The Atlantic Monthly, Volume 18, No. 108, October, 1866

While then the President cannot defend his conduct, it is possible for others to explain it.

Its explanation maybe found in some one or in several of the following propositions:—

1. That the Rebel leaders have acquired a control over the President, through the power of some circumstance not known to the public, which enables them to dictate a policy to him.

2. That he fears impeachment, and consequently directs all his efforts to secure more than a third of the Senate, so as to render a conviction impossible.

3. That he seeks a re-election, and purposes to make the South a unit in his favor, as the nucleus around which the Democratic party of the North must gather in 1868.

4. That he desires to reinstate the South as the controlling force in the government of the country.

In reference to the first proposition, we are restricted to the single remark, that it is not easy to imagine the Rebels capable of making any demand upon the Executive which, in his present state of mind, he would not be prepared to grant. He has pardoned many of the leaders and principal men of the Rebellion, and some of them he has appointed to office. He has resisted every attempt on the part of Congress to furnish protection to the loyal men of the South, and he has witnessed and discussed the bloody horrors of Memphis and New Orleans with cold-blooded indifference. Early in his term of office he offered an immense reward for the person of Jefferson Davis; and now that the accused has been in the official custody of the President, as the head of the army, for more than fifteen months, he has neither proclaimed his innocence and set him at liberty, nor subjected him to trial according to the laws of the land. Davis is guilty of the crime of treason. Of this there can be no doubt. He is indicted in one judicial district. The President holds the prisoner by military authority; and the accused cannot be arraigned before the civil tribunals. Davis was charged by the President with complicity in the assassination of Mr. Lincoln. There is much evidence tending to sustain the charge; but the accused is neither subjected to trial by a military commission, nor turned over to the civil tribunals of the country. These acts are offences against justice; they are offences against the natural and legal rights of the accused, however guilty he may be; they are offences against the honor of the American people; they are acts in violation of the Constitution. If the elections of 1866 are favorable to the President, they will be followed by the release of Davis, and the country will see the end of this part of the plot.

Upon any view of the President's case, it is evident that he has thrown himself into the arms of the South, and that his personal and political fortunes are identified with Southern success in the coming contest. He claims to stand upon the Baltimore Platform of 1864, and to follow in the footsteps of President Lincoln. The enemies of President Lincoln are reconciled to this assumption, by the knowledge that Mr. Johnson's counsellors are the Seymours, Vallandigham, Voorhees, and the Woods. Mr. Johnson, under these evil influences of opinion and counsel, has succeeded in producing a division of parties in this country corresponding substantially to the division which Demosthenes says existed in Greece when Philip was engaged in his machinations for the overthrow of the liberties of that country. "All Greece is now divided into two parties;—the one composed of those who desire neither to exercise nor to be subject to arbitrary power, but to enjoy the benefits of liberty, laws, and independence; the other, of those who, while they aim at an absolute command of their fellow-citizens, are themselves the vassals of another person, by whose means they hope to obtain their purposes."

The Republican party desires liberty, independence, and equal laws for all people; the Presidential party seeks to oppress the negro race, to degrade the white race of the North by depriving every man of his due share in the government of the country, and, finally, to subject all the interests of the Republic to the caprice, policy, and passions of its enemies.

The Presidential party is composed of traitors in the South who had the courage to fight, of traitors in the North who had not the courage or opportunity to assail their government, of a small number of persons who would follow the fortunes of any army if they could be permitted to glean the offal of the camp, and a yet smaller number who are led to believe that any system of adjustment is better than a continuance of the contest.

The Presidential party controls the patronage of the government; and it will be used without stint in aid of the scheme to which the President is devoted.

It only remains to be seen whether the courage, capacity, and virtue of the people are adequate to the task of overthrowing and crushing the conspiracy in its new form and under the guidance of its new allies. The Republican party carries on the contest against heavy odds, and with the fortunes of the country staked upon the result.

