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It should be explained, en passant, that the work purported to be the monograph of P. C. Centz, Barrister.
Some have thought, perhaps erroneously, that the president and his advisers were, by it, induced to pause, and convoke leading jurisconsults; who actually met, and after much study and thought, reported that Davis must be civilly tried if at all; but that probably he could not be convicted. Among the statements on this subject, the following is selected from a most interesting letter, written in Richmond to the Norfolk Virginian, and published in 1873:
“ Another event of great historical interest, in which Judge Clifford participated, was the solemn consultation of a small number of the ablest lawyers of the North, at Washington, a few months after the war, upon the momentous question as to whether the federal government should commence a criminal prosecution against Jefferson Davis for his participation and leadership in the war of secession. In this council, which was surrounded at the time with the utmost secrecy, and which has never yet been described, was U. S. attorney-general Speed, Judge Clifford, William M. Evarts, and perhaps half a dozen others, who had been selected from the whole northern profession for their legal ability and acumen ; and the result of their deliberation was the sudden abandonment [of the idea of prosecution], in view of the insurmountable difficulties in the way of getting a final conviction, which were revealed by their patient study of the law bearing upon the case."
Notwithstanding the "sudden abandonment”in secret, change of intention was not allowed to transpire; and the defence were compelled to keep in readiness until 1869. During all this pendency of the case, President Johnson and his cabinet seemed to evade a trial by jury, but meanwhile to aim at getting the states' supreme court to lay down a national law of treason, so as to have a national control, by a national government, of national citizens, under the penalties of national treason; thus establishing that “ absolute supremacy,” of “the government” over allegiant states and citizens, which the Philadelphia convention of 1866 anticipatorily declared. Henry J. Raymond, the writer of the expression quoted above from the New York Times, was the writer of the address of the said convention.
In a letter from Mr. O'Conor to the author in London at the close of 1865, is the following: "To procure a forensic discussion of the point so ably argued by you, and a pre-arranged judicial determination of it by the supreme court, against the South, and in favor of his national government, has long been a favorite project with Mr. Johnson. He is persistently urged to it by his most intimate adviser; and it is distinctly avowed in the message just delivered. For a long time, those who possess means of knowing the intent of the president and his cabinet, have, almost without exception, asserted very positively, that Mr. Davis would be tried in a civil tribunal."
In the course of time, Mr. Davis was turned over by the military to the civil authority; and, finally, under a habeas corpus, admitted to bail, with Horace Greeley, Gerrit Smith, and others as bondsmen, early in 1867; and thenceforward a show of desire and readiness to try was kept up; insomuch that Mr. O'Conor did not abate his preparedness till the fall of 1868; when, on a motion to quash the indictment, the judges differed, and the case was certified up to the states' supreme tribunal, where it was finally extinguished by President Johnson's amnesty proclamation, without any laying down (or prostrating ?) of the law by the said tribunal.
To some, the prosecution seemed aiming to get around trial by jury, and before the supreme court, in order to merge the case in the aforesaid “pre-arranged ” decision ; but the author opines with diffidence, that Seward and Chase secretly managed to prevent that predetermined decree, which necessarily and fatally impugned statehood; they, if we judge from their history and declarations, being nothing if not devotees of the sovereignty of the American states.
These great men knew that commonwealths (New York and Ohio for example) were integrally the citizens thereof, and that the fealty of the citizens was the life of the state ; and that a national law of treason on national citizens, was absolute destruction of what they themselves called “indestructible states.” Hence it is presumable that they were opposed to the abovementioned design of the president.
The adverse sentiment was aided more or less by a large class of northern minds, who steadily opposed, not merely the military commission, but any trial. Conspicuous among them were Gerrit Smith, Horace Greeley, and ex-governor John A. Andrew
the latter expressing himself as follows, as is stated in the letter to the Norfolk Virginian, before mentioned: “It cannot be done. The criminal law has no application here. . . . When a whole people commit an act, rash, impolitic, and direful though it may be, ... it is impossible to consider the criminal law as being framed to meet the case.” Like Edmund Burke, these men “ knew of no way to frame an indictment of a whole people.”
Meanwhile, time was healing hurts, assuaging sorrows, mollifying resentments, wearing away antipathies and prejudices; and forgiveness and conciliation were copiously welling up from the bottom of the people's hearts, so that finally, in 1868, Mr. Davis's condemnation, once an easy task, became no longer possible ; and the case, as heretofore stated, came to a happy end.
