arguing as a lawyer to lawyers, every 
 sentence aimed at the best professional talent 
 among the Republicans of the Chamber. In 
 the little group of Democrats there were several 
 lawyers of national repute, but their votes were 
 assured, whereas there were a dozen or more 
 Republicans open to legal persuasion, and if 
 even a small minority of those men could be won 
 from party allegiance by a purely intellectual 
 appeal, all danger of conviction would be over. 
 
 With a knowledge bom of long experience in 
 the appellate courts the distinguished advocate 
 instantly struck at the heart of the case, de- 
 molishing Butler's " law unto itself " theory with 
 a sentence, and attacking the cowardly worded 
 Tenure-of-Office Act, showing that it was not 
 intended to prevent the President from remov- 
 ing Stanton, or if it were, that it was so badly 
 constructed that it had utterly failed to effect 
 its purpose. 
 
 "I am here," he began, "to speak to the 
 Senate of the United States sitting in its judicial 
 capacity as a Court of Impeachment presided > 
 over by the Chief- Justice of the United States 
 for the trial of the President of the United 
 
 1 60 
 
IMPEACHMENT OF ANDREW JOHNSON 
 
 States. . . . The Honorable Managers have in- 
 formed you that this is not a cotirt, and what- 
 ever may be the character of this body it is 
 boimd by no law. . . . Each one of you before 
 you took your place here called God to witness 
 that he would administer impartial justice in 
 this case according to the Constitution and the 
 laws." 
 
 If any one imagined, continued the speaker, 
 that this oath invested him with authority to 
 make up his own laws as occasion required, or 
 as his desires dictated, his ideas of administer- 
 ing impartial justice were not those approved 
 in the profession of the law. 
 
 Butler's whole argument was shattered by 
 this blow, and his elaborate fiction that John- 
 son's term was Lincoln's was almost as speedily 
 exposed. "At the time of Mr. Stanton's re- 
 moval, was he under the protection of the 
 statute entitling cabinet officers to hold their 
 positions during the term of the President who 
 appointed them?" inquired the jurist. "The 
 Honorable Managers say yes," he continued, 
 "because they say Mr. Johnson is merely serv- 
 ing out the residue of Mr. Lincoln's term. But 
 is that so? The (Presidential) limit of four 
 years is not an absolute limit. Death is a 
 
 i6i 
 
DECISIVE BATTLES OF THE LAW 
 
 limit. A conditional limitation, as the lawyers 
 call it, is imposed on the tenure of his office. 
 There is no more propriety in calling the term 
 during which Mr. Johnson holds the office of 
 President a part of Mr. Lincoln's term than 
 there would be in saying that one sovereign 
 who succeeds another by death holds a part of 
 his predecessor's reign." 
 
 This terse, logical, legal presentment of the 
 main issue caught and held the attention of 
 every lawyer in the Chamber, and at the close 
 of his masterly dissection of the eleven articles 
 Curtis might safely have rested his case, for 
 devotion to the law was second nature to some 
 of the Senate, and despite the bias and passion 
 of party feuds they responded to the professional 
 touch. 
 
 There was at least one layman, however, 
 among the open-minded Senators to whom the 
 strictly legal argument may not have appealed 
 with convincing force; but at the close of 
 Curtis's remarkable address, which occupied the 
 best part of two days, an episode occurred which 
 was calculated to arouse the indignation of lay- 
 men and lawyers alike. 
 
 General Lorenzo Thomas, a respected officer 
 of the army, appointed by the President as 
 
 162 
 
IMPEACHMENT OF ANDREW JOHNSON 
 
 Secretary of War ad interim after Stanton's 
 removal, was called to the stand to show, 
 among other things, that Johnson's purpose in 
 appointing him was to create an issue for the 
 cotirts, and thus decide the constitutionality of 
 the Tenure-of-Office Act. General Thomas was 
 an amiable man, well advanced in years, sol- 
 dierly in appearance and bearing, and when he 
 took the stand, dressed in full uniform, and gave 
 his testimony, it was evident, despite his amus- 
 ing loquacity, that he desired to relate the few 
 facts within his knowledge as accurately as 
 possible. But the unsophisticated witness gave 
 Butler an opportunity to play to the galleries, 
 and knowing his man, and having, so the story 
 goes, an old grudge to settle dating back to his 
 removal as military Governor of Louisiana, he 
 attacked the General on cross-examination with 
 all the weapons at the command of an unscrupu- 
 lous practitioner, hectoring and bullying the 
 honest old soldier, and tricking him into contra- 
 dictions and foolish answers, until the thought- 
 less in the gallery roared. 
 
 This sorry exhibition was soon followed, 
 however, by an outrage so gross that it dis- 
 credited the whole proceeding, and gave the 
 finishing - touch to the managers' blundering 
 13 163 
 
DECISIVE BATTLES OF THE LAW 
 
 campaign. In the gorgeous tiniform of a lieu- 
 tenant-general, Sherman took the stand and 
 proceeded to testify that the President had 
 offered to appoint him Secretary of War on the 
 understanding that the legality of his appoint- 
 ment should be tested in the covirts, the object 
 of the testimony being to show Mr. Johnson's 
 good faith, but the prosecution immediately ob- 
 jected to any proof of the President's motives; 
 and when Gideon Welles, Secretary of the Navy, 
 took the stand to report the deliberations of the 
 cabinet over the Tenure-of-Office Act, Butler 
 and his assistants were instantly up in arms. 
 
 In vain the defence protested that the Presi- 
 dent, being charged with an intentional violation 
 of the laws, should be permitted to refute the 
 motive attributed to his conduct, but the man- 
 agers knew the vital importance of the proposed 
 testimony, and they fought it tooth and nail. 
 Finally the Chief -Justice ruled that the proof 
 was relevant and admissible, but, a Senator 
 objecting, the question was submitted to the 
 Senate, which promptly overruled the highest 
 judicial authority in the cotintry and refused 
 to listen to the proof. 
 
 A more shameless denial of justice can scarcely 
 be imagined; but the President's counsel were 
 
 164 
 
IMPEACHMENT OF ANDREW JOHNSON 
 
 men of tinlimited resource and indomitable cour- 
 age, and they straightway devised a means of 
 spreading the facts upon the record indirectly, 
 with the same or even greater force than they 
 would have had if introduced directly. With- 
 out the loss of a moment Mr. Evarts arose and 
 calmly offered to prove on behalf of his client 
 that the members of the cabinet (including Mr. 
 Stanton) had advised the President that the 
 Tenure-of-Oflfice bill was unconstitutional, and 
 that the duty of preparing the veto message 
 had been assigned to Mr. Stanton himself, and 
 wotild have been written by him had he not 
 been in ill health, and that, as it was, he had' 
 actually assisted Seward in draughting it. 
 
 The sensation created by this announcement 
 can well be imagined, for it practically demon- 
 strated that the President was being arraigned 
 for following the counsel of the friend and ally 
 of his accusers, but the partisan Senators sought 
 to cover their consternation by solemnly voting 
 to reject the proposed proof. 
 
 With significant calmness and a challengmg 
 gaze from which there was no escape, Mr. Evarts 
 then offered to prove that the President had 
 submitted the question as to whether or not Mr. 
 Lincoln's appointees were subject to removal un- 
 
 165 
 
DECISIVE BATTLES OF THE LAW 
 
 der the Tenure-of-Office Act to the members of \ 
 his cabinet, includrng Mr. Stanton, and had been 
 advised by them that he could remove any such 
 appointee. In other words, that Mr. Stanton, 
 the protege of Congress, whose dismissal was 
 declared criminal by the impeachment, had him- 
 self approved the President's criminality. 
 
 All this testimony was deemed proper by the 
 Chief -Justice, but his decision was challenged 
 and reversed by the majority of the Senate, 
 callous to all pleas but party expediency, and 
 not one word of testimony on any of these vital 
 subjects was permitted. The exclusion of these 
 facts, however, spoke louder than words. Pub- 
 lic opinion throughout the country instantly 
 revolted at this indecent attempt to suppress the 
 truth, and more than one stanch Republican 
 Senator became disgusted at such mockery of 
 justice. 
 
 Secretary Welles having been forced to leave 
 the stand without testifying, it was useless, in 
 the face of the Senate's rulings, to prolong the 
 struggle, and on the sixteenth day of the trial 
 Mr. Evarts and his associates rested their case. 
 The Senators thereupon voted a short adjourn- 
 ment to enable the respective counsel to pre- 
 pare for the summing up. 
 
 i66 
 
IMPEACHMENT OP ANDREW JOHNSON 
 
 Possibly no body of men anywhere in the 
 world was better equipped than the Senate to 
 withstand the deluge of words which was to 
 descend upon it during the succeeding fortnight. 
 Logan mercifully reduced his contribution to 
 writing, and Stanbery, Wilson, and Stevens were 
 incapacitated by illness from taking more than 
 a nominal part in the oratorical contest; but 
 Boutwell, Williams, Bingham, Nelson, Groes- 
 beck, and Evarts drained the language in their 
 efforts to support and refute the charges against 
 the President, without apparently convincing 
 even one of their auditors by anything they 
 said, for Butler and Curtis had covered the 
 entire case in their respective openings, and 
 there was nothing in the testimony which 
 changed the situation. 
 
 Nelson's address was mainly notable for its 
 passionate eulogy of the President, and Will- 
 iams's, while less notable, was correspondingly 
 bitter in denunciation. Much had been ex- 
 pected of Boutwell, but he not only failed to 
 rise to the occasion, but exposed himself to 
 unsparing ridicule by indulging in childishly 
 extravagant metaphor and exaggeration. In- 
 deed, Evarts almost laughed the case out of 
 court at his expense, and the jaded Senate 
 
 167 
 
DECISIVE BATTLES OF THE LAW 
 
 actually listened when the great New York 
 lawyer, in the course of a masterful speech, 
 turned aside to flay his indiscreet opponent. 
 
 With the empty issue at bar it was wellnigh 
 hopeless for any advocate to rise to great 
 heights, but Evarts and Groesbeck almost 
 achieved the impossible, and the Cincinnati 
 lawyer, who had remained unobtrusively in the 
 backgrovind until he rose to make his argument, 
 not only relieved the tedium of the theme, but 
 forced the tribute of tinremitting attention from 
 his hearers, and won the only legal reputation 
 which resulted directly from the trial. 
 
 Bingham's long closing address was in no 
 way remarkable, either for adroitness or elo- 
 quence, but the personnel of the galleries was 
 very different from that of the opening days, 
 and at the conclusion of his harangue he was 
 greeted with a burst of suspiciously unprovoked 
 applause, which continued until the galleries 
 were cleared, the exhausted Senators speedily 
 following the ejected public with the relief of 
 prisoners released from torture. 
 
 But although the formal argxmients were 
 closed, the wavering Senators had no sooner 
 left the Chamber than they found themselves 
 subjected to a very different sort of persuasion 
 
 1 68 
 
IMPEACHMENT OF ANDREW JOHNSON 
 
 from that which had been officially urged upon 
 them, and for almost two weeks they were 
 pestered, persecuted, and actually threatened 
 with every form of political and private argu- 
 ment in the effort to make their opinions con- 
 form to that of the majority. 
 
 Despite the unparalleled efforts which had 
 been made to anticipate the judgment of the 
 Court, the event was still in doubt when the 
 Senate assembled on the sixteenth day of May 
 to record its verdict, and the galleries were 
 again crowded to their utmost capacity, while 
 great throngs of spectators were massed in and 
 around the Capitol. By noon all the managers 
 were present and all the President's counsel 
 except Judge Curtis; every Senator, with the 
 exception of Grimes and Howard, was at his 
 post; the entire House of Representatives was 
 in attendance; the Chief -Justice occupied the 
 chair, and just before the Chamber was called 
 to order the doors opened, and Howard, who 
 had arrived at the Capitol on a stretcher, was 
 practically carried to his seat. Howard's vote 
 was regarded as pledged to conviction, and the 
 hopes of the President's enemies rose athis appear- 
 ance. There now remained only one vacant place, 
 and that of a man likely to favor the accused. 
 
 169 
 
DECISIVE BATTLES OP THE LAW 
 
 The Chief- Justice's gavel fell, and after the 
 majority of the members had decreed that the 
 last article of the impeachment should be the 
 first voted upon, Edmunds broke the solemn 
 silence by moving that the Senate proceed to 
 judgment. Glancing anxiously over the room, 
 Senator Fessenden rose to urge an adjournment 
 until Grimes could be present, but before his 
 plea was concluded the doors again opened, the 
 missing Senator, more dead than alive, was 
 supported to his place, and the High Court of 
 Impeachment presented a full bench. 
 
 Acting upon the order of the Senate, the 
 Chief -Justice thereupon directed the secretary 
 to read the last article of the impeachment, the 
 one count in the long indictment which was so 
 worded as to insure a stronger vote than any of 
 the other ten; and at the conclusion of this 
 formality Judge Chase rose, and facing the 
 fascinated audience, commanded the secretary 
 to call the roll. 
 
 The first Senator in alphabetical order was 
 Anthony, of Rhode Island, one of the waverers 
 suspected of party disloyalty and the subject of 
 much attention during the adjournment, and 
 as he rose and faced the Chief -Justice a death- 
 like stillness settled upon the Chamber. 
 
 170 
 
IMPEACHMENT OF ANDREW JOHNSON 
 
 "Mr. Senator Anthony, how say you?" ques- 
 tioned the distinguished jurist. "Is the re- 
 spondent, Andrew Johnson, President of the 
 United States, guilty or not guilty of a high 
 misdemeanor as charged in this article?" 
 
 "Guilty," answered the suspected Senator, 
 and the managers and party leaders settled 
 back comfortably in their chairs. 
 
 Htmdreds of pencils kept tally as the voting 
 proceeded, and it was soon apparent that party 
 discipline was being strictly maintained, the 
 Democrats without exception recording nega- 
 tive votes, and the Republicans exhibiting un- 
 broken ranks. Indeed, Simon Cameron was so 
 zealous in his party allegiance that he blurted 
 out " guilty!" before the Chief -Justice completed 
 his question, and for a moment the solemnity of 
 the proceedings was threatened by the titter 
 which greeted his performance. Suddenly, how- 
 ever, there was a sound which dismayed some 
 of the satisfied managers, for Senator Fessenden, 
 of Maine, answered " not guilty " to the presiding 
 officer's inqmry, and destroyed all hope of com- 
 plete party harmony, Fessenden's loyalty had 
 been long under suspicion, but there were those 
 who believed that neither he nor any other 
 Senator would dare oppose the majority at the 
 
 171 
 
DECISIVE BATTLES OF THE LAW 
 
 final hour. Nevertheless, Grimes struggled to 
 his feet a few moments later and recorded his 
 belief in the President's innocence, and Hender- 
 son, of Missouri, followed his example. Before 
 the clerk reached the name of Senator Ross, of 
 Kansas, however, twenty-four votes had been 
 recorded for conviction, ten more were practi- 
 cally pledged, and only thirty-six were neces- 
 sary to convict. 
 
 Ross was a silent man, who had wrapped 
 himself in a mantle of dignity and refused 
 to discuss the case or to allow any one 
 to approach him concerning it outside the 
 Senate Chamber, and his opinion was the only 
 one about which no information of any sort 
 had been procurable. If he voted "guilty," 
 the impeachment was almost certain of success; 
 if "not guilty," his example on the wavering 
 Republicans might work disaster, and the au- 
 dience sat spellbound as the Chief- Justice voiced 
 his solemn question. Then for the first time 
 Ross broke his exemplary silence and recorded 
 a vote of acquittal. From that tense moment 
 the hopes of the party politicians sank, flicker- 
 ing fitfully after Lyman Trumbull refused to 
 follow their dictation, and disappearing as Van 
 Winkle placed his independence upon record, 
 
 172 
 
IMPEACHMENT OP ANDREW JOHNSON 
 
 leaving Wade to the inglorious distinction of 
 futilely recording a vote in favor of elevating 
 himself into the Presidential chair. 
 
