Freese Jacob R.
Secrets of the Late Rebellion
The court then adjourned. On the afternoon of the same day each party chose their man, and the Provost-Marshal consented to act as the third. Next morning the three went to the store-room, accompanied by Mr. G. and Mr. T., and before noon had a sufficient amount of goods selected and set apart to cover Mr. G.'s claim. In the afternoon they presented their written report to the Provost-judge; he examined and approved it, and at once gave an order for the delivery and shipment of the goods. Next day they were shipped, and probably a better pleased man never left Alexandria than Mr. G.
The only other case of this character to which we can give place, occurred between a large wholesale dry-goods firm of New York and one of the largest retail dry-goods houses in Alexandria, and differed from the first case only in the fact that here the store was securely locked up, and had been ever since the owners left. There was no agent in this case left to sell or otherwise dispose of the goods, though it came out, in the course of the evidence, that the clerk, with whom the keys had been left, had frequently been seen to take large packages of goods from the store, and he acknowledged that he had sent some across the lines to his former employers.
In this case, as in the one related, the New York merchant went to Alexandria to look after his customers, and found them gone. After considerable inquiry, he found the clerk who had the keys, but the clerk said he had no authority from the owners to do anything, and would not so much as open the store to allow the creditor to look in. The merchant then called upon Judge Freese and told him the facts of the case. The Judge informed him that the court now had a regular course of procedure in these cases, and if he chose to pursue that course he could bring his case before the court. The merchant inquired what was the procedure? The Judge informed him that the first step was, for the party having a claim to make an affidavit as to its amount and its correctness – the same as in cases of attachment in ordinary courts; that thereupon the court issued an order, having the force of an attachment, to the Provost-Marshal, to take charge of the goods of the defendant until such time as the case could be heard – usually in one week from the day the attachment issued; that the plaintiff must then produce his original books of entry, or note, or other evidence of debt, and satisfy the court, beyond any possible doubt, that the debt is due and unpaid; that when this had been done – the defendant meanwhile, or any one for him, having, of course, full opportunity to make any defence within his power, if any he had to make – the court appoints three wholly disinterested persons to fix the value and set apart so much of the defendant's goods as would satisfy the claim of the plaintiff, with cost of transportation to a market, and costs of proceedings; that the three commissioners must then make report, with schedule of goods set apart, to the court; that the court carefully examines said report, and if found correct in all particulars, then issues an order to Provost-Marshal to deliver to plaintiff the goods so set apart; upon receipt of which the plaintiff executes receipt to Provost-Marshal for the goods, as in full liquidation of his claim against the defendant. The proceedings, the Judge said, were so plain that a child could understand them, and so open and straightforward, from first to last, that a mistake was scarcely possible.
The merchant expressed his delight at the mode of procedure, as detailed by the Judge, and said he was ready to make the preliminary affidavit at once, and in a week would return to Alexandria with his books and witnesses to substantiate his claim. The Judge drew the necessary affidavit; the merchant subscribed and swore thereto; the Provost-Marshal was sent for; the order for attaching the goods put into his hands; and within one hour from the time when the New York merchant entered the Judge's office, guards stood in front and at the rear of the building, to see that no goods were taken from the store-room. The young man who had the keys was then sent for, and told to write to his employers, and inform any friends of his employers who might still be in Alexandria, of just what had been done thus far, and that the court had appointed one week from that day to hear the case. If they, or any one for them, had any defence to make, they should be at the court-room at ten o'clock of that day and should then be heard. He thanked the Judge for his courtesy in sending for him, and for the timely notice given for defence, and was about to retire, when the Judge told him that he might hand the keys over to the Provost-Marshal until the case had been disposed of. This he at first refused to do, but a few words from the Judge satisfied him that wisdom was the better part of valor, when he took the keys from his pocket and handed them to the Marshal.
