The Life Of Walter Q. Gresham
Chapter 2
The Underground Railroad
PERSONAL LIBERTY LAWS
- THE SOMMERSET OR NEGRO CASE"
MAN
STEALING ACT
AND JOINT RESOLUTION - FUGITIVE SLAVE LAWS
PRIGG CASE -
CALIFORNIA GOLD RUSH
WENDELL PHILLIPS
HOLDS MASSACHUSETTS OUT OF THE
UNION
BUT WEBSTER
ENFORCES THE NATIONAL LAW
WALTER
Q. GRESHAM NO ABOLITIONIST.
Walter Q. Gresham was in politics
before he was admitted to practice at
the bar. From Louisville the
Ohio River runs to the southwest, and then to the
northwest, describing almost half a circle, only thirty miles across,
but sixty four miles around. In this big bend, carved out, as it seems,
from the State of Kentucky, is the largest part of Harrison County,
Indiana. Corydon, the county seat, farther south than Louisville, is
fourteen miles from the river at almost all points. A road leads south
from Corydon to Mauckport, the "seaport" of Harrison County, as it was
facetiously called. The Mauckport Road was one of the first highways
constructed in southern Indiana. Then two miles up the river bank it
runs to the ferry crossing to Brandenburg, the county seat of Meade
County, Kentucky. This large river frontage and other roads converging
from the river into the Mauckport Road and into Corydon's principal
north and south street, from which a road leads north to Salem, the
county seat of Washington County, and crossing the New Albany and Paoli
Pike, made the main street of Corydon the principal thoroughfare of the
"Underground Railroad. Two and a half miles south of Corydon, on the
Mauckport Road, "Bill" Crawford maintained the first "station " on the
Underground Railroad, north of the river. His so-called farm, in the
hills and
hollows, was admirably adapted for concealing a fugitive. He would keep
a negro a week if necessary, it was said; and he did not finally go out
of business until after the Emancipation Proclamation. The next
"station" north was at John Rankin's, fifteen miles north of Corydon,
near Fredericksburg, on the New Albany and Paoli Pike. Thence different
roads were taken north to the Cincinnati and St. Louis Railroad.
From the earliest time, up that Mauckport Road came the kidnapper and
the fugitive. The anti-slavery people always claimed the kidnapper was
in the advance.
While the great mass of the people of Corydon and Harrison County
considered it disreputable and dishonorable to aid a fugitive
slave, young men fond of hazard and adventure considered it great sport
to aid a negro's flight from " Bill" Crawford's to John Rankin's.
Public sentiment was with those men in Corydon who made it a practice
to catch runaway negroes. The rewards ranged from $100 to $250,
according to the value of the fugitive. Captures occurred right in the
town. Sometimes the negroes were sent through the town late at night,
unguarded, on foot. It was then they were caught. But under guard of
the Corydon boys, the fugitives went through in safety. There were men
in Harrison County who, in collusion with men in Kentucky, would
encourage a negro to run away, that they might recapture him and then
secure a reward. Names might be mentioned, but it is not necessary.
Around Corydon, a mile and a half to the west of " Bill" Crawford's,
but coming back to the Salem Road on the north, was another branch of
the underground line. It was through " Cousin Zack" Pennington's farm.
The way was pointed out by Pilot Knob, rising above the hills two miles
west of Corydon, but discernible for miles. "Zack" Pennington, a son of
"Uncle Dennis" Pennington, was, in 1848, a mature man with a growing
family. He defied public sentiment and his father's
advice and received the fugitives in
his own home. With Zack's rifle and Zack's two boys, Dixon at first,
and Matthew later on, at his heels to carry the game, Walter Q. Gresham
scoured the woods west of Corydon and "always brought home plenty of
squirrels for supper," said "Mat," in speaking of those early days.
Dick at seventeen and Mat at fourteen were among the first Union
volunteers. Mat had to run off, as many another boy, and lied about his
age to get in.
When Walter Q. Gresham first became minute clerk for the board of
county commissioners, his legal guardian, Samuel J. Wright, the county
auditor, was encouraging the boys on the "Underground Railroad." But
the boy did not lose his head. Headstrong as he was, afterwards
criticized, it was merely the courage of his convictions; no man was
more amenable to reason, deferential to the wise and humble, or
more often sought advice and information. Dennis Pennington was still
dispensing justice as a justice of the peace. Mellowing with age the
old man was one of the best informed of men on the workings of our dual
form of government. Controversies that were beyond his
jurisdiction as a justice were submitted to him as an arbitrator. The
first official mention of Dennis Pennington is the record that, on July
10, 1807, Governor Harrison appointed him a justice of the peace in
Clark County. As a territorial magistrate he possessed almost as much
power as a Justice of the Supreme Court he decided whether a man
was
free or slave. He liked power and he knew how to wield it.