 But the final vote, thirty -five to nineteen, 
 lacking only one of conviction, was too nearly 
 a party triiunph to justify surrender, and under 
 whip and sptir other votes were subsequently 
 forced on the second and third articles with 
 the same resiilt. Then the disappointed ma- 
 jority, determined that the President should 
 not enjoy the satisfaction of a complete ac- 
 quittal, adjoiuned sine die without taking a 
 vote on the remaining articles, the crowd in 
 the galleries and corridors melted away, and 
 the momentous impeachment ended. 
 
 Quietly retiring to Tennessee at the expira- 
 tion of his Presidential term, Andrew Johnson 
 began to plan the most dramatic return to pub- 
 lic life recorded in American history. Offering 
 himself as a candidate for the United States 
 Senate, he entered heart and soul into the fierce 
 campaigns that followed, and xmdeterred by 
 reverses, delays, disappointments, and well- 
 nigh insurmountable obstacles, fought for the 
 only vindication he craved. At last, seven 
 years after the great trial, he entered the 
 Chamber which had witnessed his arraignment, 
 
 173 
 
DECISIVE BATTLES OF THE LAW 
 
 and standing before his former judges on the 
 very spot where his enemies had hoped to see 
 him crushed and humbled, and gazing steadily 
 into the eyes of Vice-President Wilson, he took 
 the oath of office as a Senator from Tennessee. 
 Then and not till then did the curtain fall 
 upon the first and only impeachment of a 
 President of the United States. 
 
VI 
 
 THE ALABAMA ARBITRATION: 
 AN INTERNATIONAL LAWSUIT 
 
 ^HE Hdtel de Ville of Geneva, Switzerland, 
 * an unpretentious public building of ancient 
 origin, became the centre of interest for at least 
 two of the great family of nations on June 15, 
 1872, and attracted the attention of the entire 
 diplomatic world, for on that day the arbitrators 
 of the Alabama claims were to meet within its 
 walls and attempt to settle an international 
 dispute which had more than once brought 
 England and America to the verge of war. Had 
 it been absolutely certain that the officials 
 would proceed with their work on the appointed 
 day, there wotild, perhaps, have been less gen- 
 eral interest in the event, but for months it had 
 been an open secret that England was in any- 
 thing but an amicable mood, and there were 
 rumors that she intended at the last mo- 
 ment to withdraw from the arbitration and 
 
 I7S 
 
DECISIVE BATTLES OF THE LAW 
 
 repudiate the treaty by which it had been au- 
 thorized. 
 
 But although the political sky was dark, a 
 fairer morning never dawned than that which 
 greeted Geneva on the day of trial. Long be- 
 fore noon a group of experienced newspaper 
 men, including several well-known English and 
 American special correspondents, gathered at 
 the Hdtel de Ville; but as they lounged about 
 its picturesque entrance, comparing notes on 
 the coming event, it was speedily discovered 
 that none of them possessed any inside informa- 
 tion. Beyond the fact that all the arbitrators 
 were in town, and that both the contending 
 nations were fully represented by close-mouthed 
 counsel, there was no news to report. Rumor 
 still had it, however, that England would re- 
 pudiate her agreement to arbitrate; and if she 
 did so, it was said that America would demand 
 judgment against her by default, no matter 
 what the consequences might be. There was 
 another report that the clash had already oc- 
 curred, and that the arbitrators had abandoned 
 their mission and would not even attempt to 
 hold a session; but this was soon contradicted 
 by the arrival of porters and messengers bearing 
 books and papers for the tribtmal, and as they 
 
 176 
 
THE ALABAMA ARBITRATION 
 
 carried their heavy burdens through the paved 
 coiut-yard to the cobble-stone stairway, up 
 which in early times the State dignitaries rode 
 their horses to the council-chamber, the journal- 
 ists hastily followed them, intent upon report- 
 ing every preliminary detail. At the door of 
 the " Salle des Conferences, " however, they 
 were summarily halted by a Swiss functionary in 
 scarlet and yellow, who politely but firmly in- 
 formed them that none but the arbitrators and 
 the English and American officials were to be 
 admitted to the audience - chamber. Disap- 
 pointing as this annotmcement was, it did not 
 discourage the special correspondents, who re- 
 lied on the influence of their journals to obtain 
 the usual privileges, little dreaming that in the 
 guarding of its secrets and in many other re- 
 spects the impending proceeding was to create 
 new precedents and furnish notable exceptions 
 to several well-established rules. Meanwhile, 
 all the reporters, great and small, remained in 
 the anteroom, watching the stacks of books 
 disappear through the guarded door, and vaguely 
 wondering how many of those ponderous tomes 
 the arbitrators had actually read. 
 
 The American Case, as the history of the 
 claims was called, was indeed a small library in 
 
 177 
 
DECISIVE BATTLES OF THE LAW 
 
 itself, consisting of no less than eight bulky 
 volumes, comprising more than five thousand 
 printed pages, and the English documents filled 
 three similar books of nearly three thousand 
 more. These eleven volumes, numerous sets of 
 which had been prepared in French as well as 
 in English, were, however, merely the prelimi- 
 nary pleadings which had been exchanged by 
 the parties when the tribunal of arbitration 
 had been formally organized on December 5th 
 of the previous year. Three months later the 
 agents of the respective governments had sub- 
 mitted "counter cases," and these supple- 
 mentary proofs had added six more volumes to 
 the record, of which England had contributed 
 four and America two. But although this mass 
 of evidence was discouraging to the laymen, it 
 was far less formidable than it looked, and every 
 well equipped correspondent of the press was 
 already more or less familiar with the American 
 Case, the contents of which had exasperated 
 England to the point of repudiating a solemn 
 treaty. Indeed, the wide-spread discussion of 
 those volumes had given the foreign press a 
 knowledge of the controversy which it would 
 never have otherwise possessed, and as public 
 attention had been particularly attracted to 
 
 178 
 
THE ALABAMA ARBITRATION 
 
 America's documents, the story of her grievance 
 was far more generally understood than was 
 England's defence. 
 
 That story was ably told in the official pages 
 — ^not, perhaps, with all the allowances and re- 
 serves which a wholly judicial review would de- 
 mand — ^but with earnest conviction and scrupu- 
 lous fidelity. It opened with a recital of the 
 events leading to the Civil War in the United 
 States, and disclosing the prompt request of the 
 Secretary of State that no decisive action should 
 be taken by the English government touching 
 its attitude towards the contending forces until 
 the newly appointed American minister, then 
 on his way to London, could communicate the 
 views of his government. Nevertheless, it ap- 
 peared that the first news which had greeted Mr. 
 Adams on his arrival had been the Queen's 
 proclamation of neutrality, and before he had 
 been long at his post the unfriendly attitude 
 of official England became painfully apparent. 
 Another American had, seemingly, more in- 
 fluence with the English government than the 
 accredited diplomat, for Captain James Bulloch, 
 late of the United States navy, was busy at the 
 port of Liverpool executing commissions for the 
 
 Confederate government, and all Mr. Adams's 
 13 179 
 
DECISIVE BATTLES OF THE LAW 
 
 oflficial protests against his activities fell upon 
 tmheeding ears. In vain he reported that a 
 vessel called the Oreto, in course of construction 
 at the Miller yards at Birkenhead, was designed 
 for a hostile errand against the United States. 
 The Foreign Office was polite but incredulous, 
 replying that official inspection by the customs 
 officials failed to disclose any irregularity or to 
 confirm the minister's suspicions in any manner. 
 Undiscouraged by this rebuff, Mr. Adams ad- 
 vised Lord Russell of the situation day after 
 day, by word of mouth and written commtmica- 
 tion, and warned him of the inevitable result, 
 until finally the Oreto sailed away to become the 
 Florida, and begin the work of driving American 
 commerce from the seas. 
 
 Meanwhile the keel of a mysterious vessel 
 known as the 2qo had been laid at the Lairds' 
 yards in Birkenhead, and Mr. Adams soon re- 
 ported Captain Bulloch's interest in her, follow- 
 ing this with surprisingly accurate details of her 
 construction and mission; but all the investiga- 
 tions of the English officials failed to tmearth 
 what Mr. Adams's agents had readily discovered. 
 The 2go, it was admitted, might possibly be 
 adapted for a war- vessel, but there were no guns 
 upon her, and her mysterious numerals merely 
 
 1 80 
 
THE ALABAMA ARBITRATION 
 
 indicated her dock-yard name, she being the 
 290th vessel constructed by the Lairds/ Her 
 real name, according to the records, was the 
 Enrtca, hy which she had been regtdarly chris- 
 tened at her launching, and there was, to the 
 official mind, no cause for her detention. All 
 this was solemnly reported by the Foreign Ofifice, 
 and it was almost impossible for the American 
 minister to appear unconscious of the veiled 
 insincerity of these oflficial communications. 
 But Mr. Adams shut his ears to all that ruffled 
 the temper, and, keeping his eyes wide open, 
 began preparing a case against Great Britain, 
 knowing that sooner or later there must be a 
 day of reckoning. In order that there might be 
 no mistake, however, as to the legal bearing 
 of his proofs, he submitted them to an English 
 jurist of high authority, who expressed his 
 opinion that the laws of England were being 
 violated. Fortified with this decision, he once 
 more visited the Foreign Office and called the 
 facts and the legal opinion directly to Lord 
 
 ■ By an extraordinary coincidence the existing United States 
 battle-ship Alabama was the 290th vessel constructed by the 
 Cramps at Philadelphia, and was known by that number in the 
 yards. Messrs. Cramp inform the writer that this was not the 
 result of design, but of business sequence. Their 289th vessel 
 was a ferry-boat called Pittsburg, the 290th the Alabama, and 
 the 291st the Japanese cruiser Kasagi. 
 
 181 
 
DECISIVE BATTLES OF THE LAW 
 
 Russell's attention. Representations of this nat- 
 ure, of course, could not well be disregarded 
 by the government, but it was slow to act upon 
 them; and Captain Bulloch, receiving inside in- 
 formation that the authorities were contem- 
 plating the seizure of his vessel, took advantage 
 of the delay to arrange a "trial trip" for the 
 Enrica, which proved so eminently satisfactory 
 that she never returned to her dock. After a 
 short stay at another British port she sailed for 
 the Azores, where an English steamer met her 
 with her arms and equipment, and with an 
 English crew she sped away as the Alabama to 
 capture and destroy all the unarmed commercial 
 marine of the United States that crossed her 
 path. 
 
 Meanwhile, Mr. Adams continued to exercise 
 the utmost vigilance in England. With even 
 temper, exhaustless patience, and faultless phrase 
 he warned the Foreign Office of the Confederate 
 plans, and unremittingly supplied unwelcome 
 information touching the infractions of English 
 and international law, studiously disregarding 
 official discourtesies, and remaining calm under 
 exasperating hinderances and delays. Once, and 
 once only, was he provoked into an exhibition 
 of feeling, but when it became probable that two 
 
 182 
 
THE ALABAMA ARBITRATION 
 
 iron-clad rams whose character and purpose he 
 had clearly exposed to the authorities would 
 soon be delivered to Captain Bulloch and follow 
 the Alabama, he closed his review of the facts 
 with the significant utterance, "It would be 
 superfluous for me to point out to your Lordship 
 that this is war. ' ' Those words penned by a man 
 whose reserve, dignity, and patience had already 
 impressed Lord RusseU startled him to instant 
 action, and the outcome of the war being no 
 longer in doubt, the British government found 
 no difficiolty in enforcing the law. 
 
 Such, in brief, was the history of the events 
 recorded in the American Case. It was not 
 this statement, however, at which England had 
 taken offence. The facts were substantially 
 admitted, but the claims under the facts were in 
 serious dispute, and the complications which 
 threatened the arbitration with disaster did not 
 appear in the formal record. 
 
 At the close of hostilities it had become Mr. 
 Adams's duty to call attention to the claims of 
 his government for the depredations committed 
 by the Alabama and many other vessels wholly 
 or partially equipped in England or sheltered 
 in British ports, but his presentation of this 
 matter at once met with a cold reception at 
 
 18.3 
 
DECISIVE BATTLES OF THE LAW 
 
 the Foreign Office. Again and again he cour- 
 teously invited Lord Russell's consideration of 
 the question without eliciting any satisfactory 
 response, and finally it was intimated that her 
 Majesty's ministers did not desire that the 
 matter should be further pressed upon their 
 attention, as the issues raised did not admit of 
 discussion. With courtly phrase the expe- 
 rienced diplomat regretted his inability to 
 comply with their Lordships' suggestion, or to 
 accept the conclusions at which they had 
 arrived. He had laid the foundations of his 
 case with infinite skill and could well afford to 
 wait, but he had no intention of allowing the 
 issues to be forgotten. From time to time, 
 therefore, he renewed his representations, ad- 
 vising the ministry that they were made in the 
 most amicable spirit and that there was no 
 v/form of friendly arbitration or adjustment to 
 which the United States would not willingly 
 agree. These pacific advances, however, met 
 with no encouragement from the British gov- 
 ernment. There was, in the opinion of official 
 England, nothing to arbitrate, and it was con- 
 fidently believed that America had no serious 
 intention of insisting upon any substantial 
 settlement of the matter in dispute. 
 
 184 
 
THE ALABAMA' ARBITRATION 
 
 Meanwhile pubUe opinion in the United States 
 was intensely hostile to England, and nothing 
 but the experience of a long and bloody war kept 
 the popular feeling in check. Indeed, there had 
 been more than one suggestion at the close of 
 hostilities, that, with a veteran army of more than 
 a million men in the field arid the strongest navy 
 afloat, the time was ripe to enforce recognition of 
 the claims ; but better counsels had prevailed and 
 the whole question was allowed to remain in 
 abeyance awaiting diplomatic treatment. Nev-, 
 ertheless, the strained relations between the two 
 countries continued, and when a change in the 
 British ministry occurred and it became evi- 
 dent that America was not content to let the 
 matter rest, the Johnson-Clarendon treaty was I 
 negotiated and submitted to the Senate at Wash- 
 ington. When it was discovered, however, that 
 this treaty was modelled upon the old Claims 
 treaty of 1853, and merely provided for the 
 reciprocal submission of individual claims by 
 citizens of each country against the other, its 
 fate was sealed. In a speech of great power 
 Sumner attacked it in the Senate, denouncing 
 it as wholly incompatible with the dignity of the 
 United States and utterly ineffective to secure a 
 proper reconciliation. America would never win 
 
 185 
 
DECISIVE BATTLES OF THE LAW 
 
 the respect of England or of any other nation, 
 he maintained, by accepting such a disposition 
 of a national question. The treaty merely pro- 
 vided for the adjustment of a bundle of indi- 
 vidual claims — ^the real issues were not touched. 
 There was not a word in the entire document 
 which recognized any duty that England had 
 owed to the United States in the past, or 
 which afforded any guarantee for the future, nor 
 was there even a suggestion of regret on Eng- 
 land's part for the injuries inflicted upon the 
 United States, or any indication as to who the 
 real complainant was. No such treatment of 
 the grave questions at issue would be tolerated 
 in America, he declared, and the Senate prompt- 
 ly supported his view by rejecting the treaty by 
 an overwhelming vote, only one member being 
 recorded in its favor. 
 
 This emphatic action startled and irritated 
 the British ministry and aroused deep resent- 
 ment throughout the country. The mere sug- 
 gestion that England ought to apologize for her 
 conduct rendered further discussion impossible 
 in the opinion of most Englishmen, and the very 
 idea of such presumption would have been 
 laughed at had it not been so annoying. Amer- 
 ica, it was felt, had been pressing the considera- 
 
 i86 
 
THE ALABAMA ARBITRATION 
 
 tion of her claims for years, and when at last 
 England had consented to discuss the matter 
 the Senate had treated the concession with con- 
 tempt. Natural as this conclusion was, it evi- 
 denced a complete misunderstanding ot the 
 nature of America's grievance, and for this the 
 United States representatives were unquestiona- 
 bly to blame, for they should never have ap- 
 proved a treaty so entirely inadequate to meet 
 the national demands. Still, the mischief was 
 done, and it would have been utterly useless 
 to attempt further negotiations in the existing 
 state of public opinion on both sides of the 
 Atlantic. The subject was therefore allowed to 
 drop until 1871, when it was suddenly brought , 
 to a head by as skilful a move as was ever cred- 
 ited to a department of state. 
 
