The Continental Monthly, Vol. 6, No 3, September 1864

Such marching, with its twenty, twenty-five, or thirty miles a day, is light compared with the harassing fatigues of a retreat, before the pursuit of a triumphant enemy. To accomplish this movement, so as to save the organization and the material of an army, without too great a loss of life, tests in the highest degree the skill of a commander and the fortitude of the men. In a retreat, the usual order of marching is reversed—the trains are sent in the advance, and the troops must remain behind for their protection. Often it happens that they are obliged to remain in line all day, to check by fighting the advance of the enemy, and then continue their march by night. The dead and wounded must, to a great extent, be left on the field; supplies are perhaps exhausted, with no opportunity for replenishment; the merciless cannon of the enemy are constantly thundering in the rear, his cavalry constantly making inroads upon the flanks. Weary, hungry, exhausted, perhaps wounded, the soldier must struggle along for days and nights, if he would avoid massacre or consignment to the cruelties of a prison. The rout of a great army—the disorganization and confusion of a retreat, even when well conducted—the toil and suffering and often slaughter—are the saddest scenes earth can present. Who can paint the terrors of that winter retreat of the French from Moscow? Fortunately, in our war we have had nothing to equal in horrors the retreats of European armies, but no one who passed through those trying seven days fighting and marching which closed the Peninsula campaign, can ever fail to shudder at the sufferings imposed on humanity by a retreat.

VIOLATIONS OF LITERARY PROPERTY

THE FEDERALIST.—LIFE AND CHARACTER OF JOHN JAY

Among the rights which are ill protected by law, and yet of essential importance to the individual and society, are those of literary property. If any bequest should be sacred, it is that of thought, convictions, art—the intellectual personality that survives human life—and the 'local habitation and the name' whereby genius, opinion, sentiment—what constitutes the best image and memorial of a life and a mind, a character and a career, is preserved and transmitted. And yet, with all our boasted civilization and progress, no rights are more frequently or grossly violated, no wrongs so little capable of redress, as those relating to literary property. Herein there is a singular moral obtuseness a want of chivalry, an inadequate sense of obligation—doubtless in part originating in that unjust legislation, or rather want of legislation, whereby international law protects the products of the mind and recognizes national literature as a great social interest. Within a few months, the biography of our pioneer author,13 whose memory his life and character, not less than his genius, had singularly endeared to the whole range of English readers—was prepared by a relative designated by himself, who, with remarkable tact and fidelity, completed his delicate task, according to the materials provided and the wishes expressed by his illustrious kinsman. A London publisher reprinted the work, with eighty pages interpolated, wherein, with an utter disregard to common delicacy toward the dead or self-respect in the living, unauthentic gossip is made to desecrate the reticent and consistent tone of the work, pervert its spirit, and detract from its harmonious attraction and truth. A greater or more indecent and unjustifiable liberty was never taken by a publisher with a foreign work; it was an insult to the memory of Washington Irving, to his biographer and those who cherish his fame.

Not many weeks ago, an eloquent young divine, who had in no small degree saved the State of California to the Union, by his earnest and constant plea for national integrity, died in the midst of his useful and noble career: forthwith the publisher of a Review, in whose pages some of his early essays had appeared, announced their republication: in vain the friends and family of Starr King protested against so crude and limited a memorial of his genius, and entreated that they might be allowed to glean and garner more mature and complete fruits of his pen, as a token of his ability and his career; and thus do justice, by careful selection and well-advised preparation, to the memory they and their fellow citizens so tenderly and proudly cherished: no; the articles had been paid for, the recent death of the writer gave them a market value, and the publishers were resolved to turn them to account, however good taste and right feeling and sacred associations were violated.

Again, one of the few legal works of American origin which has a standard European reputation is Wheaton's 'International Law.' Its author was eminently national in his convictions; foreign service and patriotic instincts had made him thoroughly American in his sympathies and sentiments; no one of our diplomatic agents sent home such comprehensive and sagacious despatches, having in view 'the honor and welfare of the whole country;' and no one who knew Henry Wheaton doubts that, were he living at this hour, all his influence, hopes, and faith would be identified with the Union cause.

Yet an edition14 of his great work has lately appeared, edited in an opposite interest; and the standard reference on the law of nations, so honorable to the legal knowledge, perspicacity, and candor of an American author, goes forth perverted and deformed by annotations and comments indirectly sympathetic with the wicked rebellion now devastating the nation. Can a greater literary outrage be imagined? Is it possible more grossly to violate the rights of the dead?

