Thirty Years' View (Vol. II of 2)

At the death of Decatur, killed in that lamentable duel, I have heard Mr. Randolph tell, and he alone could tell it, of the agony of Rodgers as he stood over his dying friend, in bodily contention with his own grief – convulsed within, calm without; and keeping down the struggling anguish of the soul by dint of muscular power.

That feeling heart was doomed to suffer a great agony in the untimely death of a heroic son, emulating the generous devotion of the father, and perishing in the waves, in vain efforts to save comrades more exhausted than himself; and to whom he nobly relinquished the means of his own safety. It was spared another grief of a kindred nature (not having lived to see it), in the death of another heroic son, lost in the sloop-of-war Albany, in one of those calamitous founderings at sea in which the mystery of an unseen fate deepens the shades of death, and darkens the depths of sorrow – leaving the hearts of far distant friends a prey to a long agony of hope and fear – only to be solved in an agony still deeper.

Commodore Rodgers died at the head of the American navy, without having seen the rank of Admiral established in our naval service, for which I voted when senator, and hoped to have seen conferred on him, and on others who have done so much to exalt the name of their country; and which rank I deem essential to the good of the service, even in the cruising system I deem alone suitable to us.

CHAPTER XXXV.

ANTI-DUELLING ACT

The death of Mr. Jonathan Cilley, a representative in Congress from the State of Maine, killed in a duel with rifles, with Mr. Graves of Kentucky, led to the passage of an act with severe penalties against duelling, in the District of Columbia, or out of it upon agreement within the District. The penalties were – death to all the survivors, when any one was killed: a five years imprisonment in the penitentiary for giving or accepting a challenge. Like all acts passed under a sudden excitement, this act was defective, and more the result of good intentions than of knowledge of human nature. Passions of the mind, like diseases of the body, are liable to break out in a different form when suppressed in the one they had assumed. No physician suppresses an eruption without considering what is to become of the virus which is escaping, if stopped and confined to the body: no legislator should suppress an evil without considering whether a worse one is at the same time planted. I was a young member of the general assembly of Tennessee (1809), when a most worthy member (Mr. Robert C. Foster), took credit to himself for having put down billiard tables in Nashville. Another most worthy member (General Joseph Dixon) asked him how many card tables he had put up in their place? This was a side of the account to which the suppressor of billiard tables had not looked: and which opened up a view of serious consideration to every person intrusted with the responsible business of legislation – a business requiring so much knowledge of human nature, and so seldom invoking the little we possess. It has been on my mind ever since; and I have had constant occasions to witness its disregard – and seldom more lamentably than in the case of this anti-duelling act. It looked to one evil, and saw nothing else. It did not look to the assassinations, under the pretext of self-defence, which were to rise up in place of the regular duel. Certainly it is deplorable to see a young man, the hope of his father and mother – a ripe man, the head of a family – an eminent man, necessary to his country – struck down in the duel; and should be prevented if possible. Still this deplorable practice is not so bad as the bowie knife, and the revolver, and their pretext of self-defence – thirsting for blood. In the duel, there is at least consent on both sides, with a preliminary opportunity for settlement, with a chance for the law to arrest them, and room for the interposition of friends as the affair goes on. There is usually equality of terms; and it would not be called an affair of honor, if honor was not to prevail all round; and if the satisfying a point of honor, and not vengeance, was the end to be attained. Finally, in the regular duel, the principals are in the hands of the seconds (for no man can be made a second without his consent); and as both these are required by the duelling code (for the sake of fairness and humanity), to be free from ill will or grudge towards the adversary principal, they are expected to terminate the affair as soon as the point of honor is satisfied – and, the less the injury, so much the better. The only exception to these rules is, where the principals are in such relations to each other as to admit of no accommodation, and the injury such as to admit of no compromise. In the knife and revolver business, all this is different. There is no preliminary interval for settlement – no chance for officers of justice to intervene – no room for friends to interpose. Instead of equality of terms, every advantage is sought. Instead of consent, the victim is set upon at the most unguarded moment. Instead of satisfying a point of honor, it is vengeance to be glutted. Nor does the difference stop with death. In the duel, the unhurt principal scorns to continue the combat upon his disabled adversary: in the knife and revolver case, the hero of these weapons continues firing and stabbing while the prostrate body of the dying man gives a sign of life. In the duel the survivor never assails the character of the fallen: in the knife and revolver case, the first movement of the victor is to attack the character of his victim – to accuse him of an intent to murder; and to make out a case of self-defence, by making out a case of premeditated attack against the other. And in such false accusation, the French proverb is usually verified – the dead and the absent are always in the wrong.