In his judicial and
legislative capacity he studied due process of law as written in the
ordinance for the organization of the Northwest Territory, and the
Sommerset case, that he might properly construe the fugitive slave
clause of the National Constitution and the fugitive slave law
that President Washington signed. In his long legislative career,
Dennis Pennington had accumulated a large library of session laws,
revised statutes, and congressional records, and had an intimate
knowledge of men and events that is not in the books. He had a pamphlet
copy of the arguments of the lawyers and the decision of Lord
Mansfield, June 22, 1772, in the case of James Sommerset vs. Charles
Stewart, or "The Negro Case," before it got into the law reports. Many
a night the school boy, apprentice to the law, and law student, spent
at "Old Uncle" Dennis's home. In the evening, when there was no farmer
going out with whom he might ride, he easily covered the four miles on
foot, and rode in the next morning. ' 'He milked me dry,' ' the old man
said, in telling of these visits.
It was "Old Uncle Dennis" who first
put Walter Q. Gresham to reading that second great declaration of human
rights, the ordinance for the organization and government of the
Northwest Territory, and pointed out that it embraced what the first
did not, the poor degraded African, or "the nigger," ! as the old man
called him. Walter Q. Gresham was with Uncle
Dennis when he died in September, 1854, and he often remarked that he
never forgot the clearness of vision, the fortitude and faith, the old
Virginian exhibited to the last.
Judge Porter, from whom, as has been noted, Mr. Gresham obtained
his technical legal education, had kept up a most excellent brief on
the subject of slavery which he had started in his legislative career.
It commenced with the Sommerset or "The Negro Case," and Section 4 of
Article 4 of the Constitution of the United States. On its purely
political side there was—
(1) The pro slavery
side or Calhoun theory, with all
constitutional provisions, legislation, and decisions to support it;
(2) The
Abolitionist's view as developed by Wendell
Phillips, the ablest lawyer, perhaps, of his time;
(3) The Free Soil
theory;
(4) The statesman's
side, that of Clay and Webster.
According to the record, as the lawyers say, in 1769 Charles Stewart, a
Virginian, took one of his slaves, James Sommerset,
to England. Lord Mansfield's antipathy was especially to Massachusetts
and this may be the reason why the gossip was that Sommerset was a
Massachusetts and not a Virginia slave. The case was elaborately argued
and fully reported, first by printed pamphlet, then in 1774 in Lofts'
Reports, and again in 1814 under the title of "The Negro Case" (20
Howell State Trials 1). It was not fair, the pro slavery lawyer said,
for the reporter, years after the decision, to publish an elaboration
of Hargrave's argument that was not delivered in court, and besides,
Mansfield was a partisan and not a fair judge. Be
this as it may, it was the lawyer's method of hitting at the British
Empire and the American Republic
because they still recognized slavery.
But even in the pamphlets and in Lofts' Reports there is practically
every argument against slavery. There are there the natural, inherent,
inalienable rights of man as first set forth by Montesquieu, Vattel,
Locke, and the other philosophers. The history of slavery from
antiquity and its abolition is traced. And it was shown by Blackstone
how that species of slavery known as "white villenage" had long been
abolished in England. There were the propositions: "As soon as a
man puts foot on English soil he is free," and "The same is the law of
France"
This was the case:
On December 3, 1771, affidavits were
made by Thomas Wilkin, Elizabeth
Cade, and John Marlow, that James Sommerset, a negro, was confined in
irons on board a ship called the Mary Ann, John Knowles, commander,
lying in the Thames, and bound for Jamaica. Lord Mansfield, the
celebrated Chief Justice of the Court of Kings Bench, the highest
common law court in the Kingdom, by a writ of habeas corpus, commanded
Captain Knowles to produce the body of Sommerset, with the cause of his
detention. December 9, Captain Knowles answered that he held
Sommerset as the negro slave of Charles Stewart, a Virginian, who
had delivered Sommerset into his custody to be carried to Jamaica and
there sold as a slave. It further appeared that Sommerset had been
apprehended in the wilds of Africa by slave dealers, carried to
Virginia, and there sold to Stewart, a planter. That having
business in London, Stewart brought Sommerset along as his valet, but
while in England, Sommerset ran away, was apprehended by force of arms,
and put on board the Mary Ann.
At first Lord Mansfield recommended an adjustment, as it was suggested
on the record before him that there were at that time " 14,000 or
15,000 African runaways and valets and servants in England" who would
be affected by his ruling. As
a matter of fact, it is doubtful if there ever were as many as
14,000 negroes in England. A settlement failing, the questions were
referred to the full bench for argument. June 10, 1772, the argument
ended. Again Lord Mansfield advised an adjustment even suggested
an application to Parliament, and in concluding his remarks said:
"If the parties will have judgment, 'fiat
justitia, mat calum' ,
'Let
justice be done, though the heavens should fall.' "
June 22, 1772, his lordship delivered the opinion of the full bench. It
was short and to the point, only three pages in length. It was the
kind, Walter Q. Gresham said years afterwards, when on the bench
himself, "that produces the conviction that the court at least believes
what it says." His lordship concluded: "The state of slavery is of such
a nature that it is incapable of being introduced on any reasons, moral
or political, but only by positive law. . . . It is so odious that
nothing can be suffered to support it but positive law. ... I cannot
say this case is allowed or approved by the law of England, and
therefore, the black must be discharged.