 In a message to Congress, President Grant 
 reported that as Great Britain did not appear 
 willing to concede that the United States had 
 any just cause of complaint, he recommend- \> 
 ed that a commission be appointed to take 
 proof of the private claims for damages suffered 
 from the Alabama or other vessels, with au- 
 thority to settle the same by purchase, so that 
 the United States might own and control all such 
 demands against Great Britain. This quiet and 
 
 187 
 
DECISIVE BATTLES OF THE LAW 
 
 significant manoeuvre, coupled with the fear 
 that the Franco-Prussian quarrel might draw 
 England into war and render her own views of 
 neutrality highly inconvenient, almost imme- 
 diately resulted in unofficial advances from the 
 British government, whose indifference towards 
 the subject in dispute gave way to an undis- 
 guised anxiety for a prompt adjustment. 
 
 The preliminaries of this second negotiation 
 were conducted with great prudence, every step 
 being carefully considered, both sides realizing 
 that another failure would arouse lasting re- 
 sentment and embarrassment. Private un- 
 official conferences finally paved the way for the 
 appointment of a Joint High Commission em- 
 powered to meet at Washington and negotiate 
 a treaty for the settlement of all differences ; and 
 when the distinguished commissioners agreed 
 upon a treaty providing for arbitration, it was 
 confidently supposed that all the troublesome 
 questions had been forever laid at rest. 
 
 Certainly the document approved by the Joint 
 High Commissioners seemed to meet all the 
 objections which had been so forcibly tirged 
 against the Johnson-Clarendon treaty. In the 
 first place, its expressed purpose was to provide 
 for "the amicable adjustment of all causes of 
 
 i88 
 
THE ALABAMA ARBITRATION 
 
 difference between the two countries" — a dis- 
 tinct recognition of the national character of the 
 dispute. In the second x^lace, it specifically re- 
 ferred to " the claims of the United States gen- 
 erally known as the Alabama claims," and ex- 
 pressed " the regret felt by her Majesty's govern- 
 ment for the escape, under whatever circumstances, 
 of the 'Alabama' and other vessels from British 
 ports and for the depredations committed by those 
 vessels" — a most acceptable substitute for the 
 "impossible" apology. Next it laid down cer- 
 tain rules or principles of international law upon 
 which it should be assumed that England had 
 undertaken to act in the past, and which both 
 nations agreed to observe in the future, and 
 finally it provided for an impartial board of 
 arbitration with ample powers to adjust all out- 
 standing grievances. In a word, the document 
 was a complete diplomatic triumph for the 
 United States, and a virtual acknowledgment 
 of the justice of the issues for which it had so 
 long contended. 
 
 The arbitration clauses in particular left noth- 
 ing to be desired. Their recitals read that " in 
 order to remove all complaints and claims on the 
 part of the United States, and for the speedy 
 settlement of such claims," the contracting 
 
 189 , 
 
DECISIVE BATTLES OP THE LAW 
 
 parties agreed that all said claims be referred to 
 a tribunal of arbitration consisting of five per- 
 sons to be appointed respectively by the Presi- 
 dent of the United States, the Queen of England, 
 the King of Italy, the President of the Swiss 
 Confederation, and the Emperor of Brazil, who 
 should meet at Geneva " to examine and decide 
 all questions which should he laid before them by 
 either Great Britain or the United States," and 
 that the award of the arbitrators should be ac- 
 cepted as a full, perfect, and final settlement of 
 all claims, whether the same were or were not laid 
 before the tribunal. This disposition of the mat- 
 ter naturally met with the hearty approval of all 
 Americans, and the Senate having promptly 
 ratified the treaty, the arbitrators were appoint- 
 ed and the preparation of the American Case 
 assigned to Mr. J. C. Bancroft Davis, the First 
 Assistant Secretary of State, whose thorough 
 study of the subject eminently qualified him for 
 the task. 
 
 Mr. Davis had, however, no sooner exchanged 
 his formidable treatise for the British Case 
 prepared by the English agent. Lord Tenterden, 
 than the London press began a furious attack 
 upon the nature of the American claims, and a 
 storm of indignant protest immediately followed. 
 
 I go 
 
THE ALABAMA ARBITRATION 
 
 According to the British High Commissioners, 
 it had been distinctly understood that America 
 had waived what was known as the national or 
 indirect claims arising out of the prolongation of 
 the war, the increased payment of insurance, the 
 transfer of the American merchant marine to 
 the British flag, and other similar causes ; yet in 
 the face of this understanding the American 
 Case called all these matters to the attention 
 of the tribimal, and upon them based an enor- 
 mous demand for damages. The American rep- 
 resentatives protested that they had not waived, 
 and had no right to waive, any of their country's 
 claims, direct or indirect, and that the treaty 
 itself distinctly provided for the settlement " of 
 all differences" by arbitrators authorized "to 
 examine and decide all questions that should 
 be laid before them by either government." It 
 was, however, pointed out that during the pre- 
 liminary negotiations the indirect claims had 
 been fully discussed, with the result that the 
 protocol of the treaty recited that the United 
 States estimated its direct claims at fourteen 
 million dollars, and " in the hope of an amicable 
 settlement" made no estimate of the indirect 
 losses, "without prejudice, however, to the 
 right to indemnification on their account in the 
 
 IQI 
 
DECISIVE BATTLES OF THE LAW 
 
 event of no such settlement being made." The 
 " amicable settlement " contemplated in this re- 
 cital had been effected, according to the British 
 Commissioners, by the agreement to arbitrate, 
 and the United States had therefore no right to 
 claim damages for the indirect losses or to sub- 
 mit them in any manner to the Court. 
 
 There was unquestionably much force in this 
 contention, and in view of the contradictory 
 language of the treaty and the disagreement be- 
 tween the Joint High Commissioners as to its 
 meaning, the United States was willing to leave 
 the whole matter to the arbitrators and let them 
 decide what was and what was not properly in 
 suit. The English newspapers, nevertheless, de- 
 nounced the whole proceeding, and, charging 
 bad faith, urged the government to repudiate 
 the arbitration unless the United States with- 
 drew the objectionable items. In other words, 
 one of the litigants, and not the court, was to 
 pronounce judgment on part of its adversary's 
 case — or there would be no trial! Not all Eng- 
 lish statesmen, however, endorsed this reckless 
 programme. Able speakers in Parliament called 
 attention to the fact that one blunder could not 
 be cured by making another. If the British 
 Commissioners were correct in their contention 
 
 192 
 
THE ALABAMA ARBITRATION 
 
 that the indirect claims had been waived, they 
 should have seen to it that they were expressly 
 excluded by the treaty, instead of employing 
 ambiguous language and opening the way for a 
 misunderstanding. In any event, England could 
 lU afford to insist upon her contentions at the 
 expense of a solemn national engagement. Un- 
 answerable as such arguments were, they were 
 disregarded, and, public opinion supporting the 
 government, Lord Tenterden was instructed to 
 file England's "counter case" under protest 
 and to intimate that his government would 
 not further submit to the jurisdiction of the 
 Court. At this juncture negotiations were at- 
 tempted to remove the difficulties, but the 
 charges which had been made were of such a 
 nature that very little progress was possible 
 along those lines, and as the day of trial 
 approached, it became evident that England 
 was not unwilling to have the arbitration 
 fail. 
 
 Such was the situation when the contending 
 governments faced each other in Geneva on that 
 glorious June morning in the year 1872, and 
 among the excluded journalists, anxiously await- 
 ing the outcome, opinion was divided as to 
 whether the Salle des Conferences was about to 
 
 193 
 
DECISIVE BATTLES OF THE LAW 
 
 witness a union of the nations or an interna- 
 tional breach of promise. 
 
 Meanwhile all the parties to the greatest in- 
 Itemational lawsuit in history were assembled in 
 '/ j a large, high-ceilinged, plainly furnished room, 
 with three windows looking out upon the 
 Botanical Gardens. Dark-red curtains hung at 
 the windows, and the rest of the chamber was 
 decorated in harmony with the draperies, giving 
 it a dvill, formal, and ceremonious appearance, 
 in keeping with the curved judicial bench erect- 
 ed on a low platform before the windows. Fac- 
 ing this a semicircle of official desks extended to 
 the right and left of the entrance and enclosed 
 several tables covered with books and papers. 
 At the centre of the judicial desk, with his 
 back to the windows, sat a tall, stout man with 
 short side-whiskers, a bald head, and a round, 
 pleasant face. Although evidently weU ad- 
 vanced in age, he carried his years with an un- 
 mistakable air of distinction, and his clear eyes 
 and alert bearing bespoke a man in his intel- 
 lectual prime. This was Count Frederic Sclopis, 
 the arbitrator appointed by the King of Italy 
 and unanimously chosen president of the tribu- 
 nal, not merely by reason of his seniority, but in 
 recognition of his unquestioned attainments as 
 
 194 
 
THE ALABAMA ARBITRATION 
 
 a jurist, he being the author of one of the most 
 famous legal treatises in Italy. 
 
 Immediately to his left sat the short, stoop- 
 shotildered, studious-looking Brazilian ambas- 
 sador to France, Baron d'ltajuba, a diplomat 
 of forty years' experience, nominated by the 
 Emperor of Brazil. On the other side of the 
 president sat the youngest of the arbitrators, 
 Jacob Staempfli, a self-made man of strong in- 
 dividuality and marked ability, whose original 
 training had been in the law, but who had held 
 almost every important position under the Swiss 
 government, including the Presidency, to which 
 he had more than once been called. Of all the 
 arbitrators, with the exception of Mr. Adams, 
 this serious-minded statesman was unquestion- 
 ably the most thoroughly prepared, for he had 
 retired to his country-seat with all the official 
 documents months before the tribtmal met and 
 conscientiously devoted himself to the case until 
 he had completely mastered it in every detail. 
 There was, however, nothing distinguished in 
 his personality, and his heavy, stolid, Teutonic 
 face contrasted unfavorably with the clean-cut, 
 handsome features of England's representative. 
 
 Sir Alexander Cockbum, Lord Chief- Justice 
 of England, the arbitrator nominated by the 
 14 19s 
 
DECISIVE BATTLES OF THE LAW 
 
 Queen, was in point of scholarship and ex- 
 perience eminently qualified for the important 
 duty to which he had been assigned, but his 
 florid face and aggressively superior manner 
 indicated a temper and a temperament ill adapt- 
 ed to diplomatic success. AflEable and couiv 
 teous enough when nothing was at stake, he was 
 utterly unable to bear opposition, and criticism 
 fairly enraged him. Moreover, he unfortunately 
 chose to regard himself as England's chief de- 
 fender rather than as her chief jurist, and having 
 come to Geneva convinced that America was 
 seeking an undue advantage from the treaty, he 
 had no inclination to exert himself in saving the 
 situation. In fact, he had already determined 
 on a course which was well calculated to bring 
 the proceedings to a speedy close; but in per- 
 mitting himself to believe that this result was 
 inevitable, he under-estimated the skill and re- 
 sourcefulness of his adversaries, who had every 
 reason for wishing the arbitration to proceed. 
 They knew that the treaty by which it had been 
 authorized had placed the United States in the 
 position of plaintiff and forced England into the 
 role of an apologetic defendant, and that the 
 principles of international law admitted and 
 guaranteed were of the first importance, and 
 
 196 
 
THE ALABAMA ARBITRATION 
 
 that every detail of the case had been carefully- 
 prepared. No one appreciated the strategic 
 value of these points better than the American 
 arbitrator, Charles Francis Adams, and of all 
 those gathered at the scene of action he had the 
 deepest personal interest in the result. This 
 was the moment for which he had anxiously 
 waited and for which he had prepared himself 
 year after year, and he determined not only that 
 America should retain every advantage she had 
 gained, but that England should be left no loop- 
 hole of escape. 
 
 No abler representative than Mr. Adams could 
 possibly have been selected for the work at hand, 
 and his temperament was exactly suited to the 
 dual r61e of judge and advocate which his duties 
 forced upon him. A less accomplished French 
 scholar than Sir Alexander Cockbum, he was 
 far more cosmopolitan and broad-minded, and 
 among cultivated men his attractive personality 
 and intellectual tastes gave him a distinct ad- 
 vantage over the irascible Chief -Justice. In- 
 deed, England and America were perfectly per- 
 sonified by their respective arbitrators. Both 
 were keen, experienced lawyers, mentally well 
 matched, and equally good fighters; but the 
 moment they were pitted against each other 
 
 197 
 
DECISIVE BATTLES OF THE LAW 
 
 the national characteristics were strongly in 
 evidence. 
 
 At the semicircle of desks before the judicial 
 bench sat the counsel — William M. Evarts's thin, 
 sharp, New England face contrasting strangely 
 jwith Sir Roundell Palmer's clerical countenance. 
 Beside Mr. Evarts — ^then at the height of his 
 remarkable professional career — sat Morrison 
 Waite, later Chief -Justice of the United States, 
 and near them were General Caleb Cushing and 
 Mr. Charles C. Beaman, Jr., whose special study 
 of the case at bar had made them expert ad- 
 visers for the United States. Indeed, General 
 Cushing was in age, diplomatic experience, and 
 knowledge of the State Department's business 
 the senior counsel for America, and fairly main- 
 tained that position by his active participation 
 in the proceedings. At the other desks sat 
 Professor Mountague Bernard of counsel for 
 England, J. C. Bancroft Davis and Lord Ten- 
 terden, the official agents for the respective 
 governments, and the remaining places were 
 occupied by the private secretaries and trans- 
 lators — aU young men of legal or diplomatic 
 training.* 
 
 ' The American secretaries were Messrs. Brooks Adams, John 
 Davis, Frank W. Hackett, W. F. Pendrick, and Edward T. 
 
 198 
 
. THE ALABAMA ARBITRATION 
 
 Such was the company which Count Sclopis 
 called to order at noon on June 15, 1872, and a 
 more attentive audience probably never greeted 
 a presiding officer, for the fate of the treaty 
 trembled in the balance as the American agent 
 rose, and, claiming the attention of the chair, 
 filed the printed argument required by the niles. 
 The die was then cast, for with that act America 
 had complied with the last formality and stood 
 prepared for action. What response would 
 England make to the challenge? The question 
 was quickly answered, for Lord Tenterden im- 
 mediately rose and moved that the tribunal ad- 
 journ for eight months — a proposition eqtiivalent 
 to adjourning siite die and ending the arbitration 
 then and there. This emergency, however, had 
 been thoroughly discussed by the American 
 representatives, and recognizing that England 
 had determined to block the proceedings, they 
 stood prepared to force her hand. Acting by 
 prearrangement with his associates, Mr. Davis 
 opposed the English agent's motion, and sug- 
 gested as an alternative an adjoumraent for two 
 days only. This counter-proposition was quick- 
 
 Waite: Great Britain's secretaries were Messrs. Sanderson, 
 Markheim, Villiers, Langly, and Hamilton. The secretary of 
 the Arbitration was Monsieur Alex. Favrot. 
 
 199 
 
DECISIVE BATTLES OF THE LAW 
 
 ly accepted, and within an hotir of their arrival 
 aU the officials were on their way from the H6tel 
 de Ville, pursued by the representatives of the 
 press, who in default of other information ad- 
 vised their journals that the officials had dis- 
 persed and that the fate of the arbitration was 
 sealed. 
 
 No such fiasco, however, was contemplated by 
 the American representative. Calling the other 
 arbitrators together informally, he outlined a 
 proposition that they should deHver an extra- 
 judicial opinion that the national or indirect 
 claims afforded no proper basis for an award by 
 the tribvinal, he himself offering to vote in favor 
 of their rejection. No more skilftil'move than 
 this was ever recorded in diplomatic history, 
 for without necessitating any withdrawal of 
 
 /America's claims, it forced England to accept a 
 judicial disposition of them, which was what she 
 
 \had positively declined to do. Moreover, it 
 demonstrated that America was seeking no vm- 
 due advantage from the wording of the treaty, 
 and was ready to bow to the authority of the 
 tribunal, only asking that the decision be that 
 of the court to which she had submitted her 
 rights, and not that of her adversary. Had 
 England voltmtarily adopted this course, she 
 
 200 
 
THE ALABAMA ARBITRATION 
 
 might and probably would have succeeded in 
 having the disputed claims rejected and thereby- 
 gained a notable victory. Instead of this, she 
 was placed in the unenviable position of having 
 threatened the violation of an international 
 agreement because her demands were not com- 
 plied with, thereby exhibiting not only disregard 
 of her national obligations, but also lack of con- 
 fidence in the Court before which the other issues 
 in her case were to be heard — an error which 
 she never retrieved during the subsequent pro- 
 ceedings. Although a judicial disposition of 
 the claims was not to their liking, Sir Alexander 
 Cockbum, Lord Tenterden, and their counsel 
 had no choice but to accept the situation, and 
 a document was immediately drawn embody- 
 ing Mr. Adams's proposal, which, after revision 
 by the lawyers, was published as the individiial 
 and collective judgment of the Court, and the 
 government at Washington having promptly 
 ratified it, England was left without excuse for 
 withdrawing from or further delaying the trial 
 of the real points at issue. 
 