The anti-duelling act did not suppress the passions in which duels originate: it only suppressed one mode, and that the least revolting, in which these passions could manifest themselves. It did not suppress the homicidal intent – but gave it a new form: and now many members of Congress go into their seats with deadly weapons under their garments – ready to insult with foul language, and prepared to kill if the language is resented. The act should have pursued the homicidal intent into whatever form it might assume; and, therefore, should have been made to include all unjustifiable homicides.

The law was also mistaken in the nature of its penalties: they are not of a kind to be enforced, if incurred. It is in vain to attempt to punish more ignominiously, and more severely, a duel than an assassination. The offences, though both great, are of very different degrees; and human nature will recognize the difference though the law may not: and the result will be seen in the conduct of juries, and in the temper of the pardoning power. A species of penalty unknown to the common law, and rejected by it, and only held good when a man was the vassal of his lord – the dogma that the private injury to the family is merged in the public wrong – this species of penalty (amends to the family) is called for by the progress of homicides in our country; and not as a substitute for the death penalty, but cumulative. Under this dogma, a small injury to a man's person brings him a moneyed indemnity; in the greatest of all injuries, that of depriving a family of its support and protector, no compensation is allowed. This is preposterous, and leads to deadly consequences. It is cheaper now to kill a man, than to hurt him; and, accordingly, the preparation is generally to kill, and not to hurt. The frequency, the wantonness, the barbarity, the cold-blooded cruelty, and the demoniac levity with which homicides are committed with us, have become the opprobrium of our country. An incredible number of persons, and in all parts of the country, seem to have taken the code of Draco for their law, and their own will for its execution – kill for every offence. The death penalty, prescribed by divine wisdom, is hardly a scare-crow. Some States have abolished it by statute – some communities, virtually, by a mawkish sentimentality: and every where, the jury being the judge of the law as well as of the fact, find themselves pretty much in a condition to do as they please. And unanimity among twelve being required, as in the English law, instead of a concurrence of three-fifths in fifteen, as in the Scottish law, it is in the power of one or two men to prevent a conviction, even in the most flagrant cases. In this deluge of bloodshed some new remedy is called for in addition to the death penalty; and it may be best found in the principle of compensation to the family of the slain, recoverable in every case where the homicide was not justifiable under the written laws of the land. In this wide-spread custom of carrying deadly weapons, often leading to homicides where there was no previous intent, some check should be put on a practice so indicative of a bad heart – a heart void of social duty, and fatally bent on mischief; and this check may be found in making the fact of having such arms on the person an offence in itself, prima facie evidence of malice, and to be punished cumulatively by the judge; and that without regard to the fact whether used or not in the affray.

The anti-duelling act of 1839 was, therefore, defective in not pursuing the homicidal offence into all the new forms it might assume; in not giving damages to a bereaved family – and not punishing the carrying of the weapon, whether used or not – only accommodating the degree of punishment to the more or less use that had been made of it. In the Halls of Congress it should be an offence, in itself, whether drawn or not, subjecting the offender to all the penalties for a high misdemeanor – removal from office – disqualification to hold any office of trust or profit under the United States – and indictment at law besides.

CHAPTER XXXVI.