Eleven years before Hargrave's argument and Lord Mansfield's opinion,
an American lawyer, James Otis, for the first time in a practical way
brought to the attention of the colonial crown judges the natural,
inherent, and inalienable rights of man as set forth by the
philosophers Vattel and Montesquieu. It was in a lawsuit in February,
1761. "Then and there was the child Independence born."
Thomas Jefferson was then a schoolboy eighteen years of age. A score of
times I have heard Walter Q. Gresham mention James Otis where he
mentioned Thomas Jefferson once. The popular, historical, and even
judicial misconception that Otis was simply declaiming against the
writs of assistance was not Walter Q. Gresham's as a law student, and
never afterwards. In the chapter in this book on the Whiskey Ring and
the Councilman case, which involved the virility of the Interstate
Commerce Act, it will appear that the
Supreme Court of the United States did not at first comprehend the
government which Otis conceived. It was the trade and navigation laws
of 1661-1663 for the first time attempted to be enforced in the
colonies that Otis attacked as being in conflict with the natural
rights of the Boston merchant. If the laws were valid, Otis did not
dispute the right and duty of the colonial judges to issue the writs of
assistance authorizing the customs officers to search warehouses and
dwellings for smuggled goods. These principles of Vattel, Montesquieu,
or Otis, as we may choose to call them, percolated to the common
people. The "sinners" of the Mecklenburg declaration of
independence applied them before Thomas Jefferson did. Playing both
ends, first setting forth the natural, inalienable right of men, one of
the plaints of Jefferson against the British king was, "He has stirred
up insurrections among our slaves." Without that grievance, the
American Revolution might have been a failure. To reverse the
Sommerset case the fugitive slave clause of the American Constitution
was adopted.
Long before our independence was assured, such is the effect of
precedent in the administration of the law, American judges had taken
notice of Mansfield's opinion. And then the legislatures and
constitutional conventions took it up. March 1, 1780, the colony of
Pennsylvania by an act of their legislature abolished slavery, but out
of consideration for the members of the Continental Congress, this
legislation provided that during the sitting of the Congress, it was
then in session at Philadelphia, its members might be attended by their
slaves as servants. A few months later, Massachusetts, by a bill of
rights in her constitution, soon to be followed by the other New
England Colonies or States, without any qualification, adopted the rule
that there could not be property in man. Under the Articles of
Confederation, there was no provision for the return of fugitive
slaves. When the convention met in 1787, to provide for a national
constitution, the most important question was that of fugitive slaves.
It was to modify this rule of the Sommerset case in so far as it
applied to fugitive slaves in order to make a more perfect Union, that
Section 4 of Article 4 was inserted in the Constitution of the United
States, viz.:
No person, held to service or labor in one state, tinder the laws
thereof, escaping into another, shall, in consequence of any law or
repulsion therein be discharged from such service or labor; but shall
be delivered up on claim of the party to whom such service or
labor may be due.
Soon the construction of this section was brought to Washington's
attention as President. The Governor of Pennsylvania applied to the
Governor of Virginia for the return of three Virginians who had come
into Pennsylvania and kidnapped a negro, contrary to the provisions of
the Pennsylvania act of March 1, 1790, and .carried him off to
Virginia. The Governor of Virginia refused to surrender the Virginians,
and thereupon the Governor of Pennsylvania applied to President
Washington for redress.
While Washington was a large slave holder, and as some of his
biographers say, resorted to strategy to get his household
servants back to Virginia when, in 1790, the government was moved from
New York, where slavery still was lawful, to Philadelphia, and
some of
Attorney General Randolph's slaves claimed their freedom under the
Pennsylvania statutes, according to Dennis Pennington, Washington
did not then adopt the construction that was at that time advanced and
afterward obtained of the words * * shall be delivered up on claim,"
viz., that the master could walk into a crowd and lay his hands on a
negro, claimed to be a runaway, and lead him or her home like a horse.
The fugitive slave law that Attorney
General Randolph drew and
Washington signed February 18, 1793, provided that the alleged runaway
should have a fair trial in the county in the State where he was
apprehended, or, to state it more nearly, it provided that the States
and the State judicial officers as well as the national officers should
enforce the national law, and not any man who could get his hands
on the negro without a breach of the peace. And the record is that
every Southern jurist, Bushrod Washington among them, leaned to a
liberal construction of Washington's law, and to limiting the
scope of Section 4 of Article 4 of the Constitution.
The record is that at the first session of the Indiana State
legislature, which convened the first Monday in December, 1816, Dennis
Pennington " sat in" as a leader, as a senator from Harrison County. He
drafted and led in passing an act entitled "An Act to Prevent Man
Stealing," which was approved December 17, 1816. While this statute
imposed penalties for stealing free negroes, there were the same pains
and penalties for aiding the escape of fugitive slaves.