In one week the trial came on. The New York merchant, on behalf of his firm, appeared with his books and with the clerk who had sold and delivered the goods. The defendants were not present, but were represented by their clerk, by the secession lawyer of the city, heretofore spoken of, and by about a dozen other gentlemen, who were friends, if not relatives, of the absconded debtors. The plaintiff proved that the books before the court were the original books of entry of the firm of which he was a member. By his clerk he proved the sale and delivery of the goods, item by item, as charged upon the books. By himself he proved that the debt was now due, and that no part of it had ever been paid. The court then asked if there was any person present to make a defence in this case, if so, they would now be heard. The clerk then arose and said he "was instructed by the attorney of the firm to say, that while they had no formal defence to make in this case, yet they desired to enter their protest against the jurisdiction of this court, and to reserve to and for themselves whatever rights they might have under the laws of Virginia." He added, that he himself "was aware that the firm, of which he was formerly a clerk, had purchased goods of the New York firm represented in this case, and had no doubt that the amount they claimed was due them; but that it would have been wiser and more honorable in them to have waited until the war was over, when they would undoubtedly have been paid dollar for dollar." The court inquired if there was any other gentleman present who desired to offer any evidence, or say anything by way of defence in this case. There was no response.
The court then proceeded to give an opinion in the case, which occupied nearly an hour, and was listened to with almost breathless silence by the large audience present. In amount claimed, and in point of high standing, both as to the plaintiffs and defendants, it was the most important case of the kind yet brought before the court, and for the information of the general public, no less than for the parties immediately interested, the Judge thought it well to state the principles upon which the court acted, and their applicability to the case in hand. A reporter present wrote out the opinion, which, by request of the New York merchant, was published soon after in the New York Times, occupying over two columns of closely printed matter. As most of the principles enunciated in this opinion were the same as stated in the first case heretofore given, it is not necessary to repeat them here. In reply to the clerk's request "to reserve to and for themselves whatever rights they might have under the laws of Virginia," and to the opinion expressed by him that "the New York firm would have acted wiser and more honorable to have waited for their claim until the war was over," the court said:
"Of course, in this, as in every other case, the parties can and do reserve for themselves whatever rights they possess under the laws of Virginia, of which this city forms a part, and, if the rebellion succeeds, the parties reserving these rights will undoubtedly make the best use of them possible; but meanwhile the claimants, so far as this court can effect it, shall have a return of their own goods, or of others equal in value to their claim, and after that, if the debtors, through sequestration laws made by the Confederate Congress, or any laws now made or hereafter to be made by Virginia, can get the goods back or damages by way of reclamation, this court at least will have done its duty. With regard to the opinion expressed by the young gentleman, the court begs to differ with him. By his own confession portions of the goods have already been sent across the lines, and to that extent have contributed to the 'aid and comfort' of the enemies of this government, and had there been no claimants, no interference, there is no manner of doubt that every article in the store would, sooner or later, have gone the same way; and as to the debtors paying the claim after the war is over, if we may judge by what they and their chosen government have already done, there is no more probability of it than for the waters of Niagara Falls to run backwards. As the leap of the waters in that case is irrevocable, so is the leap from the fair haven of loyalty to the deep, dark chasm of disloyalty – once taken, there can be no hope of return." One other matter the court explained in this case, which was not explained in the first, namely, why the goods were not sold at public sale, and the money, instead of the goods, turned over to claimants. He said: "It will be observed that by the rules of procedure adopted in these cases, the court is quite as careful to protect the interests of debtors as of claimants. In ordinary actions for debt, in courts of common pleas, the goods, after being attached or levied upon, are put up at public sale and sold to the highest bidder, and the money received at such sales paid to claimants. In such cases it often happens that, even in a market, goods do not bring one-half and sometimes not one-fourth their real value, and the defendant of course has to suffer the loss. If the goods seized here were thus exposed to public sale, at this time, when two-thirds of its ordinary inhabitants have fled from the city, and when there is little or no market for anything outside of army stores, they would not bring one-fourth their cost; whereas the same goods taken to a market, will sell for about their original cost. Hence the rule in the proceedings whereby goods are assessed by three disinterested persons, and turned over to the claimants at the prices fixed by the commissioners. And the court begs to add – though not boastfully, since it only performs a duty in so doing – that, because of the absence of the defendants, doubly the care is taken that the full market value is fixed to each article turned over to the creditor; and that in every case the court carefully supervises the schedules, to see that no mistakes have been made.