What a change! Underwood, a year or two before, had said to a committee of congress, in reply to an inquiry if a jury could be packed — “It would be difficult, but it could be done. I could pack a jury to convict. I know very earnest, ardent union men in Virginia.” Such sentiments did not, however, long or widely prevail; and in December 1868, the New York Tribune doubted if it was ever possible to convict Davis, “unless the jury had been packed,” and “every democrat excluded.” Peace, with benign wings, was brooding over the land.
Providence, time, the better feelings of men, their sober second thoughts, and a myriad of moral forces, ever co-work to preserve these glorious commonwealths; and they now stand in serene and silent majesty, observed of every eye, and invoking the loyalty of every heart. Seward and Chase both, after the war, with emphasis proclaimed the states to be “ free,” “ stubborn,” “ indestructible.” Their life is independent; above “ government”; and they will not “down” at the bidding of murderous usurpation, for their being is that of the people ; and the self-defence of both the first law of nature is identical. Perverters should cease to "wreck themselves against necessity," for, as long as freedom is a part of God's smile on this continent,
the state will be the political form of the people. Bryant's apostrophe to liberty applies to the commonwealth :
“... Power at thee has launched his bolts,
And with his lightnings sinitten thee:
THE MODE AND TESTIMONY OF THE WORK.
Before concluding, it may be well to say that, wishing for criticism and correction of error, the author makes no apology for the manner of performing his task; but takes occasion to say, that, desiring everybody to read and believe, he has aimed to use simple, direct, and untechnical language, intelligible to all classes, and to pile up evidences on every contention of the book, so as to make doubt impossible. Chapter VII. of Part I., for example, decisively proves what all the fathers considered, and the people intended, our polity to be. And for such proofs, the statements of the deputies who devised, and the people who ordained it, are used, rather than the dicta of the administering agents, who became interested alike in its success and in their own further emoluments, and who began those assumptions of ungranted powers, which have since well-nigh proved fatal.
And upon this matter, it is well further to state, that as the great inquiry is one of fact, much care is taken to select the best testimony. After the federal system went into effect, party spirit, the desire of office, and the possession and use of public power and money (so perverting to the judgment and lowering to the morals), made the administrators of the government tend to become unfit for witnesses; and it is deemed unjust to themselves, as well as to the cause of institutional liberty, to use their statements. Indeed, if tested by interest, courts would reject them. Therefore the views of Hamilton, of Madison, and even of the great and good Washington, are not used, where they expressed them as officials, interested in the successful working of the great experiment.
Henry, Martin, Lowndes, Yates, Lansing, et id omne genus, are rejected, because, as enemies, they appealed to the people's fears, and denounced the system - not only making erroneous or over-stated objections, but yielding in no degree to decisive refutations, made by those who were in the convention of 1787, and knew the real intent of that body, as well as the meaning of the instrument.
Jefferson is not cited because, being abroad, he did not participate in the making of the plan; and because, upon its being put in operation, he gradually became a heated partisan. The resolutions of '98 and '99" and Madison's report, are dispensed with, because, instead of being the source of state-rights doctrines (as their devotees seem to suppose), they are simply deductions or corollaries from the state-rights facts adduced herein, which cover the whole ground of (as well as precede and include) the constitution itself. No use is made of the masterly arguments of those great men, Tucker, Taylor of Caroline, or Calhoun, as they are partisan, and furnish no apposite facts. Nor is the president, the congress, or the federal supreme court cited, since they can testify to nothing whatever to help us us to a vere dictum, on this pure question of fact. Their dicta cannot even dent or abrade an actuality, let alone destroy it. Nor can they give decisions on disputes as to political authority between the states and the federal agency of the states, a part of which agency the said functionaries are. Their jurisdiction can only be of questions “ under” the constitution of the states, and cannot reach those affecting the political existence and sovereignty of its makers, — such questions being most certainly above it — no matter whether the said makers are the people as a nation, or the people as states.
In short, no facts or authorities are used in the book, originating after the federal system was set in motion. The entire draught is from the head-spring — not a drop from the turbid river below! But it is well to say here that current practice, continued usage, and fit and timely explanation (ever and precisely based on reality and truth, with construction of doubts always and inexorably in favor of original authority) must be allowed due weight in the exposition of our polity.
THE SECOND CENTURY OF THE FEDERAL SYSTEM.
We have now a full retrospect of our departed century, as to its results on our political institutions. Its lessons are imperious,