At the 1818 session of the Indiana legislature, Dennis Pennington
supplemented his man stealing act with what was known as the Joint
Resolution of December 31, 1818:
Whereas, sundry persons destitute of every principle of humanity are in
the habit of seizing and carrying off and selling as slaves free
persons of color who are or have been for a long time inhabitants of
this state, . . .
Therefore, most solemnly disavowing all interference between those
persons who may be fugitives from service and those citizens of
other states, whenever such claim is legally established, we deem it
our just right to demand the proofs of such claim to service according
to our laws:
Resolved, that our senators in Congress be instructed and our
representatives be requested to use their exertions to prevent Congress
from enacting any law, the provisions of which will deprive any person,
resident of this state, claimed as a fugitive
from service, of legal constitutional
trial, according to the laws of
this state, before they shall be removed therefrom.
At the November term, 1818, of the Harrison County Circuit Court,
Dennis Pennington caused three Kentuckians to be indicted for violating
the provisions of his man stealing act. In the night time they broke
open the dwelling house of Susan, a woman of color, and forcibly
carried her off to Kentucky. Governor Jonathan Jennings made a
requisition of Governor Gabriel Slaughter (kin of the man who
became Mr. Gresham's first law partner) of Kentucky, for the return of
the indicted men to Indiana for trial. One count in the indictment was
based on the Federal statute..
For several years the correspondence went on between the two governors.
Finally Governor Slaughter refused to honor the requisition. For aught
that appeared in the papers, he said, the Kentuckians may have
exercised their constitutional right of seizing their runaway slaves
the same as they would their runaway horses, and therefore no crime had
been committed.
March 26, 1826, Pennsylvania amended her statute for the abolition of
slavery and to prevent kidnapping, by imposing certain penalties,
including imprisonment, on all who removed from the State of
Pennsylvania negroes claimed as runaways, without first securing from
some judicial officer a warrant authorizing that removal. At the
hearing to be held before the warrant was to issue, the claimant, the
master, could not be a witness.
Speaking of this statute, Dennis Pennington said: "Little Joe Story
decided all our fugitive slave laws, including that which
President Washington signed, unconstitutional/' l
Little noticed and not understood by the historians, but first brought
to the attention of Walter Q. Gresham by Dennis Pennington and
discussed with Judge Otto, who, we have shown, had been bred to the law
in Pennsylvania, and with his
legal preceptor, was the construction the Supreme Court of the
United States in 1842, in an opinion by Justice Story, put on the
fugitive slave section of the Federal Constitution in this
celebrated Prigg case, and the action of the Abolitionists and some of
the Free States under it.
An indictment was returned in York County, Pennsylvania, against
Prigg and others for removing Margaret Morgan, a fugitive slave, to
Maryland, without a warrant as the Pennsylvania statute provided. The
Supreme Court of Pennsylvania upheld Prigg's conviction, and then the
case went to the Supreme Court of the United States, where it was
argued by the respective attorney generals of Pennsylvania and
Maryland, and other eminent counsel. It was really a controversy
between the two States. And after all, there is some reason for the
phrase, "The war between the States."
In the teeth of the argument that in the Free States color raised no
presumption of servitude, of the constitutional provisions that "no
person shall be deprived of life, liberty, or property, without due
process of law"; that the people shall be secured in their persons
against unreasonable seizures; and that the word "claim" was used in
the sense of "a challenge of ownership," the Supreme Court of the
United States reversed Prigg's conviction, and in an opinion by Justice
Story said that the constitutional provision of the Federal
Constitution, namely, Section 4 of Article 4, was self executing when
the master could secure the possession of his slave without a breach of
the peace, that is, that in the Free States the master could lay hands
on his slave the same as on his horse and then could lead the slave
home the same as he could his horse, using all force necessary. This
opinion further held the Pennsylvania statute unconstitutional, which
required the claimant of a fugitive slave, after he had secured
possession of the slave, to apply to a State officer for a certificate
before he could remove the slave from the State; that the power to
enforce the constitutional provision of the United States was exclusively in
Congress; that in so far as the
act of 1793 attempted by the machinery of the Federal courts and
Federal officers to enforce the provision for the return of the
fugitive slaves it was constitutional, but it was unconstitutional in
imposing duties on the State and State officers in the rendition of
slaves. Not only this, this case decided that a State might by law
prohibit its officers and agents from taking any action to enforce
Section 4 of Article 4 of the Constitution of the United States.
Chief Justice Taney, in a dissenting opinion, pointed out the absurdity
of a State commanding its officers to refrain from enforcing one of the
provisions of the Constitution of the United States, a measure that had
made the union of the States under that Constitution possible.