 This unexpected turn of affairs placed Sir 
 Alexander Cockbum in a most embarrassing 
 position. So sure had he been that the arbitra- 
 tion would prove abortive that he had come to 
 
 20 1 
 
DECISIVE BATTLES OP THE LAW 
 
 I Geneva wholly unprepared for any lengthy so- 
 ' joum and almost entirely ignorant of the merits 
 of his case, and when the sessions were resumed 
 on the morning of June 29th, he speedily found 
 himself at a disadvantage. Annoying as this 
 predicament Would have been to any man, it 
 was especially irritating to one of Cockbum's 
 temperament, but the hearings could not be 
 postponed to enable him to study the case, and 
 plunging into the sea of details, he soon found 
 himself beyond his depth, and began striking 
 out right and left in a wild effort to keep his head 
 above water. 
 
 By mutual agreement it had been determined 
 to consider the evidence touching each vessel 
 complained of in the American documents sep- 
 arately, and to reach a conclusion as to Eng- 
 land's liability, reserving the question of damages 
 for later discussion. Under this method of pro- 
 cedure the history of the Oreto, otherwise known 
 as the Florida, was the first to occupy the atten- 
 tion of the Court, and difficult questions of law 
 were immediately raised which required clear 
 analysis and careful deliberation. Sir Alexander 
 did not, however, attempt to reason with his 
 associates or persuade them to his point of view. 
 With the voice of authority he endeavored to 
 
 202 
 
THE ALABAMA ARBITRATION 
 
 force his conclusions upon them, and his dis- 
 courteous contradictions and ill-disguised con- 
 tempt of " foreign " opinion were wofuUy lacking 
 in good taste. Through long service in a court 
 where his word was law he had become in- 
 tolerant of the opinions of others, and utterly 
 unable to adapt his conduct to the exigencies 
 of the moment. Indeed, the hearings had not 
 proceeded far before he attempted to ride rough- 
 shod over the very man whose conscientious and 
 unprejudiced study of the case entitled him to the 
 highest possible consideration. Mr. Staempfli, 
 however, was not a man whom it would have 
 been possible to browbeat with impunity under 
 any circumstances, and his piercing dark eyes 
 instantly responded in unmistakable challenge 
 to Cockbum's first domineering utterance. From 
 that moment the two men were in almost con- 
 stant collision, and though the forms of courtesy 
 were observed, nearly every interchange be- 
 tween them threatened a serious outbreak. The 
 mere idea of the representative of an inland 
 state having any notions on maritime law was 
 absurdly preposterous to the Chief -Justice's 
 thinking, and he made no secret of his views in 
 this regard. Had he, however, possessed even 
 moderate tact. Sir Alexander could not have 
 
 203 
 
DECISIVE BATTLES OF THE LAW 
 
 failed to perceive that his overbearing conduct 
 was not only making an open enemy of one of 
 the non-partisan arbitrators, but was seriously 
 prejudicing the other two, for Mr. Staempfii had 
 prepared careful opinions upon all the main 
 issues of the case, and his thorough familiarity 
 with the subject had impressed his colleagues 
 and won their respect. Count Sclopis and 
 Baron d'ltajuba were mild-mannered men of 
 great personal dignity to whom bullying was 
 intolerable, and they noted the Englishman's 
 treatment of the Swiss arbitrator with astonish- 
 ment and marked disapproval. But Cockbum 
 was either ignorant or careless of the prejudice 
 he was creating, and day after day he blundered 
 along, trampHng upon opinions, offending sensi- 
 bilities, making every question a personal issue, 
 and generally misconducting himself until he 
 had estranged or offended every one of his 
 associates, and not a session passed without 
 witnessing something very like a quarrel. 
 
 Mr. Adams, on the other hand, adopted an 
 entirely different course. Recognizing that the 
 success of his cause depended upon the repre- 
 sentatives of Italy, Brazil, and Switzerland, he 
 gave careful consideration to their opinions, 
 welcomed their suggestions, answered their ques- 
 
 204 
 
THE ALABAMA ARBITRATION 
 
 tions, and avoided controversy as far as possible. 
 To the English Arbitrator he was invariably 
 courteous, never displaying the slightest irrita- 
 tion, but never failing to respond effectively to 
 his attacks with facts and figures which demon- 
 strated a convincing familiarity with the sub- 
 ject and influenced the judgment of the Court. 
 Indeed, it was not long before the American 
 diplomat became the controlling force in the 
 arbitration, and the discovery of this fact did not 
 serve to soothe Sir Alexander Cockbum's tem- 
 per. Moreover, the cause was going decidedly 
 against him, for in considering the record of the 
 Florida the majority opinion had been adverse 
 to England's interests. 
 
 These reverses and the hot weather combined 
 to exasperate the Chief -Justice, and his en- 
 counters with his associates became more and 
 more frequent as the case proceeded. Every 
 day witnessed sharp exchanges between him 
 and Mr. Staempfli, and with Mr. Adams he 
 kept up a running fight in which his increasing 
 irritability often asstmied the form of down- 
 right affront. 
 
 Finally it was decided that the legal chani- 
 pions should have a field-day, and Sir Roundell 
 Palmer delivered a speech of considerable pro- 
 
 205 
 
DECISIVE BATTLES OF THE LAW 
 
 fundity upon the law of the case. Unfor- 
 tunately for him, however, it was his advice that 
 'had governed the action or inaction of the 
 Foreign Office during the Civil War, and as the 
 main question before the tribunal was the 
 soundness of that advice, he was at a disad- 
 vantage with his audience which it was difficult 
 for him to overcome. 
 
 Mr. Evarts followed with an argument of 
 great power, which was repeatedly interrupted 
 by impatient and sometimes scoffing questions 
 from the Chief -Justice. But here again Sir 
 Alexander damaged his cause, for although his 
 knowledge of the laws of England was au- 
 thoritative, and his extensive information con- 
 cerning American diplomatic precedents might 
 have been utilized most effectively, he displayed 
 such bad judgment in handling his material that 
 the opportunity was lost. Moreover, the able 
 advocate whom he undertook to bait had made 
 an exhaustive study of the case, and his answers 
 were so cool and at times so sharp that the ques- 
 tioner was frequently left disconcerted. 
 
 Mr. Evarts's argument was delivered in Eng- 
 lish, but General Caleb Gushing was a French 
 scholar of considerable proficiency, and his ad- 
 dress, which was a masterpiece of tact, illus- 
 
 206 
 
THE ALABAMA ARBITRATION 
 
 trated the difference between the EngHsh and the 
 American attack. Sir Rotindell Palmer had 
 instructed his hearers upon EngHsh law with a 
 scholarship which left little to be desired. But 
 however satisfactory his discourse may have 
 been to the EngHsh Arbitrator, who needed no 
 persuasion, there is every indication that it 
 failed to convince or even to interest the rep- 
 resentatives of Brazil, Switzerland, and Italy. 
 Mr. Gushing proceeded on entirely different lines. 
 Without attempting any technical discussion he 
 immediately entered upon a broad review of 
 international duties, calling attention to the 
 Italian laws, with which he showed a familiarity 
 as agreeable as it was interesting to the venera- 
 ble President Cotmt Sclopis. Next he com- 
 mented upon and commended the Brazilian laws, 
 demonstrating that they recognized the prin- 
 ciples of international comity for which America 
 was contending; and then taking up the Swiss 
 laws, he showed hpw her statesmen had ob- 
 served and enforced neutrality under geo- 
 graphical and political sturoundings of peculiar 
 difficulty. A less skilful speaker might have 
 injured his cause by an ad hominem argument 
 of this character, but the entire address was so 
 gracefully and artlessly delivered that its strat- 
 
 207 
 
DECISIVE BATTLES OF THE LAW 
 
 egy was never offensive and its appeal was far 
 from lost. The very tactfulness of such an 
 approach, however, fretted Sir Alexander, and 
 his antipathy for the speaker, which had been 
 smouldering throughout the sessions, flared into 
 open hostility before the arbitrators went into 
 secret session to consider their award. 
 
 Up to this time not one word of news had been 
 obtained by the indefatigable journalists who 
 daily thronged the H6tel de Ville, and it is 
 probable that never before had the secrets of 
 a great international litigation been so strictly 
 kept. Not even a rumor of the bitter personal 
 struggle that had been fought behind the closed 
 doors for over two months had fotind its way 
 into print, and although the relations between 
 the English Arbitrator and the other officials had 
 become so strained that they virtually never met 
 except officially, no hint of this condition of af- 
 fairs had publicly appeared when the arbitrators 
 met on September 14th, to publish their award. 
 
 This time the Salle des Conferences was crowd- 
 ed with guests, for the Geneva Conseil d'Etat 
 had been invited to witness the ceremony, and 
 the members of that body, dressed in official 
 black, were assigned positions behind the ju- 
 dicial desk. 
 
 208 
 
THE ALABAMA ARBITRATION 
 
 At the centre tables sat the counsel and the 
 agents, and the desks about them were occu- 
 pied by ladies related to the various officials, 
 while behind them were grouped the yoving 
 secretaries and translators. At noon Cotint 
 Sclopis assumed the president's chair, and with 
 him appeared Mr. Adams, Mr. Staempfli, and 
 Baron d'ltajuba, but the place on the president's 
 extreme left, usually occupied by Sir Alexander 
 Cockbum, was vacant, and minute after minute 
 slipped by without witnessing his appearance. 
 Finally at the end of nearly an hour's waiting 
 he arrived, and G^unt Sclopis proceeded to an- 
 nounce the award, which was in many respects a 
 complete surprise. 
 
 England was held responsible for all the 
 depredations of the Florida, the Alabama, and 
 their tenders or atixiliaries, and for some of the 
 injtiries caused by the Shenandoah, and fifteen 
 million five hundred thousand dollars was award- 
 ed the United States. With an admirable dis- 
 play of fairness, however, and in a strictly 
 judicial spirit, Mr. Adams had decided against 
 the contentions of his own country in the cases 
 of the Georgia, the Sumter, the Nashville, the 
 Sallie, the Tallahassee, the Chickamauga, the 
 Music, the Jefferson Davis, the Boston, and the 
 
 209 
 
DECISIVE BATTLES OF THE LAW 
 
 Joy, voting only against England in the cases 
 of the Alabama, the Florida, the Retribution, 
 and the Shenandoah. 
 
 Sir Alexander Cockbum, on the other hand, 
 had voted against the United States and in 
 favor of England in every instance except the 
 Alabama, and then only for reasons of his own, 
 with which the rest of his associates disagreed. 
 Moreover, he refused to sign the award at all, 
 and the moment Count Sclopis finished reading 
 it he rose, picked up his hat, and to the intense 
 astonishment of the assembled company, march- 
 ed out of the room without even a word of fare- 
 well to the men with whom he had been daily 
 associated for more than two months. 
 
 This extraordinary discourtesy was not, how- 
 ever, the climax of the Chief Justice's indiscre- 
 tions. In a dissenting opinion of one hundred 
 and eighty pages he attacked the findings of the 
 tribunal in an utterly unjudicial spirit and with 
 a confusion of ideas and disregard of logic un- 
 worthy of his talents. In fact, like the Scotch 
 advocate who had lost the thread of his argu- 
 ment, 
 
 "He gaped for't — he groped for't — 
 He found it was awa', men, 
 But when his common-sense fell short 
 He eked it out wi' law, mon." 
 
 2IO 
 
THE ALABAMA ARBITRATION 
 
 The best English opinion sincerely deprecated 
 this futile and ill-advised performance, and 
 public opinion found nothing in the award to 
 provoke anger or criticism. The decision, it is 
 true, marked a diplomatic and legal triumph 
 for the United States which had never been 
 equalled and has never been surpassed, but 
 Englishmen saw that the principles of neutrality 
 which had been established inured to the benefit 
 of both parties, and that international arbitra- 
 tion had been magnificently vindicated by the 
 satisfactory solution of a problem of unparalleled 
 difficulty. Indeed, the result was accepted by 
 England without resentment and with little or 
 no regret, and had her arbitrator recognized 
 the human elements in his cause, and striven 
 to do justice rather than battle for his country, 
 it is more than probable that a far more favorable 
 result would have been her portion. 
 
VII 
 
 THE HAYES-TILDEN CONTEST: 
 A POLITICAL ARBITRATION 
 
 THE old Senate - chamber in the national 
 Capitol was the political battle-ground of 
 the issues which presaged the Civil War. With- 
 in its walls Webster and Hayne voiced the pre- 
 liminary challenge and defiance of the coming 
 conflict ; to its audience Douglas first addressed 
 his arguments for "popular sovereignty"; be- 
 hind its doors the vote which repealed the 
 Missouri Compromise was recorded; under its 
 roof the Kansas conspiracy found shelter and 
 encouragement; upon its floor Stimner fell un- 
 der the murderous attack of Brooks; across its 
 desks flew the goading insults of the Free-State 
 men and the furious threats of their opponents ; 
 directly beneath it, in the room now occupied 
 as the law library, the Supreme Court announced 
 its decision in the Dred Scott case, and shortly 
 afterwards the Senate surrendered possession of 
 
 212 
 
THE HAYES-TILDEN CONTEST 
 
 the Chamber, permeated with the contagion of 
 party strife, to that august tribunal. But 
 though the conflict immediately shifted to the 
 new legislative hall, where all the vicious sav- 
 ageries of the war were soon reflected in the 
 virtuous excess of Reconstruction, it was des- 
 tined again to invade the scene of its origin. 
 Within its walls the Electoral Commission as- 
 sembled in February, 1877. 
 
 To those who recalled the partisan inheritance 
 of the room, its selection as the meeting-place of 
 jtirists charged with the settlement of a vital 
 political question was ominous of disaster, but 
 in other respects no court ever convened under 
 more favorable auspices than those which greet- 
 ed the extraordinary bench to which the Hayes- 
 Tilden controversy was finally submitted. In- 
 voked as " a tribunal whose authority none could 
 question and whose decision all would accept," 
 it had come into being dowered with the confi- 
 dence of the public and armed with a mandate 
 to save the people from themselves. 
 
 Certainly it was high time that some one or 
 something intervened to avert the unspeakable 
 calamities which threatened the nation, for 
 the Presidential election of the preceding fall 
 had literally torn the country to pieces. Under 
 
 213 
 
DECISIVE BATTLES OF THE LAW 
 
 the leadership of Tilden, the Democrats had 
 prepared and prosecuted a terrific indictment 
 against the corruption and misgovemment of 
 the administration, and as a result they had 
 secured an impressive popular majority for their 
 candidate, and no less than 184 electoral votes, 
 only one less than the ntimber required for his 
 choice. Hayes had concededly received 166 
 votes, and nineteen representing South Carolina, 
 Florida, and Louisiana were in dispute. To the 
 impartial observer it seemed impossible that 
 those Democratic strongholds should not yield 
 at least one vote for Tilden ; but to the Repub- 
 lican politicians, whose henchmen controlled the 
 canvassing boards, that result appeared not only 
 possible, but. probable, and the outcome of the 
 local contests that ensued fully justified their 
 confidence. 
 
 The story of those contests was substantially 
 the same in each State, and all were equally 
 humiliating to civic pride. The Democratic 
 majorities on the face of the rettims were elimi- 
 nated by the canvassing boards on charges of 
 negro intimidation irregularly presented and in- 
 sufficiently proved; protests were ignored and 
 perjuries condoned. The policy of Reconstruc- 
 tion which had forced corrupt government and 
 
 214 
 
THE HAYES-TILDEN CONTEST 
 
 negro svifiErage upon the South and driven it to 
 physical outrage had now to be sustained by 
 legal outrage, even more demoraUzing than the 
 terrorism it had evoked. 
 