Aware that certain rules apply to the annotation of legal treatises not recognized in other departments of literature, and diffident of personal judgment in this respect, in order to ascertain how far our sense of this violation of literary property and reputation was well founded, how far we were right in asserting a partisan aim, we requested an accomplished lawyer, thoroughly versed in the literature of his profession, and experienced as an editor, to examine this edition of Wheaton, and state his own opinion thereof: to him we are indebted for the following clear and palpable instances of a perverted use of a standard American treatise, endeared to many living friends of the author, and all his intelligent and patriotic countrymen: of the 'additions' to the original by the editor, he says:

'1. They indicate considerable reading and industry, but are far too voluminous, and abound in extended extracts from speeches, state papers, and statutes, which should have been omitted altogether, or very much abridged.

'2. They contain no language complimentary to the Administration, little or nothing in defence of the Government—none that can be offensive to Jefferson Davis; and, as a whole, they give the impression that he regards the Confederate position as being quite as defensible, on the principles of international law, as that of the United States.

'3. He has no word of censure for Lord John Russell, and no word of apology for Mr. Seward. He nowhere calls the Confederates rebels, and nowhere thinks the conduct of France suspicious or unfriendly.

'4. His positions are unquestionably the same with those of Seymour, Bishop Hopkins, Professor Morse, Judge Woodward, etc.

'5. He is everywhere cold—more willing to wound than bold to strike; and yet he fretfully commits himself before he gets through, in defence of slavery and extreme democratic positions.

'6. He does not pretend that he was ever requested by the great author with whose productions he has taken such liberties to undertake the editorial duties.

'His language is so general that one needs to read it carefully to feel the full force of what I have said.

'In the preface (page 1-20), he speaks of 'Spanish American independence, now jeopardized by our fratricidal contest'—fratricidal is indeed a favorite word; he uses it in an offensive sense as regards the United States. Page 99, note, he says of slavery, what is utterly untrue, that 'the Constitution recognized it as property, and pledges the Federal Government to protect it.' The noble act of June 19, 1862, forbidding slavery in United States Territories, he comments on in this wise: 'This act wholly ignores the decision of the Supreme Court (meaning the Dred Scott case) on the subject of slavery.' He then inserts the whole act in the note, only to hold it up to censure—'testing it by international law' as interpreted by him. At page 605 he denounces that law as 'obnoxious not only to the principles of international law, but to the Constitution of the United States.' His note and extracts, including long extracts from speeches of Thomas, of Massachusetts, and Crittenden, of Kentucky, fill more than twenty-two pages—reserving a line or two of text at the top. To say nothing of the sentiments, such notes are a shameful abuse of the reputation and work of Mr. Wheaton, and a perversion of the duties and rights of an editor. But a word of the sentiments. He exhausts himself and the records of the past in accumulating precedents to condemn the policy of freeing slaves as a war measure, or of arming them in the nation's defence.

'At page 614, in this same note, speaking of the effect of the Proclamation of Emancipation, he says: 'The attention of publicists may well be called to the withdrawal of the four millions of men from the cultivation of cotton, which, is the source of wealth of the great commercial and manufacturing nations of Europe.' That is, he suggests this as a ground for interference in our affairs on the principles of his international law. He further adds that this cultivation of cotton is 'by nature a virtual monopoly of the seceded States;' that is, nature preordained the negroes to be slaves in the seceded States to raise cotton; and hence natural and international law require emancipation proclamations to be put down. Did Stephens ever go farther? Again, on the same page, he says: 'The effect on the United States, in the event of the reestablishment of the Federal authority,' without the Proclamation in force, etc., 'would be seriously felt, in its financial bearings,' etc.—'abroad as well as at home.' Not satisfied, therefore, with suggesting a justification of intervention, on the basis of international law, he appeals to the cupidity of foreigners as well as natives, by hinting also that financial ruin may follow the triumph of Freedom and the Federal armies. What a shame that an American editor should use the great name of Wheaton to give dignity to such suggestions in foreign countries.' He then gives—all in the same interminable note (page 614)—an extract from The Morning Chronicle, of May 16, 1860, of which I give you this delicious morsel: 'No blacks, no cotton, such is the finality.' At page 609, he speaks of the 'incompatibility of confiscation of property with the present state of civilization.' At page 609, he quotes, with evident delight, the sanctimonious despatch of Lord John Russell about sinking ships in Charleston harbor, which his lordship calls a 'project only worthy the times of barbarism;' and the American annotator, who could use page after page to degrade his own Government for emancipating slaves, of course could not be expected to refer to any of the precedents that would have silenced Lord John, and have justified the United States; and he therefore passes on with no reference to them.