Although the court proceeded to a decision on the theory, as Judge
Story said, that it would make such an exposition of the Constitution
and the laws as would "put at rest the conflict of opinion" on the
question which involved "as delicate and important considerations as
had ever come before it," the Prigg case proved a wedge with which the
Abolitionists helped split the Union. At the succeeding session of the
Massachusetts legislature in 1843, Wendell Phillips, the Abolitionist
lawyer, forced Massachusetts to pass an act prohibiting its executive
and judicial officers from performing any acts in enforcing the
pro slavery clause of the Constitution. The Vermont, Connecticut, New
Hampshire, and Pennsylvania legislatures followed the lead of
Massachusetts. These acts, as amended, became known as the Personal
Liberty Laws. The act of February 18, 1793 stripped of most of
its provisions, and supplemented by the Personal Liberty Laws as
amended, left the slave owner practically where he was under the
Articles of Confederation. In 1850 there were 500 of Wendell
Phillips's clients, fugitive slaves living in security in and about
Boston.
It was the Prigg case and the discovery of gold in California that gave us the Compromise of
1850, otherwise we might have
had war then.
The slave power counted on the 900,000 square miles of territory
acquired from Mexico, for that was why the Mexican War was
begun, becoming slave territory. John P. Hale, the Free Soil Democrat,
objected to the extension of the Missouri Compromise, or the
36° 30' line, to the coast, because it carried with it the
implication that slaves should be recognized south of it, and then the
discovery of gold in the Sacramento River spoiled it all. Immediately
there was a rush to California from all over the Union and from many
parts of the commercial world. Soon the Californians called a
convention, at which were many delegates from the South, adopted
a free constitution which was ratified on a referendum, elected a set
of State officers, two congressmen, and two senators, and began
hammering on the doors of Congress for admission into the Union. The
pro slavery people threatened to secede if California was admitted as a
Free State. To that end, Mississippi, in the Summer of 184Q. called a
convention to meet at Nashville in June, 1850. In 1863, at Natchez, I
sat with my husband at the dinner table with Judge McMurran, who had
been a delegate from Mississippi to that Nashville convention. Never,
said Judge McMurran, did the mass of the large slave holders want the
issue to go to war; compromise always was the plan.
Two miles beyond Pennington's Chapel, to the northwest, and
farther out on the Vincennes Road, stands to-day the brick house close
to the big spring that succeeded the log house on the site where John
Davis, Walter Q. Gresham's maternal grandfather, first settled.
Thither Walter Q. Gresham was first carried, when a toddling infant, by
his mother. The mother rode horseback with the boy behind. A natural
"woodsman," a quality she transmitted, she cut across the country,
leaving Corydon to the south. Thence, from Pennington's Chapel, Walter
Q. Gresham often went after he
was transplanted to Corydon. After our marriage I visited in
that brick house. It was then occupied by Uncle Tom Davis and his
family. Today it is the home of one of the fourth generation.
Among the California gold seekers were Anthony and Anderson Davis, two
of the brothers of the mother of Walter Q. Gresham. Anderson Davis died
early. Anthony turned all his resources into cash and moved his family
to the Willamette Valley in Oregon, where his descendants have
prospered.
An ex-office holder under Andrew Jackson, Anthony Davis remained a
Democrat to his death. On behalf of the Gresham family, Walter Q.
Gresham became the correspondent with Uncle Anthony. It was not
gold the boy was interested in, and Uncle Anthony wrote back to his
brother Tom that the boy had a wonderful grasp on the slavery question,
and a bright future before him.
Uncles Henry, John, and Robert Davis, with their families, lived
on sections adjoining the John Davis homestead. Aunt Betsy, married to
Enoch Martin, Aunt Mahaly to George Seacat, and Aunt Nancy to David A.
Askren, lived with their growing families near by. Aunt Polly, married
to Abraham Stevens, lived just over the line in Washington County, not
far from Fredericksburg, and close to John Rankin, the keeper of the
first station on the Underground Railroad north of Corydon. On north in
those formative days, crossing the main line of the Vincennes Road at
Hancock's Chapel, Walter Q. Gresham rode one of Uncle Tom's horses
to visit Uncle Abe and Aunt Polly. Uncle Abe was then classed as an
Abolitionist, while the Martins were all " suspects."
Older by twenty years than Dennis Pennington, John Davis, the
grandfather, lived to be almost one hundred, dying in the early '50's.
From the time Walter Q. Gresham knew him, he lived with and was cared
for by Aunt Nancy. Although his strong anti-slavery views caused him to
seek, with his growing family,
the wilds of Indiana Territory, John Davis was
a considerate, charitable, and kindly man, and to the last a Democrat.
But he was a strong Union man, and he read Daniel Webster's speeches.
His sons, Thomas, Henry, and Robert, joined the Republican party, while
Anthony, Anderson, and John adhered to the Democratic. Several
brothers of John Davis, great uncles of Walter Q. Gresham, with their
growing families, settled in that neighborhood. Many of the offspring
migrated to Illinois, Iowa, Kansas, and Missouri. At one time one of
them said to me, "We had 900 on the list, and then we quit counting."