 Not one redeeming episode marked all this 
 sorry business. To the tricks, perjuries, and 
 gross partisanship of the RepubHcans, the Demo- 
 crats responded with counter-tricks, counter- 
 perjuries, and bungling negotiations to bribe 
 corrupt officials, and when each side had ob- 
 tained certificates supporting the claims of its 
 candidates and forwarded them to Washington, 
 they presented only a shameful choice. 
 
 With their control of the election machinery, 
 however, the Republicans had a tactical advan- 
 tage in that their certificates were issued by 
 recognized officials, while the Democratic docu- 
 ments were less regular upon their face. Never- 
 theless, in the case of Florida the certificate of 
 the Tilden electors Jiad been passed upon and 
 approved by the highest courts of that State, 
 and the notorious fact that a Democratic ma- 
 jority of not less than six thousand had been 
 suppressed in Louisiana invited close scrutiny 
 of the Republican credentials, and entitled the 
 opposition to the benefit of every doubt. 
 
 Who was to decide between these conflicting 
 
 2IS 
 
DECISIVE BATTLES OF THE LAW 
 
 returns? That question had been frequently 
 raised, but the Constitution afforded no definite 
 answer, and as no election had previously de- 
 pended upon the vote of a State claimed by 
 both parties, the issue had been avoided by 
 temporary expedients. Now, however, it was 
 sharply presented, and there was absolutely no 
 precedent governing the situation. The Con- 
 stitution merely provided that on a certain day 
 the President of the Senate should open the 
 returns in the presence of both Houses, and 
 the vote should then be cotinted. But here 
 was a case where there were returns to be 
 rejected as well as counted. With whom lay 
 the power to discriminate between them ? The 
 Republican Senators gravely answered that it 
 was the duty of the President of their Chamber, 
 who was authorized not only to open and count 
 the returns, but to pass upon their validity. 
 In other words, they claimed that the Constitu- 
 tion intrusted this vitally important matter 
 entirely to the discretion of one man, and that 
 the assembled House and Senate were merely 
 authorized to be present as spectators of his act. 
 This, it was true, had never been done in the 
 history of the republic, and the Democratic 
 majority in the House angrily asserted that it 
 
 216 
 
THE HAYES-TILDEN CONTEST 
 
 never shoidd be done. Moreover, they posi- 
 tively declared that no electoral vote whatso- 
 ever could or should be counted without the 
 concurrent action of both branches of Congress. 
 If neither candidate received a majority of the 
 votes, then it was contended that the whole 
 matter was relegated to the House of Repre- 
 sentatives, which was authorized to elect a 
 President, and that body plainly intimated its 
 entire readiness to assume the responsibility. 
 
 Unless these divergent claims could be recon- 
 ciled the result was only too apparent — Tilden 
 would be declared President by the Democratic 
 House, and Hayes by the Republican Senate; 
 each would set up his own government, and no 
 one could predict what the outcome would be. 
 Already throughout the country there were 
 mutterings of the storm which threatened to 
 rend the nation. Incited by the appeals of 
 irresponsible demagogues, bands of minute-men 
 were enrolled, sworn to seat the Democratic 
 candidate peaceably if possible, but by force if 
 necessary; offers of arms and men were made 
 to the party leaders, taunts and defiances flew 
 in every direction, and very little was wanting 
 to precipitate a national disaster. In the face 
 of this monstrous prospect capital took alarm, 
 
 217 
 
DECISIVE BATTLES OF THE LAW 
 
 business languished, the goveniinent came to a 
 ptactical standstill, and the enemies of the re- 
 public, who had confidently predicted the down- 
 fall of its institutions for more than a century, 
 watched the menacing situation with grim satis- 
 faction, laughing in their sleeves and knowingly 
 wagging their heads. 
 
 It was at this crisis that sane public opinion 
 asserted itself and forced a peaceful solution of 
 the issue. From all parts of the country and 
 from organizations of every character petitions, 
 resolutions, and memorials poured in upon the 
 assembled legislators, urging and, in fact, de- 
 manding that they lay aside their differences 
 and devise some means of settlement, and of 
 this popular pressure came the bill creating 
 the Electoral Commission. It was not With- 
 out much misgiving and considerable oppo- 
 sition, however, that the bill became a law. 
 Tilden opposed it in the face of his party's 
 approval, and the Republicans fought it tooth 
 and nail. Under the provisions of the act five 
 of the proposed judges Were to be selected from 
 the House, which insured the appointment of 
 five Democrats; five were to be nominated by 
 the Senate, which was certain to designate Re- 
 publicans, and five were to be selected from the 
 
 218 
 
THE HAYES-TILDEN CONTEST 
 
 Supreme Court bench — two Republican ap' 
 pointees and two Democratic, these four to 
 name the fifth. Firmly believing that this plan 
 necessitated the selection of Judge David Davis, 
 Lincoln's lifelong friend, who, although origi- 
 nally a Republican, had become an Independent 
 with Democratic leanings, the Democrats al- 
 most unanimously supported the measure, and 
 in the general rejoicing over its enactment the 
 voices of Tilden's supporters were clearly domi- 
 nant. Their joy, however, was short-lived; for 
 after the bill had passed the Senate and while 
 it was being rushed through the House, the 
 independent Republicans and the Democrats in 
 Illinois combined in electing Davis to the Senate, 
 rendering him practically ineligible to serve upon 
 the Commission, and compelling the designation 
 of a Republican to complete " the tribunal whose 
 authority none was to question and whose 
 decision all were to accept." 
 
 It was with no little relief that patriotic 
 Americans watched the evolution of this ex- 
 traordinary court from the chaos of evils which 
 had disgraced the national institutions and 
 threatened them with ruin. To their minds it 
 indicated an awakened public conscience; it 
 evidenced the trivifflph of patriotism over poli- 
 
 S19 
 
DECISIVE BATTLES OF THE LAW 
 
 tics; it demonstrated the law-abiding instinct 
 of a people fitted for self-government, and 
 promised a redeeming climax to a series of 
 national humiliations. Partisan passion and 
 prejudice had held sway for the moment, but 
 statesmanship and justice promised finally to 
 prevail. 
 
 Early on the morning of February 2, 1877, 
 the room which had once sheltered the Senate 
 was besieged by throngs of men and women 
 noisily clamoring for admission; but the Cham- 
 ber was too small to accommodate more than 
 the invited guests and privileged officials, and 
 the gallery which had not been opened for years 
 was reserved for reporters, editors, newspaper 
 proprietors, and their families. The general 
 public was therefore rigidly excluded, and the 
 audience which gathered under the vigilant 
 eyes of the journalists was more notable, per- 
 haps, than any which had previously awaited 
 the opening of an American court. 
 
 Behind the rail sat the diplomatic repre- 
 sentatives of almost every foreign country, all 
 the members of the cabinet, the general of the 
 army, the admiral of the navy, officers of both 
 branches of the service. Senators, Congressmen, 
 judges, and distinguished citizens, and at the 
 
 320 
 
THE HAYES-TILDEN CONTEST 
 
 counsels' table as remarkable an assemblage of 
 legal talent as ever appeared in any cause. 
 
 On the Democratic side sat Charles O'Conor, 
 an advocate almost without a peer in his day. 
 His day, however, was waning fast, and the 
 pale, care-worn face revealed unmistakable 
 traces of pain and illness, and suggested a doubt 
 of his physical fitness for the great struggle 
 which impended. Near this famous champion 
 sat another veteran of the bar, whose massive 
 wigged head, burly personality, and inseparable 
 tobacco-box were familiar to all the courts, for 
 Jeremiah S. Black was known throughout the 
 country for his professional skill. It was natu- 
 ral that these Democratic jurists should have 
 appeared in Tilden's behalf; but associated with 
 them was a man whose presence could not be 
 accounted for by party affiliations, and to 
 those who knew Lyman Trumbull's long friend- 
 ship with Lincoln and his record as a Republican 
 Senator, his appearance in support of the Demo- 
 cratic claims was suggestive, even though he 
 had not been a strict party man for some years. 
 Not far distant from these distinguished counsel, 
 and apart from his associates, the journalists in 
 the gallery espied Roscoe Conkling sitting ab- 
 sorbed in thought, and instantly the excited 
 
 221 
 
DECISIVE BATTLES OP THE LAW 
 
 whispet spread that the great Republican cham- 
 pion of the electoral bill intended to cast aside 
 his party allegiance and address the tribtmal 
 on behalf of Tilden— a rumor which had some 
 foundation, but no confirmation, Montgomery 
 Blair, Matt H. Carpenter, ex- Judge John A. 
 Campbell of the Supreme Court, Richard T. 
 Merrick, George Hoadley, A, P. Morse, Ashbel 
 Green, and William C. Whitney completed the 
 list of Democratic advisers— all lawyers of 
 marked ability, although Whitney's talents 
 were not then generally recognized, and it was 
 whispered that his relationship to Commissioner 
 Payne was responsible for his presence. 
 
 Formidable as was this gathering of legal 
 experts, their opponents, grouped at the other 
 end of the long table, were equally redoubtable. 
 As leading counsel the Republicans had retained 
 William M. Evarts, whose thin, keen face had 
 acquired a network of lines and wrinkles since 
 the day he had defended Andrew Johnson, and 
 whose fame in the Alabama case had been still 
 further enhanced by his recent masterful achieve- 
 ments in the Beecher trial, and upon him was 
 destined to fall the brunt of the Democratic 
 attack. Near this experienced chieftain sat a 
 heavily built, confident-looking man with a red 
 
 222 
 
THE HAYES-TILDEN CONTEST 
 
 face, sandy whiskers, and broad intellectual fore- 
 head, destined, after a fierce struggle, to win a 
 seat on the Supreme Bench as a reward for his 
 services not only in the case at bar, but in the 
 preliminary contests, for Stanley Matthews had 
 fought hard for Hayes in Louisiana, and his 
 name was already familiar to the public. Be- 
 side Matthews sat Edward M. Stoughton, a 
 shrewd and resourceful lawyer, and behind them 
 appeared Samuel Shellabarger, Hayes's personal 
 counsel, armed with intimate knowledge of every 
 detail of the controversy, and ready for every 
 legal emergency. 
 
 Eleven chairs had been crowded behind the 
 judicial desk, and the bench extended by plac- 
 ing a table at either end, each capable of accom- 
 modating two commissioners; but, except for 
 this change and the personnel of the audience, 
 the appearance of the room was the same as it 
 usually presented on court days. With the 
 advent of the commissioners, however, the bench 
 assumed an unfamiliar aspect, for the judges had 
 discarded their official robes in deference to their 
 lay associates ; and as the fifteen men took their 
 places before the silent audience, it was noted 
 that they divided upon party lines. Judge 
 Clifford took the Chief -Justice's place, with 
 
 223 
 
DECISIVE BATTLES OF THE LAW 
 
 Justices Miller and Bradley on his left, and 
 Field and Strong on his right. Then to the left 
 ranged the Republicans, Edmunds, Morton, and 
 Frelinghuysen ; and at the right the Democrats, 
 Abbott, Himton, and Payne, while at one of the 
 tables sat Garfield and Hoar, and at the other 
 Thurman and Bayard — an ominously partisan 
 arrangement extremely disquieting to those who 
 believed that the Senators and Representatives 
 could as easily lay aside their politics as the 
 judges could their robes. Individually and col- 
 lectively, however, the Commission was unques- 
 tionably a remarkable body of men. Seven of 
 its fifteen members were, or had been judges — 
 all were jurists of recognized ability — one was 
 destined to become President, another Secretary 
 of State, another ambassador to England, and 
 others to distinguish themselves in various ways, 
 and their existing public records justified the 
 belief that they would rise superior to all party 
 claims and do impartial justice. 
 
 In the pause that followed the seating of the 
 tribunal the attention of the spectators centred 
 for a moment upon Justice Bradley, who had 
 been selected to take the place which the Demo- 
 crats had designed for Judge Davis, but he was 
 apparently unconscious of the interest he 
 
 224 
 
THE HAYES-TILDEN CONTEST 
 
 evoked. His clean-shaven, expressive face indi- 
 cated strong character and great personal dig- 
 nity, and his calmness suggested courage and 
 inspired confidence. 
 
 It was after twelve when the presiding justice 
 opened the proceedings by recognizing David 
 Dudley Field, brother of Justice Field, and one 
 of the Representatives from New York, who, 
 although he had voted for Hayes, had sought 
 an election to Congress mainly for the purpose 
 of espousing Tilden's cause, and who rose to 
 present the formal objections of the Democrats 
 to the Republican certificate from Florida. 
 Similar objections were likewise offered by Re- 
 publican representatives to the Democratic cer- 
 tificate, and then the legal battle began. 
 
 Complicated as the various objections seemed 
 to be, the Democratic point of attack was ap- 
 parent and the issue comparatively simple. 
 With great force and persuasive earnestness, 
 O'Conor impeached the eligibility of one of the 
 Republican electors, alleging that he was a 
 Federal oflSce-holder and therefore debarred by 
 the Constitution from acting as an elector, and 
 insisted that testimony be admitted in support 
 of this charge. The strategy of this move was 
 instantly comprehended, however, by the Re- 
 
 225 
 
DECISIVE BATTLES OF THE LAW 
 
 publican counsel, who saw that it was the open- 
 ing wedge to an examination of all the facts 
 leading to the issuance of the certificate to the 
 Republican electors, and they determined that 
 no such precedent should be established. Evarts 
 therefore promptly flung down the gauntlet by 
 announcing his contention that the court could 
 consider no question but the regularity of the 
 certificates, and had no power to go behind the 
 returns, and his challenge was instantly ac- 
 cepted. Unless they were permitted to show 
 what had happened before the Board of Can- 
 vassers, and in what manner their majorities 
 had been eliminated, the Democrats realized 
 that their cause was lost, and they immediately 
 grappled with the foe. One after another, 
 'Conor, Black, and Merrick attacked the Re- 
 publican position, Merrick drawing the enemy's 
 fire in a rapid fusillade of questions from the 
 Republican coramissioners, indicating anything 
 but an impartial attitude on their part. 
 
 It was at this juncture that Stanley Matthews 
 entered the fray, and his opening words were 
 singularly daring and prophetic With a swift, 
 almost imperceptible glance at Justice Bradley, 
 be quoted from an essay on Papal Councils, 
 wherein the author, in commenting upon the 
 
 236 
 
THE HAYES-TILDEN CONTEST 
 
 belief that they were enlightened by the pres- 
 ence of the Holy Ghost, irreverently remarked 
 that they may have been so favored, but he 
 generally found that the Spirit had resided in the 
 odd man. 
 
 The words were spoken in jest and were 
 received with laughter, but the bad taste that 
 inspired them was scarcely less offensive than 
 their ominous cynicism to those who cherished 
 the hope of an impartial decision. 
 
 Stoughton followed Matthews with a speech 
 of considerable adroitness, and Evarts and 
 O'Conor soon joined battle, employing the 
 heavy artillery of argument behind ramparts 
 of words, until their ammunition was fairly 
 exhausted. Then Justice Field forced the Re- 
 publican leader into the open, and it required 
 not only courage but downright audacity for 
 Evarts to hold his own under the rapid fire of 
 questions which would have swept a man of 
 less reputation off his feet. 
 
 " Suppose the canvassers had made a mistake 
 in footing up the returns," suggested the judge, 
 "and suppose that mistake changed the result 
 of the election, and that they discovered it 
 before the electoral vote was counted, would 
 there be no remedy?" 
 i6 227 
 
DECISIVE BATTLES OF THE LAW 
 
 Evarts looked his questioner squarely in the 
 eyes. 
 
 "No!" he answered, firmly. 
 
 "Then," commented the justice, "a mistake 
 in arithmetic, in the adding up of figures, may 
 elect a President of the United States and the 
 Congress be powerless to prevent it!" 
 
 The audience awaited the lawyer's answer 
 with strained attention, but no question had 
 been asked him, and he offered no response. 
 The silence was at last broken by Justice Field, 
 who again advanced to the attack. 
 