One hundred and ninety-one men have been recognized as members of the present House of Representatives. There are fifty vacancies from the ten unrecognized States; consequently a full House contains two hundred and forty-one members. One hundred and twenty-one are a majority,—a quorum for business, if every State were represented. Of the present House, it is estimated that forty-six members are supporters of the President's policy. If to these we add the fifty members from the ten States, the Presidential party would number ninety-six, or twenty-five only less than a majority of a full House. No view can be taken of the present House of Representatives more favorable to the Republican party,—possibly the President's force should be increased to forty-eight men. It is worthy of observation that neither the Philadelphia Convention nor the President has breathed the hope that the Republicans can be deprived of a majority of the members from the loyal States. The scheme is to elect seventy-one or more men from the loyal States, and then resort to revolutionary proceedings for consummation of the plot. The practical question—the question on which the fortunes of the country depend—is, Will the people aid in the execution of the plot contrived for their own ruin? Upon the face of things, we should say that it is highly improbable that the new party can make any important gains; indeed, it seems most improbable that the President can survive the effect of his own speeches. But we must remember that he is supported by the whole Democratic party, and that that party cast a large vote in 1864, and that in 1862 the Republican majority in the House was reduced to about twenty.

In the Thirty-eighth Congress the Democratic party had ten or fifteen more votes than are now needed to secure the success of the present plot. To be sure, the elections of 1862 occurred at the darkest period of the war. The young men of the Republican party were in the army, and but a small number of them had an opportunity to vote. There was still hope that a peace could be made through the agency of the Democratic party. These circumstances were all unfavorable to the cause of the patriots.

The Democratic party is now weaker than ever before. Its identity with the Rebellion is better understood. The young men of the country, in the proportion of three to one, unite themselves with the Republican party. As an organization, considered by itself, the Democratic party is utterly powerless and hopeless.

The defection of Mr. Johnson, however, inspires the leaders with fresh courage. It is possible for them to enjoy the patronage of the government for two years at least, and it is barely possible for them to secure the recognition of the ten Rebel States, or, in other equivalent words, the ten Democratic States, to the Union.

This combination is formidable; but its dangerous nature is due to the facts that Mr. Seward's name and means of influence are still powerful in the State of New York, and that he has joined himself to the new party and become an instrument in the hands of designing men for the organization of another rebellion. Outside of New York Mr. Johnson's gains in the elections will be so small that the Union majority will remain substantially as in the present Congress; nor can we conceive that the gains in that State will be adequate to the necessities of the conspirators. It is probable that the undertaking will prove a failure; but it should never be forgotten that the country is in peril; that it is in peril in consequence of the uncertain political character of the State of New York; and that that uncertain character is justly attributable to the conduct of Mr. Seward. If, then, Mr. Johnson succeed in the attempt to change the character of this government by setting aside the Congress of the loyal States, Mr. Seward will be responsible, equally with Mr. Johnson, for the crime.

Reverting to the statement already made, that neither Mr. Johnson nor any of his supporters can even hope to secure a majority of the members elected from the States represented in the present Congress, it only remains for us to consider more specifically the scheme of revolution and usurpation in which these desperate men are engaged. The necessary preliminary condition is the election of seventy-one members of Congress from the twenty-six States. To these will be added fifty persons from the ten unrepresented States, making one hundred and twenty-one, or a majority of Congress if all the States were represented. This accomplished, the way onward is comparatively easy.

When the Thirty-ninth Congress reassembles in December next, Mr. Johnson and his Cabinet may refuse to recognize its existence, or, recognizing it as a matter of form, deny its legitimate authority.

He would summon the members of the Fortieth Congress to assemble in extra session immediately after the 4th of March. Fifty persons would appear claiming seats as representatives from the ten States. The Republicans would deny their right to seats,—the supporters of the President would maintain it. The supporters of the President, aided directly or indirectly by the army and police, would take possession of the hall, remove the Clerk, and organize the assembly by force.