'At page 669, Mr. Wheaton says: 'The validity of maritime captures must be determined in a court of the captor's Government,' etc. This American editor does not so much as allude to the fact, that while he is writing, the highways of the ocean are lighted by the fires of American merchantmen, plundered, and then burned, without condemnation of any court, by vessels fitted out in English ports, in open violation of the first principles of international law, and which have never been in any port under the jurisdiction of the piratical Confederacy!

'Some of his indications of sympathy with the rebellion are quite in excess of those of Lord John, with whose views, on the whole, he seems well enough pleased. For example, at page 254, Lord John is quoted as follows: 'Has a commission from the so-called President Davis,' etc.; but at page 107 and generally, the American editor, not willing to imply that there is any doubt about the reality or permanency of the Confederate concern, nor being willing to offend its managers, speaks of 'the President of the Confederate States,' and 'an act of Congress of the Confederate States,' etc.; and when he reaches page 535, as if to set Lord John a better example (and I believe there had been some Confederate victories about the time he was writing that note), he says: 'A proclamation was issued by President Davis, on the 14th of August, 1861, ordering all citizens adhering to the Government of the United States, etc., to depart from the Confederate States in forty days.' It is very evident the author approves this order as warranted by international law, at least according to his interpretation thereof.

'Need I go farther to satisfy you of the temper and character of the notes, and the views of their author? I can hardly suppress the expression of my indignation that such a use should have been made of this great national work—that such an opportunity should have been lost to say something worthily in favor of colonization and freedom, and in vindication of our nation, in its great struggle with the relics of barbarism in its midst, and with the selfish and ambitious spirits of the European continent, so ready to take advantage of our troubles to promote their own schemes.'

We now come to another and more generally obnoxious instance of this use of standard national works for personal or political objects. The 'Federalist,' from the circumstances under which it was written, the influence it exerted, the events with which it is associated, the character of the writers, and the ability manifest both in their arguments and the style—has long been regarded as a political classic. It was the text book of a large and intelligent party at the time of and long subsequent to the adoption of the Constitution; and few works of political philosophy, written to meet an exigency and prepare the way for a governmental change, have attained so high and permanent a rank among foreign critics and historians. It is evident that such a work, whoever owns the copyright or boasts the authorship, has a national value and interest. To preserve it intact, to keep it in an eligible and accessible form before the public, is all that any editor or publisher has a right to claim. Much has been written as to the authorship of the respective papers, and some passages have been variously rendered in different editions; but the general scope and merit of the work, and the obvious and unchallenged identity of style and opinion with the acknowledged authors as regards most of the articles, make the discussions on these points of comparative little significance to the reader of the present day, who regards the work as a whole, seizes its essential traits, and is en rapport with its magnanimous tone, so wholly opposed to petty division of credit in a labor undertaken from patriotic motives, and by scholars and gentlemen. Enough that we have here the reasonings of enlightened citizens, the views of statesmen, the arguments whereby the claims of the Constitution were vindicated. Whoever is familiar with the history of the period, finds in this remarkable work a memorable illustration of that rectitude and wisdom which presided over the early counsels of the nation, and an evidence of the rare union of sagacity and comprehensiveness, of liberal aspiration and prudential foresight, of conscientiousness and intelligence, which has won for the founders of the republic the admiration of the world. In these pages, how much knowledge of the past is combined with insight as to the future, what common sense is blent with learning, what perspicacity with breadth of view! Each department of the proposed government is described and analyzed; the political history of Greece, Rome, the Italian republics, France, and Great Britain examined for precedents and illustrations; popular objections answered; popular errors rectified; this provision explained, that clause justified; the judicial, legislative, and executive functions defined; national revenue discussed in all its relations; the advantages of our civil list, of a republic over a democracy in controlling the effects of faction, are clearly indicated; as are those attending the reservation of criminal and civil justice to the respective States: on the one hand the defects of the old Confederacy are stated with emphasis and truth, and on the other, the transcendent benefits of Federal union are elaborately argued, and economy, stability, and vigor proved to be its legitimate fruits. Of the evils of the old system, it is said: 'Let the point of extreme depression to which our national dignity and credit have sunk, let the inconvenience felt everywhere from a lax and ill-administered government, let the revolt of a part of North Carolina, the memory of insurrection in Pennsylvania, and actual insurrection in Massachusetts, declare it.' An unique distinction of this political treatise is that while Pericles, Cato, Hume, Montesquieu, Junius, and other classical and modern authorities are cited with scholarly tact, the most practical arguments drawn from the facts of the hour and the needs of the people, are conveyed in language the most lucid and impressive. To give a complete analysis of the 'Federalist' would require a volume; the glance we have cast upon its various topics sufficiently indicates the extent and importance of the work. Not less memorable is the spirit in which it was undertaken. 'A nation without a national government,' it is said, 'is, in my view, an awful spectacle;' and elsewhere—'The establishment of a constitution in times of profound peace, by the voluntary consent of a whole people, is a prodigy, to the completion of which I look forward with trembling anxiety.' 'I dread,' writes Jay, 'the more the consequences of new attempts, because I know that powerful individuals in this and in other States are enemies to a General National Government in every possible shape.'