 "Suppose the canvassers were bribed,'" he 
 began, "or suppose they had entered into a 
 conspiracy to commit a fraud, and in pursuance 
 of that bribery or conspiracy altered the returns, 
 declaring as elected persons not chosen by the 
 voters, and had transmitted the vote to the 
 President of the Senate, but before that vote 
 had been counted the fraud was detected and 
 exposed, would there be no remedy?" 
 
 Again Evarts met the searching interrogation 
 without flinching. 
 
 "No," he answered; "whatever fraud there 
 is must be discovered and protested against 
 before the Board of Canvassers makes its 
 returns — " 
 
 228 
 
THE HAYES-TILDEN CONTEST 
 
 " But suppose the members of the board were 
 themselves the conspirators?" 
 
 " It makes no difference under the law." 
 
 "If this be sound doctrine," observed the 
 judge, "it is the only instance in the world 
 where fraud becomes enshrined and sanctified 
 behind the certificate of its authors. It is ele- 
 mentary knowledge that fraud vitiates all pro- 
 ceedings, even the most solemn — ^that no fonn 
 of words, no amount of ceremony, and no 
 solemnity of procedure can shield it from 
 exposure." 
 
 Again Evarts made no answer, but stood his 
 ground defiantly, the audience watching him, 
 spellbound and almost without breathing. 
 
 "Suppose the canvassers were coerced by 
 force," continued the relentless questioner; 
 "suppose men put pistols at their heads and 
 threatened to blow out their brains if they did 
 not perjure themselves, would there be no 
 remedy ?" 
 
 Again No! and No! again. Neither mistake 
 nor fraud nor force justified Congress in re- 
 versing the action of the State canvassers, and 
 the certificate issued on their return must 
 stand. Neither the Constitution nor the laws 
 authorized Congress to go behind the returns, 
 
 229 
 
DECISIVE BATTLES OF THE LAW 
 
 and the coxirt had no power except that which 
 Congress possessed. 
 
 Had he faltered in his answer to those search- 
 ing questions, had even the expression of a 
 doubt crossed his face, it is not impossible that 
 Evarts would have lost his cause. But to his 
 professional mind the law was the law. It was 
 not justice; it was not expediency; it was not 
 necessarily logical or even defensible, but it was 
 unalterable, and with unquivering eyelids he 
 outfaced his questioner and carried the day. 
 
 On the sth of February the commissioners 
 retired to deliberate, and on the Sth they deter- 
 mined by a vote of eight to seven not to go 
 behind the returns, every Republican siding 
 with the majority and every Democrat oppos- 
 ing — a strictly partisan vote. " I would rather 
 lose by a unanimous decision than win on such 
 a showing," was the comment of a disheartened 
 Republican patriot, and his words voiced the 
 thought of all who had looked to the court for 
 an authoritative utterance free of political taint. 
 
 To the legal fraternity that preliminary de- 
 cision was deeply significant, but patriotic 
 optimists still clung to the belief that the 
 court would yet assert its independence, and 
 when testimony was admitted to estabHsh the 
 
 230 
 
THE HAYES-TILDEN CONTEST 
 
 disqualification of the office-holding Republi- 
 can elector, the spirits of the optimists rose 
 accordingly. The evidence, however, demon- 
 strated that the accused official had resigned the 
 Federal position which was supposed to bar 
 him from acting as an elector, and that tech- 
 nically he was within the law. On the 8th of 
 February the commissioners again retired for 
 deliberation, and when they returned on the 
 9th and awarded Florida to Hayes by the same 
 partisan vote of eight Republicans against seven 
 Democrats, the supporters of Tilden lost heart 
 and sensitive Republicans hung their heads. 
 
 And yet, had they but known it, a great 
 opportunity still lay before the Democrats, and 
 those in the Republican secrets were yet to face 
 the worst quarter-hour of their lives, for some 
 of them had taken desperate chances in the 
 interests of their party, and they faced the open 
 doors of a prison when the opposing certificates 
 from Louisiana reached the Presiding- Justice, 
 Clifford. 
 
 It was on the morning of February 13th that 
 this crisis was reached, and the court was again 
 crowded to its utmost capacity. All the com- 
 missioners were present and all the counsel who 
 had attended the previous sessions, except 
 
 2.^1 
 
DECISIVE BATTLES OF THE LAW 
 
 O'Conor whose place was occupied by ex- Judge 
 Campbell. There was, therefore, no lack of 
 astute advisers for the Democracy. They were 
 the flower of the bar — ^trained observers whose 
 professional duties had taught them to scruti- 
 nize every detail in a case and take nothing for 
 granted, while on the bench were seven Demo- 
 cratic jurists, equally weU equipped and vigi- 
 lant. With such an array of l^al experts 
 watching the interests of their clients it seemed 
 impossible that deception shoidd be success- 
 fully practised or fraud go undetected, and yet 
 the impossible happened. 
 
 The proceedings opened as usual with the 
 reception of the conflicting certificates from the 
 Senate-chamber — ^five doctiments in all — ^and 
 while these important papers were being per- 
 functorily examined and initialled by the pre- 
 siding justice, the journalists in the gallery idly 
 watched the scene, the lawyers whispered to- 
 gether, and prepared for the coming contests, 
 the general public waited, bored and inattentive, 
 and some of the RepubHcan managers sat quak- 
 ing with fear. 
 
 Judge Clifford finally laid aside his pen, and 
 it was ordered that the various exhibits which 
 he had been marking be printed and copies 
 
 232 
 
THE HAYES-TILDEN CONTEST 
 
 furnished for the convenience of the counsel 
 and commissioners. Had a single objection to 
 this routine been interposed; had prudence, 
 habit, or even curiosity impelled any of the 
 Democratic counsel to scrutinize the original 
 documents, or had enterprise prompted any 
 jotimalist to examine and compare them, a 
 sensational exposure wotild have been inevita- 
 ble, for one of the Republican certificates was 
 clumsily, even obviously, forged.' 
 
 * Under the Constitution three copies of the certificate of the 
 Louisiana vote were necessary, one of which had to be forwarded 
 to the President of the Senate by mail, another deUvered to him 
 by hand, and the third deposited with the United States District 
 Judge — all of which had to be accomplished within a certain 
 number of days. When the Republican messenger — one T. C. 
 Anderson — arrived in Washington and delivered the package 
 containing one of those three certificates to Mr. Ferry, the Presi- 
 dent of the Senate, that gentleman called his attention to an 
 irregularity in the form of the indorsement on the envelope and 
 suggested that he consider its legal effect. Anderson therefore 
 retained the package and secretly opened it to ascertain if the 
 error had been repeated in the certificate itself. To his con- 
 sternation he discovered far more vital defects in the document, 
 and flying back to New Orleans, consulted with the party leaders, 
 who agreed that the instrument must be redrawn, and the electors 
 were hastily resvumnoned. Then, to the managers' horror, it 
 was discovered that two of the necessary ofiicials were absent 
 and cotild not possibly be reached within the time limited by 
 law for the delivery of the paper in Washington. "Heroic" 
 measures were therefore deemed essential, and after all the 
 available signatures had been obtained the others were forged 
 and the doctored certificate, which, of course, was obviously 
 different from the one previously fowarded by mail, was rushed 
 
 233 
 
DECISIVE BATTLES OF THE LAW 
 
 Had this been discovered, it is not impossi- 
 ble that one or more of the Republican commis- 
 sioners, who were suspected of wavering in their 
 party allegiance, would have voted for a 
 thorough investigation, and an entirely dif- 
 ferent result might have been effected. From 
 a strictly legal point of view the forgery was 
 not necessarily fatal to the validity of the certi- 
 ficates, for they had been executed in triplicate 
 and only one of the three was tainted with 
 fraud, but the storm of popular indignation 
 which would undoubtedly have followed the 
 discovery of this fact might well have severed 
 one of the Commissioners from his party alle- 
 giance. But however that might have been, 
 neither suspicion nor inspiration put the Demo- 
 cratic champions on their guard, and the op- 
 portunity passed unheeded, never to return. 
 
 Wholly unconscious of this glaring defect in 
 their enemies' armor, the Democratic counsel 
 proceeded to give battle on substantially the 
 same lines which had brought them to defeat 
 in the Florida case. There was, however, some 
 
 back to Washington just in the nick of time. All these facts 
 were subsequently unearthed, but those who actually committed 
 the forgeries were never detected. — H. R. R. No. 140, 4S<fe 
 Cong., 3d Session, pp. 50-63 and 89-91. 
 
 2.34 
 
THE HAYES-TILDEN CONTEST 
 
 reason to hope that the court might yet reverse 
 itself, for popular denunciation of the partisan 
 vote had not been confined to the supporters 
 of Tilden, and the effect of public opinion upon 
 poUtical judges could not be disregarded. More- 
 over, the Louisiana case was particularly strong 
 upon the merits, for it was well known that the 
 heavy Democratic majorities had forced the 
 Board of Canvassers to reject votes — ^not spar- 
 ingly, as had been sufficient in Florida, but by 
 thousands upon thousands — and it was believed 
 that some of the eight Republicans could yet be 
 induced to vote for an examination into the 
 facts. 
 
 With these incentives, therefore. Carpenter 
 and Trtimbull began the attack, and for half a 
 day they battled manfully against the adverse 
 precedent which had been estabhshed in the 
 Florida case, demanding that the court overrule 
 itself and cease to shield injustice under tech- 
 nicalities. Appealing as their arguments were, 
 the answers of Stoughton and Shellabarger, the 
 RepubUcan cotinsel, were well calculated to hold 
 the majority of the court together, for they 
 showed that an examination into the facts 
 would entail an almost interminable proceeding, 
 precluding any possibility of a decision until 
 
 23."; 
 
DECISIVE BATTLES OF THE LAW 
 
 long after Grant's term had expired. In the 
 mean time there wotild be no President or Vice- 
 President, and the result of such an unsettled 
 condition of affairs upon the business of the 
 country would be wellnigh disastrous. This 
 prospect was sufficiently alarming to sustain the 
 wavering majority, and after Evarts and Judge 
 Campbell had fought each other for another 
 day with legal citations, history, philosophy, 
 and all the other weapons of debate, argtiment 
 was again exhausted, and the court once more 
 retired for deliberation. The fight, however, 
 was immediately continued in the consulting- 
 room. Motion after motion was made by the 
 Democratic commissioners for a favorable de- 
 cision on their contentions, but without avail. 
 No matter in what form their propositions 
 were submitted, the eight Repubhcans voted 
 them down and the seven Democrats dissented. 
 Finally it was proposed to reject all the returns 
 and throw out the vote of Louisiana altogether 
 — a proceeding fully justified by the situation, 
 and for which there was precedent — ^but this 
 was likewise defeated by the same vote of eight 
 to seven. Then Commissioner Morton, who is 
 supposed to have been warned that there was 
 something wrong with the Republican certificate 
 
 236 
 
THE HAYES-TILDEN CONTEST 
 
 marked No. 3, moved that the votes reported in 
 certificate No. i — ^the doctiment which Ferry- 
 had received by mail — ^be counted for Hayes, 
 and his resolution was carried by the monoto- 
 nous majority of one. 
 
 With this decision the case practically ended. 
 On February 2 2d Hoadley and Merrick led a 
 forlorn hope in an attack upon the returns from 
 Oregon, but as the Republicans were strongly 
 intrenched behind the precedents already estab- 
 lished, and as they had concededly carried that 
 State, Evarts and Matthews had no difficulty 
 in repulsing the enemy, and after one day's 
 fighting the dominant majority in the Commis- 
 sion decreed Oregon's three votes to Hayes 
 against the futile protest of their seven asso- 
 ciates. 
 
 Finally the case of South CaroHna was called, 
 but the Democratic electors did not have a 
 majority on the face of the returns from that 
 State, and all public interest in the contest had 
 now evaporated. With the audience-chamber 
 practically deserted, and before a listless and in- 
 attentive bench, the Republican covinsel waived 
 their right to a hearing, and submitted their 
 papers to the court without argtiment. Blair 
 and Black, however, made a last stand for the 
 
 237 
 
DECISIVE BATTLES OF THE LAW 
 
 Democrats, the latter attacking the partisan 
 commissioners with scathing scorn and im- 
 bridled fury, his closing words referring to the 
 rumor that a secret agreement had been effected 
 with the incoming administration to end the 
 policy of Reconstruction. 
 
 "They offer us everything now!" he exclaim- 
 ed, with bitterness. "They denounce negro 
 supremacy and carpet-bag thieves. Their pet 
 policy for the South is to be abandoned. They 
 offer us everything but one; but on that sub- 
 ject their lips are closely sealed. They refuse 
 to say that they will not cheat us hereafter in 
 the elections." 
 
 With the thunder of these denunciations 
 reverberating in their ears the Republican eight 
 awarded South CaroHna to Hayes on February 
 27th, and three days later the great Electoral 
 Commission ingloriously dispersed. 
 
 It was not in vain, however, that the battle 
 had been fought, for of the sectional contagion 
 which contaminated the court-room and affect- 
 ed the judges, the policy of Reconstruction died. 
 As Black had prophesied, within two years the 
 administration, recognizing that another such 
 victory would destroy the party, abandoned the 
 State officials in South Carolina and Louisiana 
 
 238 
 
THE HAYES-TILDEN CONTEST 
 
 who had been declared elected by the same 
 boards which, with less reason, had awarded 
 the electoral votes to Hayes ; carpet-bag govern- 
 ment became only an evil memorj'- in the South, 
 and ten years later an act was passed regulating 
 the counting of disputed electoral votes which 
 diminished if it did not eliminate one of the 
 gravest constitutional evils imperilling the safety 
 of the republic. 
 
VIII 
 
 PEOPLE VS. SPIES et al.: 
 
 THE CHICAGO ANARCHISTS' CASE 
 
 THE atmosphere of the Criminal Court of 
 Cook County was ominously business-like 
 on the morning of June 21, 1886. Save for the 
 group of women gathered about the judge be- 
 hind the judicial desk, no one in the huge, bam- 
 like court-room seemed to be in attendance from 
 mere idle curiosity, and every one, from the 
 judge upon the bench to the bailiffs guarding the 
 doors, looked unmistakably grave. Far larger 
 audiences had frequently assembled in that un- 
 pretentious chamber, for the long galleries at 
 either end were closed to the pubHc, and com- 
 paratively few of the spectators on the floor 
 were standing; but unusual as this condition 
 of affairs was for the opening of an important 
 murder trial, it did not apparently satisfy the 
 presiding official, whose severe glance swept dis- 
 approvingly over the scene. " Persons who can- 
 
 240 
 
PEOPLE vs. SPIES et al. 
 
 not find seats must instantly leave the room," he 
 commanded, sharply. "The bailiffs will im- 
 mediately enforce ttds rule." 
 
 There was no mistaking the determination of 
 the speaker. Slowly, but without resistance, 
 the unseated spectators were herded from the 
 court and the doors closed behind them. Then 
 the judge turned to the prosecutor's table at the 
 right of the low platform supporting the bench 
 and nodded to an intellectual-looking man, who 
 seemed to be awaiting the signal, for he imme- 
 diately rose and broke the intense silence by 
 observing that the State was ready in No. 1195. 
 
 This conventional annotmcement, uttered in 
 a quiet, conversational tone, marked the opening 
 of a cause wholly unprecedented in the United 
 States, and in many respects unparalleled in the 
 history of the world, but those who anticipated 
 something more dramatic were to have their ex- 
 pectations realized in a most surprising manner 
 before many minutes had elapsed. 
 
 For nearly seven weeks Chicago had been 
 feverishly awaiting judicial action on an out- 
 rage which had at first horrified, then frightened, 
 and finally exasperated the community to a 
 point which threatened the due administration 
 of justice. On the night of May 4, 1886, a mass- 
 
 241 
 
DECISIVE BATTLES OF THE LAW 
 
 meeting had been held near Haymarket Square 
 under the auspices of certain anarchist organiza- 
 tions to protest against the action of the police 
 in repressing disorder during a wide-spread strike 
 to enforce the eight-hour labor day. While this 
 meeting was in progress a company of policemen 
 had appeared imder the command of Inspector 
 Bonfield, and Captain Ward, one of the subor- 
 dinate officers, ordered the crowd to disperse. 
 The words had scarcely left his lips when some 
 one hurled a dynamite bomb among the men 
 behind him, kilUng seven of them and injuring 
 sixty others, and in the excitement and con- 
 fusion that followed the assassin had easily 
 made his escape. 
 