Whether this could be done without bloodshed in Washington and elsewhere in the North remains to be seen; but as far as relates to the organization of the House, there can be no doubt of the success of the undertaking. We should then see a united South with the President at the head, and a divided North;—the army, the navy, the treasury, in the hands of the Rebels. This course is the necessity of Mr. Johnson's opinions and position. It is the natural result of the logic of the Rebels of the South and of the Democratic party of the North. Mr. Johnson believes that the present Congress intends to impeach him and remove him from office. Admit that this fear is groundless, yet, if he entertains it, he will act as he would act if such were the purpose of the two Houses. Hence he must destroy the authority of Congress. Hence he arraigns its members as traitors. Hence he made the significant, revolutionary, and startling remark, in his reply to Reverdy Johnson as the organ of the Philadelphia Convention: "We have seen hanging upon the verge of the government, as it were, a body called, or which assumed to be, the Congress of the United States, but in fact a Congress of only a part of the States." This is a distinct, specific denial of the right of Congress to exist, to act, to legislate for the country. It is an impeachment of all our public doings since the opening of the war,—of all our legislation since the departure of Davis and his associates from Washington. It is an admission of the doctrine of Secession; for if the departure of Davis and his associates rendered null and void the authority of Congress, then the government, and of course the Union, ceased to exist. The constitutional amendment abolishing slavery is void; the loan-acts and the tax-acts are without authority; every fine collected of an offender was robbery; and every penalty inflicted upon a criminal was itself a crime. The President may console himself with the reflection that upon these points he is fully supported by Alexander H. Stephens, late Vice-President of the so-called Confederacy.

We quote from the report of his examination before the Committee on Reconstruction.

"Question. Do you mean to be understood, in your last answer, that there is no constitutional power in the government, as at present organized, to exact conditions precedent to the restoration to political power of the eleven States that have been in rebellion?

"Answer. That is my opinion.

"Question. Assume that Congress shall, at this session, in the absence of Senators and Representatives from the eleven States, pass an act levying taxes upon all the people of the United States, including the eleven, is it your opinion that such an act would be constitutional?

"Answer. I should doubt if it would be. It would certainly, in my opinion, be manifestly unjust, and against all ideas of American representative government."

Thus it is seen that these two authorities concur in opinion; although it must be confessed that the late Vice-President of the so-called Confederate States in urbanity of manner and in the art of diplomacy far surpasses the late Vice-President (as Mr. Johnson, if his logic does not fail him, must soon say) of the so-called United States.

Having thus impeached the existing Congress and denied its authority, the way is clear for the organization of a Congress into which members from the ten States now excluded shall be admitted.

Representatives who do not concur in these proceedings will have only the alternative of taking seats among the usurpers, and thus recognizing their authority, or of absenting themselves and appealing to the people. The latter course would be war,—civil war, with all the powers of the government, for the time being, in the hands of the usurpers. The absenting members would be treated as rebels, and any hostile organization would be regarded as treasonable. Thus would the Rebels be installed in power, and engaged in conducting a war against the people of the North and West.

If, on the other hand, the representatives from the West and North should deem it wiser to accept the condition, and await an opportunity to appeal to the country, how degrading and humiliating their condition! They might for a time endure it; but finally the people of the North would rise in their might, and renew the war with spirit and power, and prosecute it until the entire Rebel element of the country should be exterminated. The success of Mr. Johnson in the elections is then to be followed by a usurpation and civil war. It means this, or it means nothing. The incidents of the usurpation would be, first, that the old Slave States would secure thirty Representatives in Congress and thirty electoral votes, or an eighth of the government, to which they have no title whatever unless the negroes should be enfranchised, of which there would be then no probability; and, secondly, that two white men in the South would possess the political power of three white men in the North. The results of the usurpation would be strife and civil war in the North, and, finally, the overthrow of the usurpers by force, to be followed, possibly, by an exterminating war against the Rebel population of the South.