The women were good housekeepers, and the men were then, and still are,
mainly prosperous farmers, the best type of American citizen,
seldom
officeholders, but usually having a representative on the board of
county commissioners or in the legislature. There was not a poet, a
philosopher, nor an Abolitionist among them. They did not believe in
burning the barn down to get rid of the rats. They were Union men and
believed in law and order, although they went, as did Walter Q.
Gresham, to hear Walter Pennington preach. The best of the New England
Abolitionists never surpassed Walter Pennington in denouncing "the
divine institution." He spared not even the author of the Declaration
of Independence nor the Father of his Country for continuing to own
negroes in the teeth of their efforts to provide by law for
emancipation. The Reverend Walter was fond of commending Thomas
Worthington, a Virginian, who led off in freeing all his slaves (fifty
in number) and provided homes for them in the Northwest Territory.
Coles also did the same, and settled in the Illinois country, and
likewise the "poor white trash" who "toted" his single "nigger" to the
land of freedom.
The Davises, who remained Democrats, helped Walter Q. Gresham in all
his political contests in 1854 and 1855, and in i860. One bright
morning in July, 1863,1 served breakfast to one of the Davises of
mature years, with George Seacat
and David Askren. In the late hours of the night they had ridden in to
join the Home Guards. Later, with their squirrel rifles, I saw them,
outnumbered seven to one, march out to meet the Morgan veterans
supported by artillery.
Even after it had become an Abolitionist war, as it was called after
the Emancipation Proclamation, the poets and philosophers and "the
friends" did not go in. Wendell Phillips was taunted for staying at
home. But it has always been thus. It was so in the South. Many of the
extremists and fire eaters did not fight. It was the man who
resisted secession the longest who stayed to the surrender. Coming up
from the South, I have several times stopped at Waynesville, North
Carolina, where Major W. W. Springfield, late C. S. A., resides.
Said the Major: "At Strawberry Plains, Tennessee, where I was born
and raised, I resisted secession to the last, but Mills Shultz, who
out-talked and out-voted us, stayed at home, while I enlisted as a
private and surrendered as a major at Appomattox. And would you believe
me, when I went to vote the first time after the war, there was Mills
Shultz to challenge my right to do so because I had been in the Rebel
army!"
When the final test came, and the extremists and most of the
Abolitionists stayed at home, many of the third generation of the
Davises went into the Union army as volunteers, some as officers,
some as mere boys in the ranks. Except those who were killed or badly
wounded, they stayed to the end. Walter Davis, at sixteen, joined the
Forty ninth Indiana as a volunteer. He said: "I served four years
without a wound, but they almost marched me to death, six times across
Kentucky, then clear down to Savannah, up through the Carclinas, and
down the avenue in the Grand Review." Rodolphus, in the ranks of
the Fifty ninth Indiana, was close to my husband when he, as a division
commander, was shot in front of Atlanta. The next morning "Dolphus"
helped carry the wounded cousin from camp to the box car, and as the
train was held, went back with
the detail and brought out McPherson's body in a pine
box, which was shoved into the car with the wounded men as the train
pulled out for Nashville.
From the start, President Taylor, a slave holder, a Kentuckian by
birth, a citizen of Louisiana, had encouraged the settlers to organize.
In December, 1849, one ot the ablest messages ever submitted to
Congress, written by Reverdy Johnson, his attorney general, and
predicated on the Declaration of Independence, that the people of each
State or territory were of right entitled to such laws as they desired
for their own local government, the soldier president pressed the
claims of California. The threats of the hotheads to secede brought
counter threats that the first overt act would be met with the armed
forces of the United States, led by the '' Old Warrior'' himself. He
surprised the slave holder, as well as the boy whose anti-slavery views
had led him to wish in 1848 that he were of age so that he might vote
for John P. Hale of New Hampshire and George W. Julian of Indiana. Many
a time I have heard Walter Q. Gresham discuss these two men. The
daughter of John P. Hale, and her husband, William E. Chandler,
Secretary of the Navy in President Arthur's cabinet, became our warmest
friends. It was a friendship that did not abate when Walter Q.
Gresham became Secretary of State in a Democratic cabinet. Aid and
comfort that the Republican Senator Chandler offered to Democratic
Secretary of State Gresham could not be received for fear of offending
some of the Democrats. Mrs. Chandler was devoted, to use a Southern
word, to Mr. Gresham, and there never was a brighter or sweeter Yankee
woman.
Too much ice water on July 4, 1850, ended Zachary Taylor's career, and
then Henry Clay put through the last compromise on the slavery
question, and the Nashville convention adjourned sine die.
The compromise of September 11, 1850, of which Henry Clay was the author, admitted California
as a Free State; organized
territorial governments in Utah and New Mexico, to be admitted as Free
or Slave States, as the people of those territories might ultimately
determine; abolished the slave trade in the District of Columbia; and
with a sweep of the pendulum to the extreme of the Federal power,
ignoring almost every fundamental principle of right and justice,
rewrote the Fugitive Slave Law on lines that would have astounded
Washington and his advisers.