Under such a sense of responsibility, with such patriotic solicitude did Hamilton, Madison, and Jay plead for the new Constitution with their fellow citizens of New York in the journals of the day, and it is these fragmentary comments and illustrations which, subsequently brought together in volumes, constitute 'the Federalist'; and well did they, toward the close of the discussion, observe: 'Let us now pause and ask ourselves whether, in the course of these papers, the proposed Constitution has not been satisfactorily vindicated from the aspersions thrown upon it, and whether it has not been shown worthy of the public approbation and necessary to the public safety and prosperity.' Whatever degree of sympathy or antagonism the intelligent reader of the 'Federalist' may feel, he can scarcely fail to admit that it is a masterly discussion of principles, and that the influence it exerted in securing the ratification of the Constitution in the State of New York, was a legitimate result of intelligent and conscientious advocacy. But the work has other than merely historical and literary claims upon our esteem at this hour. Its principles find confirmation here and now, in a degree and to an extent which lends new force and distinction to its authors as writers of political foresight and patriotic prescience. There are innumerable passages as applicable to the events of the last three years as if suggested by them; there are arguments and prophecies which have only attained practical demonstration through the terrible ordeal of civil war now raging around and in the heart of the republic.

When we saw the announcement of a new edition15 of this national work, we hailed it as most seasonable and desirable: when the first volume came under our notice, our first feeling was one of gratitude to the editor for having taken such care to reproduce the work with the greatest possible correctness of text, obtained by patient collation of the different editions: regarding his labors as those of a disinterested historical student, ambitious to bring before the public a work full of warning and wisdom for this terrible national crisis, we at first saw in his annotations and comments only the labor of love whereby a standard work is illustrated and made more emphatic and complete: but, ere long, we found a spirit of detraction at work, a want of sympathy with the tone and a want of understanding of the motives of the authors, which made us regret that, instead of this partisan edition, the 'Federalist' had not been reissued with a brief explanatory introduction, and without note or comment.

Instead of a hearty recognition, we find a narrow interpretation of these eminent men: long-exploded slanders, born of partisan spite, are more in the mind of the editor than the permanent and invaluable traits which, to a generous and refined mind, constitute the legitimate claims of the work itself and the authors thereof. Guizot remarks: 'In the discussions of the numbers' (the 'Federalist'), 'for all that combines a profound knowledge of the great elementary principles of human government with the wisest maxims of practical administration, I do not know in the whole compass of my reading, whether from ancient or modern authors, so able a work.' The Edinburgh Review says: 'The 'Federalist' is a publication that exhibits an extent and precision of information, a profundity of research and an acuteness of understanding, which would have done honor to the most illustrious statesmen of ancient or modern times.'

In contrast with these and similar instances of eminent foreign appreciation, the editor of this edition of the 'Federalist' attributes to tact what is due to truth, represents the people, as such, as opposed to the Constitution, and Hamilton, Jay, and Madison 'poor antagonists' in combating their objections; if so, how does he account for the remarkable triumph of their dispassionate exposition and lucid arguments? In all political and literary history there are few more benign and distinguished examples of the practical efficiency of intelligent, patriotic, and conscientious reasoning against ignorance, prejudice, and partisan misrepresentation. And yet, in the face of this testimony, by the self-constituted editor of this national work, Hamilton is described as sophistical and disingenuous, whose object is to deceive rather than to instruct, to mislead rather than enlighten, and whose motives are partisan rather than patriotic.