 It did not take long for the citizens of Chicago 
 to realize the menacing nature of this attack 
 upon law and order, but before they fairly re- 
 covered from the shock the authorities began an 
 investigation which for thoroughness and in- 
 telligence has never been surpassed in the annals 
 of the American police. Within a week almost 
 every prominent anarchist in the city was under 
 arrest, and the newspapers, teeming with stories 
 of their plots for wholesale murder, roused the 
 public to the point of fury. Execration of such 
 outrages was confined to no particular class of 
 
 242 
 
PEOPLE vs. SPIES et al. 
 
 citizens. All sorts and conditions of men — 
 wage-earners and capitalists alike throughout 
 the country — vied with each other in demanding 
 the prompt suppression of anarchy, and al- 
 though the first burst of popular rage had un- 
 doubtedly spent itself before the accused men 
 were arraigned at the bar, the feeling that follow- 
 ed was perhaps even more dangerous to their 
 safety. The wild denunciations of existing so- 
 cial conditions which had been openly uttered 
 in the city for years, only to be disregarded or 
 laughed at, had suddenly become infamous, and 
 there was no mistaking the popular temper in 
 regard to them. If free speech had been abused, 
 and its abuse encouraged by the indifference of a 
 good-natured people, it was high time that those 
 who had overstepped their privileges learned 
 that they had done so at their peril, and ptlblic 
 opinion demanded that the lesson be so taught 
 that it would never be forgotten. 
 
 This was the spirit animating the crowd which 
 hung upon the prosecutor's opening words on 
 the longest day in the year, 1886, and a more 
 thoroughly informed audience never assembled 
 in a court of law. Not only was every detail of 
 the police investigations familiar to all news- 
 paper readers, but, through the publication of 
 17 343 
 
DECISIVE BATTLES OF THE LAW 
 
 their photographs and records, all the principal 
 actors in the impending drama had long been 
 public characters. Probably every man and 
 woman in the court-room recognized the severe, 
 divStinguished-looking judge as the Hon. Joseph 
 E. Gary, who had fought his way from the car- 
 penter's to the judicial bench, and whose rep- 
 utation as jurist and martinet insured dignity 
 and effectiveness at all legal proceedings over 
 which he presided. Similar details concerning 
 other officials and parties in interest were mat- 
 ters of common knowledge. State's Attorney 
 Julius S. Grinnell, the intellectual-looking man 
 with eye-glasses, who had answered the judge's 
 initial nod, was almost a national character, for 
 his duties as public prosecutor had made him 
 one of the most conspicuous officials in the 
 United States, and the young men gathered 
 about him in close consultation — Francis W. 
 Walker and Edmund Furthman, of his official 
 staff, and George C. Ingham, specially retained 
 to supplement their efforts — ^had already ac- 
 quired considerable local celebrity. Perfect con- 
 fidence was reposed in this legal quartet, for 
 Mr. Grinnell, ftolly realizing that Chicago's rep- 
 utation for law and order was at stake, and that 
 the opportunity of his life lay before him, had 
 
 244 
 
PEOPLE vs. SPIES et al. 
 
 prepared his case in almost record time, and had 
 selected as his subordinates men well fitted for 
 the work at hand. 
 
 Their opponents were not so well known, for 
 the press had devoted little space to them, and 
 the state of public opinion in regard to the case 
 made the task of its defence particularly un- 
 grateful. Of the four lawyers representing 
 the accused, two had had very little experience 
 in the courts, for Sigmund Zeisler, though an 
 able man, was a foreigner only recently admitted 
 to the Illinois bar, and his partner, Moses 
 Salomon, was a beardless youth of no recognized 
 standing. William P. Black and William A. 
 Foster, the senior counsel, were, however, ex- 
 perienced advocates, the former being a familiar 
 figure in the local courts, where he had acquired 
 a reputation for pugnacity which boded ill for 
 that swift and unobstructed administration of 
 the law then generally regarded as essential to 
 the public safety. Indeed, it was with no little 
 rdief that the over-anxious champions of law 
 and order noted his absence when the prisoners 
 were brought into court, and the rumor swiftly 
 spread that he had abandoned the case. Black, 
 however, was planning a very different and far 
 more startling move. 
 
 245 
 
DECISIVE BATTLES OF THE LAW 
 
 Bitter as was the public feeling against the 
 closely guarded prisoners who sat at the left of 
 their counsels' table, it was generally under- 
 stood that none of them had personally com- 
 mitted the crime with which they stood charged, 
 and with the exception of the wild-eyed young 
 degenerate Louis Lingg, there was nothing even 
 suggesting a criminal in their appearance. 
 August Spies, the editor of the anarchist paper 
 Die Arbeiter Zeitung, looked like a German 
 student, his little mustache with waxed ends 
 giving him quite a military air. His associate, 
 Michael Schwab, with his long beard and spec- 
 tacles and intellectual face, might easily have 
 passed for a German professor. Samuel Fielden, 
 the English agitator and anarchist, likewise sug- 
 gested the student and scholar, and his strong, 
 intelligent face bespoke a man of unusual ability. 
 Adolph Fischer, George Engel, and Oscar W. 
 Neebe, the other defendants, were weak rather 
 than vicious looking, and a glance at their faces 
 was sufficient to suggest how dangerous a little 
 knowledge might prove to their minds. All of 
 these men were foreigners, and some of them 
 did not even speak the English language, but 
 there was absolutely no prejudice against them 
 on this account. Indeed, the public indigna- 
 
 246 
 
PEOPLE vs. SPIES et al. 
 
 tion, as far as it was directed against any par- 
 ticular individual, centred upon the only Amer- 
 ican accused of the crime, and the fact that he 
 was not in cotirt was a bitter disappointment to 
 the police, for of all the anarchist leaders he 
 was the only one who had even attempted to 
 escape. 
 
 It was not because the authorities had not 
 sought him diligently that Albert R. Parsons was 
 still at large. Never had a fugitive from justice 
 been more systematically hunted, but though the 
 police force of the entire world had been upon 
 his track, they had not run him down. For a 
 time his disappearance was interpreted as a con- 
 fession of guilt, and it would have surprised no 
 one if he had been indicted as a principal, but 
 the Grand Jury merely named him as an ac- 
 cessory, charged, like the others, with having 
 .instigated and encouraged the crime. Mean- 
 while the search for him continued unabated, 
 for as long as he remained at liberty the record 
 of the police was seriously marred. The day 
 of trial had arrived, however, without the slight- 
 est clue to his hiding-place, and not the least 
 damaging circumstance that confronted the 
 seven prisoners on trial was the incriminating 
 flight of the leader who had addressed their 
 
 247 
 
DECISIVE BATTLES OF THE LAW 
 
 meeting only a few minutes before the explosion 
 of the fatal bomb. 
 
 Such was the situation when Mr. Grinnell 
 moved his case to trial, but the preliminary 
 examination of talesmen for the jury had scarce- 
 ly begun before the proceedings were interrupted 
 by the entrance of two men, one of whom was 
 readily identified as Captain Black the missing 
 counsel for the defence. The other was not im- 
 mediately recognized, and he had almost reached 
 the bench before the prosecutor sprang excited- 
 ly to his feet. 
 
 " I see Albert R. Parsons, indicted for murder, 
 in this court, and demand his instant arrest!" 
 he shouted. 
 
 Captain Black halted, turning savagely upon 
 the speaker. 
 
 " This man is in my charge, and such a de- 
 mand is not only theatrical clap-trap, but an 
 insult to me!" he retorted, indignantly. 
 
 Captain Schaack, Inspector Bonfield, and a 
 dozen other detectives and police officials were 
 instantly upon their feet, but the audience, 
 scarcely believing its eyes or ears, sat in diimb 
 amazement as the two lawyers angrily faced each 
 other. Before another word could be uttered, 
 however, Parsons himself set all doubts at rest. 
 
 248 
 
PEOPLE vs. SPIES et al. 
 
 " I present myself for trial with my comrades, 
 Your Honor, ' ' he observed, with perfect calmness. 
 
 If Judge Gary did not entirely retain his com- 
 posure, he at least gave no outward evidence of 
 astonishment. 
 
 " You will take a seat with the prisoners, Mr. 
 Parsons," he directed, as though nothing un- 
 usual had occurred, and immediately instructed 
 the counsel to prepare the necessary papers, 
 allowing the new defendant to enter a plea and 
 stand trial with the others. An eighth chair 
 was thereupon added to the prisoners' row, and 
 Parsons was soon shaking hands and conversing 
 with his co-defendants, while his lawyers com- 
 plied with the legal formalities, and in a few 
 minutes the great case was again under way. 
 
 Whatever may be thought of the strategic 
 expediency of Parsons's move — and there is 
 strong evidence that it was positively disap- 
 proved by at least one of his counsel — there can 
 be no question that it displayed courage and un- 
 selfishness of a high order. Had he continued 
 in hiding until a jury had been empanelled, he 
 would have secured the immense advantage of 
 a separate trial after the public clamor had been 
 satisfied or diminished, without depriving the 
 other defendants of the benefit of his presence or 
 
 249 
 
DECISIVE BATTLES OF THE LAW 
 
 his testimony. Mr. Foster urged this course, 
 pointing out the danger of a trial with seven 
 other persons, where all sorts of testimony would 
 be admitted, and the innocent be likely to suffer 
 with the guilty, but his advice was disregarded. 
 Parsons deliberately chose to share the hazard 
 of his friends' fortunes, and in so choosing it can- 
 not be denied that he displayed a fortitude and 
 devotion well worthy of respect. 
 
 Such, however, was not the opinion of Chi- 
 cago, where his return was interpreted as further 
 evidence of his notorious contempt and defiance 
 of the law, and the fact that he was an Ameri- 
 can deepened the feeling against him. But if, 
 as has been claimed, he was tmaware that the 
 public indifference to anarchy had given place 
 to detestation of its teachings, the examination 
 of the citizens summoned for jury duty must 
 have completely disillusioned him. Certainly 
 no court record in the United States reveals a 
 deeper or more wide-spread public prejudice 
 than that disclosed by the sworn testimony of 
 the talesmen in this case. Hour after hour 
 passed without the discovery of even one can- 
 didate fitted for dispassionate service, and panel 
 after panel of prospective jurymen was ex- 
 hausted with like result. Days passed without 
 
 250 
 
PEOPLE vs. SPIES et al. 
 
 much better success, and the days stretched into 
 weeks. Everybody seemed to have an opinion 
 — and a decided opinion, too — that the men on 
 trial were guilty, and the few who did not hold 
 such positive views were so convinced that 
 something radical ought to be done to discour- 
 age lawlessness that they could not trust them- 
 selves to judge the case upon its merits. Finally 
 the defence exhausted all its peremptory chal- 
 lenges, and after twenty-two days of unremit- 
 ting labor, during which no less than g8i persons 
 were examined, twelve men were sworn into the 
 jury-box who, while not ideal jurors, were per- 
 haps as open-minded as could be expected un- 
 der the existing condition of public sentiment. 
 No enviable fate awaited those twelve good men 
 and true. From the moment of their accept- 
 ance as jurors they were virtual prisoners, con- 
 fined when out of court in an adjoining hotel, 
 guarded by bailiffs night and day, and cut off 
 from all communication with the outer world. 
 
 It was July 15th before Mr. Grinnell rose to 
 make his opening address, which, despite the 
 minute information furnished by the press, was 
 a revelation to his audience, and not until they 
 had listened to his bitter, forceful arraignment 
 did the counsel for the defence fully realize the 
 
 251 
 
DECISIVE BATTLES OF THE LAW 
 
 desperate fight that lay before them. Amid 
 breathless silence the prosecutor claimed that he 
 would show that the defendants were not in- 
 directly but directly responsible for the crime, 
 having deliberately planned it and other similar 
 outrages, and that he would produce the man 
 who had done the deed. 
 
 The sensation created by this announcement 
 was not confined to the outsiders, for in the 
 excitement of the moment Mr. Grinnell had 
 promised more proof than he had in his pos- 
 session, and under different circumstances his 
 over-zealousness in this and other respects might 
 have seriously damaged his case. The details 
 which he gave, however, disposed of the theory 
 that the defendants were to be prosecuted be- 
 cause of their opinions, and that no direct proof 
 of their connection with the crime could be 
 produced — a story which was already beginning 
 to win sympathy for their cause. 
 
 At the conclusion of this startling address 
 the first witness was called to the stand, and 
 from that moment the trial proceeded rapidly. 
 Without difficulty it was proved that all the 
 defendants were members of an anarchist so- 
 ciety known as the International Working Men's 
 Association — some affiliated with one group and 
 
 252 
 
PEOPLE vs. SPIES et al. 
 
 some with another. Fischer and Engel belonged 
 to what was known as the Northwest Side group; 
 Schwab, Neebe, and Lingg to the North Side; 
 and Spies, Fielden, and Parsons to the so-called 
 American group. Each of these groups or chap- 
 ters had a sub-organization of a military char- 
 acter known as the Armed Section, in which all 
 members having weapons were enrolled. 
 
 The conditions of the strike which began on 
 May ist were then developed by the testimony of 
 the witnesses, and it was soon shown that Spies 
 had been present during a riot at the McCormick 
 factory which had occurred on May 3d, resulting 
 in a collision with the police and the death of 
 several persons. A few hours after this event. 
 Spies had written and caused to be distributed 
 an inflammatory circular, headed "Revenge!" 
 calling upon the people to avenge the alleged 
 murder of the strikers who had fallen in the 
 fight with the poHce. No response of any kind 
 followed the distribution of this handbill, which, 
 though declamatory and denunciatory, called for 
 no particular action. It was then proved that 
 two circulars had been issued announcing a mass- 
 meeting for the night of May 4th, one urging 
 working-men to come armed, and the other 
 omitting that direction, the former, prepared 
 
 253 
 
DECISIVE BATTLES OF THE LAW 
 
 by Fischer and Engel, being suppressed in favor 
 of the latter at the dictation of Spies. Two 
 witnesses who had turned State's evidence, and 
 were themselves under indictment for murder, 
 were then called, and revealed a madhouse plan 
 of action. 
 
 According to these witnesses, a meeting of the 
 Armed Sections had been held on May 3d, at 
 which it had been agreed that when the word 
 "Ruhe" appeared in Spies's paper, Die Arbeiter 
 Zeitung, the members should assemble, provided 
 with dynamite bombs, and distribute them- 
 selves so as to cover the various police stations. 
 " A committee of observation " was then to act 
 with those men, and upon any report of collisions 
 with the police the conspirators were to hurl 
 their bombs into the station-houses, and shoot 
 down all who attempted to escape. This mur- 
 derous plan, according to the eye-witnesses, orig- 
 inated with Engel, and both he and Fischer 
 were active in arranging the details. 
 
 There was much to impeach the story told by 
 the informers, one of whom had apparently made 
 suspicious overtures to the defence. Under 
 skilful cross-examination it was shown that he 
 had confessed and retracted and reconfessed, 
 and very little reliance would have been placed 
 
 254 
 
PEOPLE vs. SPIES et al. 
 
 upon his testimony had it not been supported 
 by other proofs. It was, however, most signifi- 
 cantly corroborated. The signal "Ruhe" had 
 been anonymously sent to Die Arheiter for publi- 
 cation, and the paper containing it was admitted 
 in evidence, together with Spies's written direc- 
 tion to his compositor to insert it in the column 
 known as "The Post Box." 
 
 This was the first link in the remarkable chain 
 of exhibits which was to make this case unique 
 in the annals of criminal law. 
 