The Fugitive Slave Law, as amended September n, 1850, provided for
additional United States Commissioners, one to be appointed in each
county, if necessary, who was authorized on the production of a
certificate under the seal of a court of the State from which the
fugitive had fled, giving a description of the alleged fugitive, to
issue his warrant to the United States marshal for the apprehension of
the negro described in the certificate. The marshal might, at his
discretion, without any showing to the court, if he had reason to
believe there would be resistance, call on any citizen to aid him in
enforcing the writ. On the apprehension of the fugitive, the only
question to be tried by the commissioner was the identity of the
fugitive, as set forth in the certificate, and this too without a
jury. "In no trial or hearing under this act shall the testimony of
such alleged fugitive be admitted in evidence." "No writ or habeas
corpus should issue to release an alleged fugitive." "The
commissioner shall receive a fee of $5 in the event of the
release of alleged fugitives, and $10 in the event he remand him
to the custody of the alleged owner/' The reason for the difference in
the compensation, as expressed in the act, was because of the
difference of the labor required of the commissioner. In the event the
fugitive was remanded to the custody of the owner, the commissioner
should give him a long certificate, reciting all of the proceedings,
whereas, if the fugitive was released, there was a simple order and
certificate to that effect. Additional penalties were
imposed on those who aided the
fugitives to escape. Municipalities and
counties, where there were rescues of fugitive slaves, were made liable
to the owners for the value of the slaves, while the municipality or
city where the rescue occurred was given the right to recover from the
parties making the rescue.
Samuel J. Wright, always forcible and keen, "but often unfair," as
Walter Q. Gresham afterwards described him, "Slick Samuel," his
opponents called him, took up the cry, "It's unconstitutional!"
Promptly the Supreme Court of Wisconsin so held, and it was several
years before the Supreme Court of the United States could get a record
and pronounce the law constitutional.
However it might be in the other States of the Union, in the five
States carved out of the Northwest Territory, viz., Ohio,
Indiana,
Illinois, Michigan, and Wisconsin (and eminent lawyers still contend
that in the last named States the ordinance of July 13, 1787, is the
supreme law of the land) it was claimed and argued with force that
Congress could not, under the fugitive slave section of the National
Constitution, deprive even a negro of his natural, inherent, and
inalienable rights of life, liberty, and property, and the means of
their preservation or of due process of law, that is, of a writ of
habeas corpus or a jury trial with the right to testify, because in the
ordinance of July 13, 1787, for the organization of the Northwest
Territory and the States to be organized out of it, among the
guaranties to the people thereof and their descendants were the natural
rights of man and the means of their preservation, or "due process of
law." These and the other personal and political guaranties embedded in
the ordinance were among the considerations for the pro slavery clauses
of the National Constitution. It was the first compromise on the
slavery question.
While most of the Virginians who made for the Northwest Speaking of the deal and the part
Massachusetts took in putting it
through, Wendel Phillips said: "If a Yankee saw a dollar on the other
side of hell, he would jump for it at the risk of falling in." conceded that the pro slavery people got
the best of the first
compromise, they said Henry Clay out traded them in the second that is,
in the Missouri Compromise for all of the territory of the Louisiana
Purchase, under the treaty with Napoleon whereby it was acquired, was
slave territory. It was the pride of the Penningtons, Rumleys, and most
of the Davises, that their anti-slavery views were not of New England
origin but were brought with them from Virginia. I have heard Walter Q.
Gresham say, "Thank God, none of my ancestors prospered or grew rich in
the New England carrying trade swapping beads and rum for men in
Africa, and then selling these men in Georgia and South Carolina at a
good price." The morals underlying much of New England
commercialism he scorned.
As late as 1844, a Clay delegate to the Baltimore convention, a
Clay elector, and on the stump that year for the "Mill Boy of the
Slashes," Dennis Pennington was always first and last a Union man. He
admired Andrew Jackson as he did a bulldog his courage but not his
brains. It was Webster's argument that justified Jackson's threat to
hang Calhoun. "Study law, my boy, and the history of your country, and
be prepared to meet them on the stump, but always stand by the
Union
was the old man's advice. Had Dennis Pennington lived in i860, he would
undoubtedly have favored another compromise, for he pointed out
what Calhoun said about that of 1850: "Another such and we are gone."
Neither did Wendell Phillips deny the constitutionality of the new law.
He and Theodore Parker met it with open resistance in the streets of
Boston, asking the conscience Whigs, ' Where is your free
constitution ?'' Meantime they had whipped New England into a frenzy
over the immorality of the Prigg case and of one of the decisions
of another eminent New England jurist, Chief Justice Shaw of
Massachusetts, and so discredited her greatest man, Daniel
Webster, that that impress is still on the man of
letters. They broke Benjamin R. Curtis as a judge
when he succeeded Justice Story on
the Supreme Bench of the United States.