Throughout the introduction there is a spirit of latent detraction; insinuations against the aims and methods, if not against the character of the illustrious men whose memories are our most precious inheritance; we feel that, however industrious in research and ingenious in conjecture, the tone and range of the critic's mind are wholly inadequate for any sympathetic insight as to the nature of the men whose writings he undertakes to reintroduce to the public—and this irrespective of any difference of political opinion: something more than verbal accuracy and patient collation is requisite to interpret the 'Federalist' and appreciate its authors; even a political opponent, of kindred social and personal traits, would do better justice to the theme: and a truly patriotic citizen of the republic, at such a crisis as the present, could never find therein an appropriate occasion to magnify political differences at the expense of national sentiment.

Whatever the literary merit or political interest of the 'Federalist,' its moral value is derived from our faith in the absolute sincerity and profound convictions of its authors: not only does the internal evidence of every page bear emphatic testimony thereto, but the correspondence of each writer as well as of contemporary statesmen, attest the same truth: they regarded the condition of the country as ruinous, and lamented that the fruits of victory turned to ashes on the lips of the people, because there was no homogeneous and vital organization to conserve and administer the invaluable blessings won by the sword: against the suicidal jealousy of State rights as adequate for prosperous self-reliance without the bonds and blessings of a vital National Government, they earnestly directed the most patriotic and intelligent arguments: of these the 'Federalist' is the chief repertory; hence its value and interest as a popular treatise which prepared the way for the intelligent adoption of the Constitution; yet in this edition the introductory remarks impugn the sincerity of the authors, and attempt to revive the political heresy of extreme State as opposed to Federal power, which it is the primary object of the work to expose and condemn; and this at a time when the fatal doctrine is in vogue as what may be called the metaphysical apology for the most base and barbarous rebellion against free government recorded in history. According to this editor, Chancellor Livingston was 'dilatory and uncertain,' Duane sympathized with the Tories in power, Hamilton exaggerated the troubles of the country and consciously sought to make his fellow citizens attribute, against the facts, the depreciated currency and the dearth of trade to the weakness of the Confederation—making a false issue to effect a political triumph: 'his plan of operations,' his 'tact,' are referred to as if, instead of being a true patriot and conscientious statesman, he was a mere special pleader, intriguing and ambitious. Add to this that, when introducing the 'Federalist' to the public in what purports to be an historical preface, he is silent on the wonderful fruits of the Constitution therein advocated—and fails to indicate, as would any candid critic, the remarkable proofs which time and experience yield of the practical wisdom and patriotic foresight of the men whose honorable prestige he thus indirectly seeks to undermine. Jay, we are told, was regarded 'by the majority of his fellow citizens as selfish, impracticable, and aristocratic;' he is said to have been 'induced to undertake' his share of the 'Federalist;' he speaks of the small part he actually did write, without alluding to the fact that illness withdrew him from work of all kinds, after his third paper had been contributed—thus conveying the impression of a lukewarm zeal and even utter indifference; whereas not only do his own words confute the imputation, but we have Madison's declaration that the idea of the 'Federalist' was suggested by Jay; 'and it was undertaken last fall,' he writes to Jefferson, 'by Jay, Hamilton, and myself. The proposal came from the two former. The execution was thrown, by the sickness of Jay, mostly on the two others.' It is even insinuated by this editor that Jay confined himself to topics which could be discussed 'without compromising in the least his general political sentiments, and without obliging him to assent even by implication to any portion of the proposed Constitution.' The representative duties and offices again and again forced upon John Jay—whether as a writer, jurist, envoy, or legislator—the evidence of his own letters, and especially the testimony of his fellow statesmen, adequately confute such misrepresentations as we have noted. It is a thankless, and, we believe, a superfluous task to vindicate the manliness, sincerity, and patriotism of the authors of the 'Federalist' and their fellow statesmen; indeed, their illustrious opponents in political questions again and again bore witness to the worth, wisdom, and integrity of the men, while many disputed the doctrine of the writers; popular sentiment embalms their fame and cherishes their memories; the insinuations of any self-constituted editor cannot impair the confidence or reverse the verdict which time has only confirmed and national growth made more emphatic. On the other hand, such attempts to diminish the personal authority, by misrepresenting the methods and motives of these eminent men, as are exhibited in the whole tone and manner of this editorship of a national work, imply a perverted sense of the duties of the hour, an insensibility to the terrible crisis through which the nation is passing, that cannot be too severely condemned by the patriotic and intelligent of all parties. Now, if never before, we should keep bright the escutcheon of our country's honor, and renew our love and admiration for the fathers of the republic and our faith in their principles.