SLAVERY AGITATION IN THE HOUSE OF REPRESENTATIVES, AND RETIRING OF SOUTHERN MEMBERS FROM THE HALL

The most angry and portentous debate which had yet taken place in Congress, occurred at this time in the House of Representatives. It was brought on by Mr. William Slade, of Vermont, who, besides presenting petitions of the usual abolition character, and moving to refer them to a committee, moved their reference to a select committee, with instructions to report a bill in conformity to their prayer. This motion, inflammatory and irritating in itself, and without practical legislative object, as the great majority of the House was known to be opposed to it, was rendered still more exasperating by the manner of supporting it. The mover entered into a general disquisition on the subject of slavery, all denunciatory, and was proceeding to speak upon it in the State of Virginia, and other States, in the same spirit, when Mr. Legare, of South Carolina, interposed, and —

"Hoped the gentleman from Vermont would allow him to make a few remarks before he proceeded further. He sincerely hoped that gentleman would consider well what he was about before he ventured on such ground, and that he would take time to consider what might be its probable consequences. He solemnly entreated him to reflect on the possible results of such a course, which involved the interests of a nation and a continent. He would warn him, not in the language of defiance, which all brave and wise men despised, but he would warn him in the language of a solemn sense of duty, that if there was 'a spirit aroused in the North in relation to this subject,' that spirit would encounter another spirit in the South full as stubborn. He would tell them that, when this question was forced upon the people of the South, they would be ready to take up the gauntlet. He concluded by urging on the gentleman from Vermont to ponder well on his course before he ventured to proceed."

Mr. Slade continued his remarks when Mr. Dawson of Georgia, asked him for the floor, that he might move an adjournment – evidently to carry off the storm which he saw rising. Mr. Slade refused to yield it; so the motion to adjourn could not be made. Mr. Slade continued, and was proceeding to answer his own inquiry put to himself – what was Slavery? when Mr. Dawson again asked for the floor, to make has motion of adjournment. Mr. Slade refused it: a visible commotion began to pervade the House – members rising, clustering together, and talking with animation. Mr. Slade continued, and was about reading a judicial opinion in one of the Southern States which defined a slave to be a chattel – when Mr. Wise called him to order for speaking beside the question – the question being upon the abolition of slavery in the District of Columbia, and Mr. Slade's remarks going to its legal character, as property in a State. The Speaker, Mr. John White, of Kentucky, sustained the call, saying it was not in order to discuss the subject of slavery in any of the States. Mr. Slade denied that he was doing so, and said he was merely quoting a Southern judicial decision as he might quote a legal opinion delivered in Great Britain. Mr. Robertson, of Virginia, moved that the House adjourn. The Speaker pronounced the motion (and correctly), out of order, as the member from Vermont was in possession of the floor and addressing the House. He would, however, suggest to the member from Vermont, who could not but observe the state of the House, to confine himself strictly to the subject of his motion. Mr. Slade went on at great length, when Mr. Petrikin, of Pennsylvania, called him to order; but the Chair did not sustain the call. Mr. Slade went on, quoting from the Declaration of Independence, and the constitutions of the several States, and had got to that of Virginia, when Mr. Wise called him to order for reading papers without the leave of the House. The Speaker decided that no paper, objected to, could be read without the leave of the House. Mr. Wise then said:

"That the gentleman had wantonly discussed the abstract question of slavery, going back to the very first day of the creation, instead of slavery as it existed in the District, and the powers and duties of Congress in relation to it. He was now examining the State constitutions to show that as it existed in the States it was against them, and against the laws of God and man. This was out of order."