"Goad the slave holder to madness," said the Abolitionist lawyer.
"If the slave holder will give up Section 4 # of Article 4 of the
Constitution, we will have him up against the Sommerset case, and with
it as a premise we will control the public opinion of Great Britain,
and consequently her government, against him."
Tracing his lineage back to the Mayflower, inheriting a competency, a
graduate of Harvard, with excellent prospects for a valuable
private practice and political preferment, both of which he gave
up in order, as he said, to represent three million human beings "who
stood mute within our civilization and our laws," Wendell Phillips
demonstrated he was the best informed and ablest lawyer of his time.
But a lawyer with a single client is always a dangerous man in a
community. If consideration for the unfortunate whites, whose destiny
for the time being at least was tied up with the bondsmen, can be laid
aside, Walter Q. Gresham always kept them in mind, then the advocate
of unconditional and immediate abolition must be rated the clearest
sighted and boldest statesman America ever produced. The distinction,
as the Frenchman put it, is the difference between "men of the nation
and men of the bar.
From the time of the Prigg decision, Wendell Phillips held
Massachusetts as a legal entity out of the Union. Jefferson Davis made
that point in his farewell address in 1861, and as a reason why the
Southern brothers should be permitted to depart in peace. He said that
in 1850 he had opposed the coercion Daniel Webster then exerted on the
people of Massachusetts. And so well did Webster, as the head of the
Fillmore administration, enforce the law, that Wendell Phillips after a
time advised the fugitives they were no longer safe in Massachusetts,
and unless they were prepared to resist by taking human life, they
should flee to Canada.
Webster was a patriot when he forced
South Carolina, with the fiery
Jackson making concessions, to live up to a tariff law that bore
heavily, but an apostate and Ichabod when he made the people of
Massachusetts the State that seconded South Carolina's motion for a
pro slavery constitution obey the law of Congress passed in
pursuance of that constitution and warned Massachusetts what might be
the consequence of her disobedience.
The student had learned the "hang" of the office under the big elm tree
with the reports and the briefs, when Daniel Webster, a heartbroken
man, on October 29, 1852, breathed his last at Marshfield, to be
vindicated even by Wendell Phillips, as well as Abraham Lincoln.
Webster's last words were: "A few Abolitionists have more influence
than I and all the public men in America." Five months before Webster's
demise, Henry Clay had died, at the National Hotel in Washington.
Long before Walter Q. Gresham formally began the study of the law, he
had read many of Webster's speeches. In the log schoolhouse he had
declaimed, as many another schoolboy has done, before and since, that
prayer of Webster in his reply to Hayne: "When my eyes shall be turned
to behold for the last time the sun in heaven, may I not see him
shining on the broken and dishonored fragments of a once glorious
union; on states dissevered, discordant, belligerent, on a land
rent with civil feuds, or drenched, it may be, in fraternal blood."
History will rate Webster a great statesman, as well as a great lawyer.
A thorough mastery of the pro slavery provisions of the Constitution of
the United States, of the legislation and decisions under it, and
of the slave code of Kentucky, as a part of his legal education,
satisfied Gresham that the theory of Wendell Phillips and William Lloyd
Garrison, possibly potential in the end, but harsh and cruel, was
wrong. Their first premise that slavery was immoral merely confirmed his mother's teaching and the prompting
of his own heart. But their
second premise and the Springville Resolutions anticipated them by
twenty years that the Constitution of the United States was per
se a
pro slavery instrument, did not support their conclusion that the
Fugitive Slave Law be defied and the Union destroyed. He was confirmed
in this by the opinion of John C. Calhoun, that the preservation
of the Union meant in time the extinction of slavery.
It was in those formative days that Walter Q. Gresham learned, as he
afterwards often remarked, that it was at the Hartford convention of
1814 that secession, at least in a practical way, was first suggested,
and this fact he always afterwards kept in mind when considering the
action of the men who went into the rebellion.
The convictions of Henry Clay, as expounded by Daniel Webster, he
grasped as correct, namely, that if the Union could be held together,
the growth and development of the country and public opinion would, in
time, bring about the abolition of slavery without violence and
bloodshed, and with compensation to the slave holders. In short, Walter
Q. Gresham never was an Abolitionist. Moreover, he used his influence
with the young men about Corydon to abate the activities in the
Underground Railroad. He came to the conclusion then, as he afterwards
maintained, that a State, the same as an individual, whether an anti-
or a pro slavery man, should obey the Federal power in the exercise of
all its legitimate functions. His pro slavery friends, his Kentucky
friends, and the lawyers from Brandenburg down the river to
Cloverport and back in the State to Hardinsburg and Elizabethtown,
never doubted his good faith when he told them that he was glad that
Indiana had no personal liberty laws on her statute books such as those
of Massachusetts. Because these laws were unconstitutional and
furnished a pretext for secession, he was against them.