 Another informer then took the stand, and 
 testified that he had aided the defendant Lingg 
 to manufacture dynamite bombs for the use of 
 the Armed Sections according to the plan 
 previously agreed upon, and that early on 'the 
 evening of May 4th he and Lingg had carried a 
 satchel full of the deadly missiles to a saloon fre- 
 quented by their group, depositing it in the 
 basement hallway of this resort, where any one 
 who chose to do so could enter and help him- 
 self. Neither the appearance of the man who 
 told this tale, nor his record, nor his motives 
 entitled him to credence, but again the exhibits 
 spoke louder than any words, and corroborated 
 him beyond hope of contradiction. These silent 
 witnesses were the materials and apparatus for 
 
 2SS 
 
DECISIVE BATTLES OF THE LAW 
 
 making bombs discovered in Lingg's rooms, the 
 fragments of the exploded bomb, which con- 
 clusively proved that it was the sort which Lingg 
 had manufactured, the bombs which the witness 
 confessed that he and Lingg had secreted under 
 a sidewalk where they were located by the 
 police, and a fuse and fulminating cap found in 
 the pocket of Fischer's coat at the time of his 
 arrest. 
 
 All the proof up to this point, however, in- 
 volved only Fischer, Engel, Lingg, and Neebe, 
 and there was very little to connect the last- 
 named with the case. Beyond the fact that he 
 was a small stockholder in Die Arbeiter, of whose 
 property he assumed charge after the arrest of 
 its editors, and that he had distributed some of 
 the " Revenge " circulars, there was no evidence 
 against him, and nothing further developed as 
 the trial progressed. 
 
 Then followed the history of the Haytnarket 
 mass-meeting at which Spies, Parsons, and 
 Fielden spoke. All accounts agreed that the 
 meeting was orderly, and the speeches, if in- 
 tended to inflame the audience, were ill adapted 
 to that end and signally failed of their purpose. 
 Even Fielden's address, which apparently moved 
 the police to interfere, was less violent than the 
 
 256 
 
PEOPLE vs. SPIES et al. 
 
 average stump-speaker's harangue, and the 
 crowd did not seem to have been excited by it. 
 Finally a witness named Gilmer was produced, 
 who swore that he had seen something that 
 might have been a bomb pass between Spies, 
 Schwab, and a man named Schnaubelt, and that 
 later, when Captain Ward ordered the crowd to 
 disperse, he saw this man draw a bomb from his 
 pocket and hurl it at the police after Spies had 
 lit the fuse. 
 
 Formidable as this testimony appeared to be, 
 it was badly shattered under cross-examination. 
 The witness, it appeared, had kept his informa- 
 tion to himself for several days after the event, 
 during which time the man Schnaubelt was twice 
 arrested and discharged, and his whole story and 
 his manner of telling it indicated that he was a 
 notoriety-seeker who had concocted the tale in 
 order to attract public attention and gratify 
 his pitiftil vanity, if not for mercenary motives. 
 Dozens of witnesses subsequently took the stand 
 and swore that he was a notorious liar who 
 lived by his wits, and the contrary statements of 
 those who were called to support his reputation 
 for veracity were utterly unconvincing. There 
 was some corroboration of this witness in the 
 testimony of a man named Thompson, and the 
 
 2S7 
 
DECISIVE BATTLES OF THE LAW 
 
 disappearance of Schnaubelt and his relation- 
 ship to Schwab were suspicious circumstances, 
 but the proof fell far short of the prosecutor's 
 claim that he would produce the actual assassin, 
 whose identity has not been satisfactorily es- 
 tablished to this day. 
 
 Some policemen then attempted to show 
 that Fielden had fired upon them from behind 
 the cart which served as the speaker's plat- 
 form after the bomb had been thrown, but 
 their assertions partially disproved themselves, 
 and there was an utter absence of convincing 
 confirmation. In fact, none of the oral testi- 
 mony strongly inculpated either Spies, Schwab, 
 Fielden, or Parsons, but before long telltale 
 exhibits which could not be impeached began 
 to pile up against them. 
 
 For some years Spies and Schwab had been 
 conducting Die Arbeiter Zeitung, and Parsons 
 had been editing The Alarm, and very close re- 
 lations existed between these two journals. In 
 the offices of the first-named the police found 
 dynamite and d3mamite bombs, which were pro- 
 duced and exhibited to the jury. Then red 
 flags and banners inscribed with incendiary 
 mottoes seized in the same office were carried 
 into court, and from the editorial library came 
 
 258 
 
PEOPLE vs. SPIES et al 
 
 Host's Science of Revolutionary Warfare. The 
 admission of this last exhibit was bitterly op- 
 posed by the defence, but upon proof that the 
 book had been advertised for sale by the editors, 
 and that it had been peddled at anarchist fairs 
 attended by some of the defendants, it was re- 
 ceived and its diabolical contents read in full to 
 the jury. This, however, was not the most 
 questionable ruling at the trial, for the court 
 permitted the prosecution to place in evidence 
 several bombs which had been discovered by 
 the police weeks after the crime and miles away 
 from the scene of action, and to exhibit their 
 destructive qualities despite the fact that not 
 one of them was clearly traced into the posses- 
 sion of the defendants. There has never been 
 any satisfactory defence of those extremely 
 dubious ndings, but it is very doubtful if they 
 affected the result, for the most damaging evi- 
 dence of the whole trial was furnished by the 
 written words of the prisoners themselves. 
 
 Copy after copy of the Arbeiter and the Alarm 
 was produced, and their articles and editorials, 
 as read to the jury, must have convinced any 
 intelligent body of men of the purpose for which 
 they were written. Certainly nothing could 
 have been more injurious to Spies, Schwab, and 
 
 18, 259 
 
DECISIVE BATTLES OF THE LAW 
 
 Parsons than their editorial utterances, which 
 included every possible incitement to the use of 
 dynamite and the commission of wholesale mur- 
 der. In the issue of November 27, 1885, the 
 editors of the Arbeiter made the significant an- 
 nouncement that " Steel and iron are not on hand, 
 hut tin two or three inches in diameter. The 
 price is cheap" — a virtual advertisement of 
 material for bombs. 
 
 On April 8th the same paper observed: "A 
 number of strikers at Quincy yesterday fired upon 
 their bosses and not at the scabs. This is recom- 
 mended most emphatically for imitation." 
 
 On June 2 7th of the same year Spies wrote a 
 signed essay in the Alarm, explaining in detail 
 the preparation of dynamite bombs, and closed 
 it with these words: "It is necessary for the rev- 
 olutionist to experiment for himself. Especially 
 should he practise the knack of throwing bombs." 
 
 Advice of this nature appeared in almost 
 every issue of the Arbeiter up to the time of the 
 outrage, and in the copy of March 15, 1886, the 
 editors answered a suggestive communication 
 signed "Seven Lovers of Peace" as follows: 
 "A dynamite cartridge explodes not through mere 
 concussion when thrown. A concussion-primer 
 is necessary." 
 
 260 
 
PEOPLE vs. SPIES et al. 
 
 Indefatigable as Spies and Schwab were in 
 the dissemination of such information and advice 
 Parsons was even more active. In the columns 
 of the Alarm on February 21, 1885, murder was 
 openly advocated as follows: "Dynamite! Of 
 .all good stuff this is the stuff. Stuff several 
 pounds of this sublime stuff into an inch pipe 
 (gas or water), plug up both ends, insert a cap 
 with a fuse attached, place this in the immediate 
 vicinity of a lot of rich loafers who live by the sweat 
 of other m^n's brows, and light the fuse. A most 
 cheerful and gratifying result will follow.'^ 
 
 Again, in another issue, this sentiment ap- 
 peared: "Nothing but the uprising of the people 
 and a bursting open of the stores . . . and a free 
 application of dynamite to every one who opposes 
 will relieve the world. . . . Seeing the amount of 
 needless suffering about us, we say a vigorous 
 use of dynamite is both human and economical.'^ 
 
 It is not probable that Parsons himself wrote 
 either of those paragraphs, but day after day 
 he had sanctioned this policy in varying forms, 
 and on April 24, 1886, only a short time before 
 the Haymarket meeting, the paper he edited 
 emphasized it in this fashion: "Workingmen 
 to Arms! War to the palace — peace to the cot- 
 tage, and death to luxurious idleness. . . . One 
 
 261 
 
DECISIVE BATTLES OF THE LAW 
 
 pound of dynamite is better than a bushel of 
 bullets. Make your demand for eight hours with 
 weapons in your hands to meet the capitalistic 
 blood-hounds, police and militia, in the proper 
 manner." 
 
 Not only did these and similar exhortations 
 reveal the editors' intentions, but their printed 
 and spoken words proved that their only remedy 
 for grievances was terrorism through wholesale 
 murder and violence. With the eight-hour 
 strike or the ballot or any similar effort on the 
 part of working-men to better their condition 
 they displayed little or no sympathy. In fact, 
 they frankly declared their disbelief in such 
 methods, and it was evident that their only in- 
 terest in the labor movement was the chance 
 it afforded for collisions with the authorities 
 and the carrying out of their desperate pro- 
 gramme. 
 
 This sort of evidence accumulated day after 
 day, until the court-room was fairly littered 
 with papers, and when the prosecution closed its 
 case on July 31st, the preaching if not the prac- 
 tice of the defendants had been demonstrated 
 beyond any chance of contradiction. 
 
 Confronted by this overwhelming proof, the 
 counsel for the defence set valiantly to work 
 
 262 
 
PEOPLE vs. SPIES et al. 
 
 directing their efforts to proving that neither 
 Fischer, Engel, Schwab, Lingg, nor Neebe was at 
 or near the Haymarket when the crime was com- 
 mitted ; that the meeting had been orderly, and 
 that none of the defendants had resisted the 
 poUce. In all of this they were fairly successful, 
 but the proofs did not meet the issues, for the 
 presence or absence of the defendants was not 
 material in view of the conspiracy charged. More- 
 over, in its issue of March i6, 1885, the Arbeiter 
 gave specific advice on this very point to those 
 contemplating a ' 'revolutionary deed. " " Whoever 
 is willing to execute a deed," wrote the editors, 
 ''has to put the question to himself whether he is 
 able or not to carry out the action by himself. . . . 
 If not, let him look for just as many fellows as he 
 must have. Not one more nor less; with these let 
 him unite himself to a fighting group. . . . Has 
 the deed been completed? Then the group of ac- 
 tion dissolves at once . . . according to an under- 
 standing which must be had beforehand, leaves 
 the place of action, and scatters in all directions." 
 Finally, Spies, Fielden, Schwab, and Parsons 
 led a forlorn hope by taking the stand and en- 
 deavoring to overcome the unfavorable im- 
 pression which their writings and speeches had 
 created. But though they stoutly asserted 
 
 263 
 
DECISIVE BATTLES OF THE LAW 
 
 their innocence of any specific plot against the 
 police, and denied all knowledge of the per- 
 petrator of the crime, they could not but admit 
 that they had advocated similar deeds for years, 
 and the fact that they disapproved and dep- 
 recated the particular violence of the moment 
 was no answer to the charge that they had open- 
 ly encouraged murderous defiance of the law, 
 and zealously endeavored to commit other less 
 intelligent men to the execution of their mad 
 designs. 
 
 For seven days the fight continued on these 
 lines, but on August i ith, both sides having rest- 
 ed, Assistant State's-Attomey Walker began to 
 sum up for the prosecution. During the next 
 eight days the lawyers for the defence and the 
 State alternated in addressing the jury, but here 
 again the exhibits spoke louder than any words, 
 for on the table before which Mr. Ingham stood 
 during his summing-up lay bombs of all descrip- 
 tions, fulminating caps, shells, melting-ladles, 
 and other tools of the dynamiter's trade, and 
 in plain sight of the jury were the red banners 
 and flags of the terrorists blazing with mottoes 
 urging defiance of the law. 
 
 Even with such odds against them the counsel 
 for the defence might still have made some im- 
 
 264 
 
PEOPLE vs. SPIES et al. 
 
 pression upon the jtiry had they been permitted 
 to follow the tactics adopted by Mr. Foster, 
 who, without attempting any defence of anarchy 
 made a dispassionate, logical, and lawyerlike 
 argument, admitting the criminal folly of his 
 chents' utterances, but insisting that there was 
 no proof that any word of theirs, written or 
 spoken, had ever reached the bomb-thrower's 
 ears, or that his monstrous deed had in any way 
 been instigated by the defendants. The jury 
 had no right to suppose this was so. The mere 
 fact that the defendants advocated violence was 
 not enotigh. For years freedom of speech had 
 been flagrantly abused without remonstrance, 
 the Ucense of the press had been permitted to 
 menace true liberty with impunity, and there 
 were other circumstances inculpating the public 
 and inviting mitigation of severity towards the 
 accused. 
 
 The prisoners themselves, however, some of 
 whom seemed not unanxious to pose as martyrs 
 for the "cause," hotly resented Mr. Foster's 
 plea, which resulted in his withdrawal from the 
 case, and they practically dictated the policy of 
 their other counsel. But the public was in no 
 mood for a defence of terrorism, and although 
 Messrs. Zeisler and Black made admirable pleas 
 
 265 
 
DECISIVE BATTLES OP THE LAW 
 
 along lines acceptable to their clients, the aud- 
 ience was visibly unsympathetic, and when Mr. 
 Grinnell replied, declaring that no one in Amer- 
 ica was afraid of anarchists, the galleries, which 
 had been unwisely opened to spectators, thun- 
 dered with ominous applause. This outbreak 
 was the only disturbance which marred the 
 dignity of the trial. 
 
 The judge then charged the jury, reciting, 
 among many other points, the Illinois statutes 
 defining an accessory as one who stands by and 
 aids in the commission of a crime, or who, -not 
 being present, advises, encourages, aids, or abets 
 in its commission, and declaring that such ac- 
 cessories be considered principals and punished 
 accordingly. 
 
 It was late in the afternoon of August igth — 
 almost two months after the opening of the trial 
 — when the jury retired, and a few hours later 
 it was rumored that they had reached an agree- 
 ment, and would render a sealed verdict the next 
 morning. 
 
 Under the Illinois law the jurors were re- 
 quired not only to declare the guilt or innocence 
 of the accused, but to prescribe the penalty in 
 case of conviction. It was therefore in their 
 power to acquit or to demand the de^th penalty 
 
 266 
 
PEOPLE vs. SPIES et al. 
 
 or to punish the defendants with imprisonment 
 for any term of years not less than fourteen. 
 In his closing address Mr. Grinnell had not in- 
 voked the extremity of the law against Neebe, 
 but he had declared all the others deserving of 
 death, and the speedy agreement of the jurors 
 was regarded as highly significant. The mo- 
 ment they resumed their places in front of the 
 bench the foreman rose and handed a sealed 
 paper to the clerk, who opened it and read as 
 follows: "We, the jury, find the defendants, 
 August Spies, Michael Schwab, Samuel Fielden, 
 Albert R. Parsons, Adolph Fischer, George 
 Engel, and Louis Lingg, guilty of murder in the 
 manner and form charged in the indictment, 
 and fix the penalty at death. We find the de- 
 fendant Oscar W. Neebe guilty of murder in the 
 manner and form charged in the indictment, and 
 fix the penalty at imprisonment for fifteen 
 years." 
 
 No demonstration on the part of the audience 
 greeted this announcement, but a roar of cheers 
 from the crowd gathered before the court-house 
 floated in through the windows, and in the hush 
 that followed the jury was solemnly polled, each 
 jtiror signifying his individual concurrence in 
 the verdict. Thus ended the first capital case 
 
 267 
 
DECISIVE BATTLES OF THE LAW 
 
 in the United States involving abuse of the 
 liberty of the press. 
 
 The fight for the prisoners' lives did not, how- 
 ever, cease with the verdict. At the October 
 term of the court, on a motion for a new trial, 
 all of the condemned made long and some of 
 them very able speeches, demonstrating that 
 they were right-hearted though wrong-headed 
 men, and a year later, after an elaborate argu- 
 ment, in which Leonard Swett, Lincoln's old 
 associate, appeared for the defence, the Supreme 
 Court affirmed the verdict, although one of the 
 judges declared, however, that the trial had not 
 been free of legal error. 
 
 Lingg then committed suicide; Spies, Parsons, 
 Fischer, and Engel were executed; the sentences 
 of Schwab and Fielden were commuted to im- 
 prisonment for life, and they, together with 
 Neebe, were pardoned, after serving seven years, 
 by Governor Altgeld, whose action, bitterly re- 
 sented at the time, has come to be regarded as 
 a legitimate exercise of executive discretion. " 
 
 THE END