Already has one of Mr. Johnson's agents announced the usurpation in substance, and tendered to the country a defence in advance of the commission of the crime. The defence is simple and logical. Congress refuses to receive the members from ten States. Those States have the same immediate right of representation as the other States. Congress is, therefore, a revolutionary body. Any proceeding which secures the right of all the States to be represented immediately is a constitutional proceeding. This is intelligible. Alexander H. Stephens is the author of this cardinal doctrine of the Presidential party. On the other hand, Congress maintains that enemies vanquished in war, though formerly citizens and equals, cannot dictate the terms of adjustment; nor even enjoy the privileges of a constitution which they have violated and sought to destroy, without a compliance with those terms which the loyal people may deem essential to the public safety.

The issue is well defined. Shall the Union be restored by usurpation, with its attendant political inequality and personal injustice to loyal people, and consequent civil war, or by first securing essential guaranties for the future peace of the country, and then accepting the States recently in rebellion as equals, and the people of those States as friends and citizens with us of a common country?

The question is not whether the Union shall be restored: the Republican party contemplates and seeks this result. But the question is, shall the Union be restored by usurpation,—by a policy dictated by the Rebels, and fraught with all the evils of civil war? The seizure of the government in the manner contemplated by Johnson and his associates destroys at once the public credit, renders the public securities worthless for the time, overthrows the banking system, bankrupts the trading class, prostrates the laborers, and ends, finally, in general financial, industrial, and social disorder.

REVIEWS AND LITERARY NOTICES

Elements of International Law. By Henry Wheaton, LL. D., etc. Eighth Edition. Edited, with Notes, by Richard Henry Dana, Jr., LL. D. Boston: Little, Brown, & Co. 1866. 8vo. pp. 749.

Lord Westbury, in one of his masterly speeches on law reform, spoke with much truth, and in terms of severe censure, of the neglect with which public law has heretofore been treated in England, and the scanty contributions of English writers to it. And it is undoubtedly true, that, as the English language has no name by which to designate that branch of the law called by the civilians jus, and by the French publicists droit, so English libraries are without any great national work on this subject, although the English bar has produced innumerable treatises on municipal law, which are high models of profound learning, acute logic, and luminous exposition; and Great Britain is still chiefly dependent for her international law upon the decisions of Lord Stowell and a few other judges, and the commentaries of the Continent and America.

But from an early period in our political history, international law has been a favorite study in the United States, both with jurists and statesmen. Our war of independence and the succeeding treaties gave rise to questions for solution by it of the greatest nicety, and thus attracted immediate attention to the whole science. To these there followed in quick succession our long-pending dispute with Great Britain upon her exercise of the oppressive claims of visitation and search, our position as a neutral nation during the long wars in Europe, our own war with England, and the wars between Spain and her revolted colonies. Such a succession of events, fruitful in international controversies, created a demand for the study of the law of nations such as is always sure to be supplied. The state papers of Mr. Madison and Mr. John Quincy Adams are a permanent monument to their familiarity with this subject. Contemporaneous with them were the unrivalled decisions of the Supreme Court when presided over by Chief Justice Marshall, and later have been published the works of Kent, Wheaton, Story, and other writers. All of these together comprise a treasure of learning of which we may well be proud.

Mr. Wheaton, by general consent, occupies the first place among our commentators. Inferior as a jurist to Chancellor Kent, he is not so high an authority upon any question which the latter carefully and thoroughly examined; but long study and training, first before the Supreme Court, when he was not only the reporter of its decisions during the international era, but was of counsel in most of the important cases involving international law, and afterwards in an extended and useful diplomatic career in Europe, gave him an unequalled familiarity with the whole subject; and he treated it in a much more elaborate manner than did Kent, who only discussed it as a branch of the more general science covered by his Commentaries. No better evidence of the value of Mr. Wheaton's book is needed than the high estimation in which it is held in Europe, and particularly in England, where, as the production of a common-law lawyer, it has a greater value than the works of Continental scholars, and for reasons of which we shall speak presently. Lord Lyndhurst early bore testimony to its great merits, and during the last few years it has been universally regarded as an authority of the highest standard. No other publicist has been so frequently cited in the controversies which have grown out of our late civil war. The translation of the book into Chinese is a most interesting fact, flattering to the author, and a proof of the progress which Western thought and civilization are making in the extreme East.