Mr. Slade explained, and argued in vindication of his course, and was about to read a memorial of Dr. Franklin, and an opinion of Mr. Madison on the subject of slavery – when the reading was objected to by Mr. Griffin, of South Carolina; and the Speaker decided they could not be read without the permission of the House. Mr. Slade, without asking the permission of the House, which he knew would not be granted, assumed to understand the prohibition as extending only to himself personally, said – "Then I send them to the clerk: let him read them." The Speaker decided that this was equally against the rule. Then Mr. Griffin withdrew the objection, and Mr. Slade proceeded to read the papers, and to comment upon them as he went on, and was about to go back to the State of Virginia, and show what had been the feeling there on the subject of slavery previous to the date of Dr. Franklin's memorial: Mr. Rhett, of South Carolina, inquired of the Chair what the opinions of Virginia fifty years ago had to do with the case? The Speaker was about to reply, when Mr. Wise rose with warmth, and said – "He has discussed the whole abstract question of slavery: of slavery in Virginia: of slavery in my own district: and I now ask all my colleagues to retire with me from this hall." Mr. Slade reminded the Speaker that he had not yielded the floor; but his progress was impeded by the condition of the House, and the many exclamations of members, among whom Mr. Halsey, of Georgia, was heard calling on the Georgia delegation to withdraw with him; and Mr. Rhett was heard proclaiming, that the South Carolina members had already consulted together, and agreed to have a meeting at three o'clock in the committee room of the District of Columbia. Here the Speaker interposed to calm the House, standing up in his place and saying:

"The gentleman from Vermont had been reminded by the Chair that the discussion of slavery, as existing within the States, was not in order; when he was desirous to read a paper and it was objected to, the Chair had stopped him; but the objection had been withdrawn, and Mr. Slade had been suffered to proceed; he was now about to read another paper, and objection was made; the Chair would, therefore, take the question on permitting it to be read."

Many members rose, all addressing the Chair at the same time, and many members leaving the hall, and a general scene of noise and confusion prevailing. Mr. Rhett succeeded in raising his voice above the roar of the tempest which raged in the House, and invited the entire delegations from all the slave States to retire from the hall forthwith, and meet in the committee room of the District of Columbia. The Speaker again essayed to calm the House, and again standing up in his place, he recapitulated his attempts to preserve order, and vindicated the correctness of his own conduct – seemingly impugned by many. What his personal feelings were on the subject (he was from a slave State), might easily be conjectured. He had endeavored to enforce the rules. Had it been in his power to restrain the discussion, he should promptly have exercised the power; but it was not. Mr. Slade, continuing, said the paper which he wished to read was of the continental Congress of 1774. The Speaker was about to put the question on leave, when Mr. Cost Johnson, of Maryland, inquired whether it would be in order to force the House to vote that the member from Vermont be not permitted to proceed? The Speaker replied it would not. Then Mr. James J. McKay, of North Carolina – a clear, coolheaded, sagacious man – interposed the objection which headed Mr. Slade. There was a rule of the House, that when a member was called to order, he should take his seat; and if decided to be out of order, he should not be allowed to speak again, except on the leave of the House. Mr. McKay judged this to be a proper occasion for the enforcement of that rule; and stood up and said:

"That the gentleman had been pronounced out of order in discussing slavery in the States; and the rule declared that when a member was so pronounced by the Chair, he should take his seat, and if any one objected to his proceeding again, he should not do so, unless by leave of the House. Mr. McKay did now object to the gentleman from Vermont proceeding any farther."

Redoubled noise and confusion ensued – a crowd of members rising and speaking at once – who eventually yielded to the resounding blows of the Speaker's hammer upon the lid of his desk, and his apparent desire to read something to the House, as he held a book (recognized to be that of the rules) in his hand. Obtaining quiet, so as to enable himself to be heard, he read the rule referred to by Mr. McKay; and said that, as objection had now, for the first time, been made under that rule to the gentleman's resuming his speech, the Chair decided that he could not do so without the leave of the House. Mr. Slade attempted to go on: the Speaker directed him to take his seat until the question of leave should be put. Then, Mr. Slade, still keeping on his feet, asked leave to proceed as in order, saying he would not discuss slavery in Virginia. On that question Mr. Allen, of Vermont, asked the yeas and nays. Mr. Rencher, of North Carolina, moved an adjournment. Mr. Adams, and many others, demanded the yeas and nays on this motion, which were ordered, and resulted in 106 yeas, and 63 nays – some fifty or sixty members having withdrawn. This opposition to adjournment was one of the worst features of that unhappy day's work – the only effect of keeping the House together being to increase irritation, and multiply the chances for an outbreak. From the beginning Southern members had been in favor of it, and essayed to accomplish it, but were prevented by the tenacity with which Mr. Slade kept possession of the floor: and now, at last, when it was time to adjourn any way – when the House was in a condition in which no good could be expected, and great harm might be apprehended, there were sixty-three members – being nearly one-third of the House – willing to continue it in session. They were:

"Messrs. Adams, Alexander, H. Allen, J. W. Allen, Aycrigg, Bell, Biddle, Bond, Borden, Briggs, Wm. B. Calhoun, Coffin, Corwin, Cranston, Curtis, Cushing, Darlington, Davies, Dunn, Evans, Everett, Ewing I. Fletcher, Fillmore, Goode, Grennell, Haley, Hall, Hastings, Henry, Herod, Hoffman, Lincoln, Marvin, S. Mason, Maxwell, McKennan, Milligan, M. Morris, C. Morris, Naylor, Noyes, Ogle, Parmenter, Patterson, Peck, Phillips, Potts, Potter, Rariden, Randolph, Reed, Ridgway, Russel, Sheffer, Sibley, Slade, Stratton, Tillinghast, Toland, A. S. White, J. White, E. Whittlesey – 63."

The House then stood adjourned; and as the adjournment was being pronounced, Mr. Campbell of South Carolina, stood up on a chair, and calling for the attention of members, said:

"He had been appointed, as one of the Southern delegation, to announce that all those gentlemen who represented slaveholding States, were invited to attend the meeting now being held in the District committee room."

Members from the slave-holding States had repaired in large numbers to the room in the basement, where they were invited to meet. Various passions agitated them – some violent. Extreme propositions were suggested, of which Mr. Rhett, of South Carolina, in a letter to his constituents, gave a full account of his own – thus:

"In a private and friendly letter to the editor of the Charleston Mercury amongst other events accompanying the memorable secession of the Southern members from the hall of the House of Representatives, I stated to him, that I had prepared two resolutions, drawn as amendments to the motion of the member from Vermont, whilst he was discussing the institution of slavery in the South, 'declaring, that the constitution having failed to protect the South in the peaceable possession and enjoyment of their rights and peculiar institutions, it was expedient that the Union should be dissolved; and the other, appointing a committee of two members from each State, to report upon the best means of peaceably dissolving it.' They were intended as amendments to a motion, to refer with instructions to report a bill, abolishing slavery in the District of Columbia. I expected them to share the fate, which inevitably awaited the original motion, so soon as the floor could have been obtained, viz., to be laid upon the table. My design in presenting them, was, to place before Congress and the people, what, in my opinion, was the true issue upon this great and vital question; and to point out the course of policy by which it should be met by the Southern States."

But extreme counsels did not prevail. There were members present, who well considered that, although the provocation was great, and the number voting for such a firebrand motion was deplorably large, yet it was but little more than the one-fourth of the House, and decidedly less than one half of the members from the free States: so that, even if left to the free State vote alone, the motion would have been rejected. But the motion itself, and the manner in which it was supported, was most reprehensible – necessarily leading to disorder in the House, the destruction of its harmony and capacity for useful legislation, tending to a sectional segregation of the members, the alienation of feeling between the North and the South; and alarm to all the slaveholding States. The evil required a remedy, but not the remedy of breaking up the Union; but one which might prevent the like in future, while administering a rebuke upon the past. That remedy was found in adopting a proposition to be offered to the House, which, if agreed to, would close the door against any discussion upon abolition petitions in future, and assimilate the proceedings of the House, in that particular, to those of the Senate. This proposition was put into the hands of Mr. Patton, of Virginia, to be offered as an amendment to the rules at the opening of the House the next morning. It was in these words:

"Resolved, That all petitions, memorials, and papers, touching the abolition of slavery or the buying, selling, or transferring of slaves, in any State, District, or Territory, of the United States, be laid on the table, without being debated, printed, read, or referred, and that no further action whatever shall be had thereon."