It is of Mr. Dana's edition of this valuable work that we are now called upon particularly to speak. As a new edition of the book was demanded, it was of the greatest importance that it should be placed in the hands of an editor competent to discuss, in a manner worthy of the distinguished commentator, those numerous and perplexing questions which have arisen since his death. The representatives of Mr. Wheaton were singularly fortunate in obtaining the aid of so prominent and so busy a man as Mr. Dana,—one who is himself a high authority on many branches of international law; for it is not an easy matter to prevail upon a leader of the bar, and especially one immersed in the cares of official as well as of professional duties, to undertake a laborious literary work, even if it be of a legal character. Of the editor it is a delicate matter to speak; but we can say without violating good taste, that few members of his profession unite at once, and to an equal degree with him, high professional acquirements, an enviable reputation as an orator and advocate, and the accomplishments of a varied and extensive scholarship, so that the words with which the President of Harvard College, at the recent Commencement, conferred upon him the degree of Doctor of Laws, Virum eloquentium jurisperitissimum, jurisperitorum eloquentissimum, could be applied to him with far less disregard of strict truth than university dignitaries consider allowable on such occasions. A large practice for more than twenty years in the maritime courts has given Mr. Dana an extensive and intimate acquaintance with one part of the subject he has here undertaken; and his duties as United States District Attorney for Massachusetts, throughout the late war, obliged him to examine most carefully the whole law of prize, of neutral and contraband trade, and of blockade. The results of his labors comprise nearly half of the volume before us, and deserve some higher appellation than notes. Nowhere, however, does Mr. Dana push himself before his author. He never seems to forget that his duty is to prepare a new edition of Wheaton's Commentaries, not to write a book of his own; and he is content modestly to illustrate the text, and to supply the omissions needed to bring the book down to the present day.

It is not necessary to say that, in a literary point of view, Mr. Dana has done his work well. His style is a model of terseness, vigor, and perspicuity, and yet the reader is constantly charmed by its chaste purity and grace. We can say of him what Macaulay said of Bacon, that he has a wonderful talent of packing thought close and rendering it portable. It is a long time since we have read a book in which so much matter was compressed into so small a space. The good taste and polished courtesy with which Mr. Dana treats of any controverted point cannot be too much praised; and his calmness and moderation in their discussion are judicial in their nature and extent, and give additional weight to his opinions.

We have been surprised to see notices of the work in which Mr. Dana is criticised for want of enthusiasm. If by this is meant that he lacks enthusiasm for his subject, the criticism is entirely misplaced. We doubt whether, without that, he could ever have been induced to edit this book; and on every page, and in almost every line, convincing proof can be found of the love and devotion which the editor feels for the law, and especially for this department of it, to the study and practice of which he has devoted so many years. It is this enthusiasm that renders the notes to us more interesting than the text. Things which Mr. Wheaton discusses as abstractions seem in Mr. Dana's hands to become living realities. In one the scholar's temperament predominates; in the other the lawyer's and the politician's. If, however, the criticism applies to the rigid impartiality which the editor brings to the discussion of those contemporaneous events concerning which the passions of men have been most recently and deeply aroused, we regard it as high praise. If Mr. Dana's views be wrong, it is not likely that the indulgence of a partisan enthusiasm would have corrected them; if they be right, the absence of all passion, the studied courtesy and tolerant moderation which mark every line of argument, add infinite strength to his conclusions.