"If the goods were sold at a public sale, the court could in no way control the price, and a debtor's goods might be sold for one-half or one-fourth of their real value; but by this procedure the debtor is sure to receive about the fair value of the goods. The fact that the debtor is absent (although a rebel to the government which this court in part represents) makes us all the more careful to see that he shall have exact justice; for, in all these cases, this court recognizes the principles so ably stated by Bouvier, by Blackburn, and by others who have written on the law of sales – 1. That 'to constitute a sale, there must be a price, which is the consideration given for the purchase of a thing.' 2. That 'the price must be serious, or such a one as the seller intends to require to be paid to him. As to the quantum of the price, that is altogether immaterial, unless there has been fraud in the transaction.' 3. That 'the price must be certain and determined, but upon the maxim, id certum est quod reddi cerium potest, a sale may be valid, although it is agreed that the price of the thing sold shall be determined by a third person! 4. That 'the price must consist in a sum of money which the buyer agrees to pay to the seller; for, if it be paid in any other way, the contract is not a sale, but an exchange or barter. But it is only requisite that the agreement should be for a payment in money; in the sequel it may be changed, and the creditor may take goods in payment, and the contract will still be a sale. It is not requisite that the money should be paid down, either at the time of the sale or the delivery of the goods; it may be upon a credit, or payable at a future time. And, 5. That the consent of the contracting parties must be obtained; by which consent is meant an agreement to something proposed. It does not consist simply in a vague will to sell or to pay; it must bear on all the conditions which may be suggested by the circumstances of the case or imagined by the caprice of the contracting parties.'"
In this case, as in others, the court fixed upon the amount due the claimants, appointed three commissioners to select and assess values to goods to the amount of claim, supervised the report and schedule made, gave order to the Provost-Marshal to deliver the goods; all of which was done, and the New York merchant returned to his home, with the full conviction that in one city at least, and in one court at least, justice was administered without partiality, and without fear or favor of, or to, any one.
Not only was the Judge's decision in this case published, as heretofore stated, in the New York journals, but the newspapers all over the country had more or less to say about it editorially – some favorable and some unfavorable – the particulars of which and the results of which will be more fully stated in the next chapter.
CHAPTER XVI. LEGAL TECHNICALITIES IN CONFLICT WITH COMMON SENSE. ANOTHER ACT IN THE DRAMA. – PRIDE ON THE ONE SIDE AND JUSTICE ON THE OTHER PROMPTING THE ACTORS
THERE is nothing so uncommon as common sense; nor is there anything more distasteful than common sense to such as pride themselves on technical knowledge. The doctor who would rather kill by rule than cure by reason, if the reason chanced to come from a sick-nurse, or from an old woman; and the lawyer who would rather lose a case by observing technicalities and following precedents, than gain it by exercising plain common sense, are by no means so rare as some suppose. They are to be found in all the walks of life, high as well as low, and whenever or wherever found, should be carefully noted, especially by the historian, in order to warn others from falling into a like error.
From the very day the provost-court opened in Alexandria, the secessionists of that city, and all whom they could influence in Washington and elsewhere, commenced to oppose it – not so much openly as secretly. This was especially true of the only lawyer remaining there, and his reasons for opposition were of a threefold character. First, he saw it might, and probably would be used in the interests of the Union cause and in the cause of freedom, and thus interfere with the plans of secessionists and of slave-owners; secondly, he opposed it because the court refused to admit him, or any other lawyer, to practise in it, unless they would first take the oath of allegiance to the United States government; and thirdly, because the court was presided over by one who was not a professional lawyer; by one who seemed to have more regard for justice and equity than for legal technicalities; by one who cared nothing about the laws of Virginia, or law precedents of any State, if one or the other stood in the way of justice; by one who preferred to be guided by the rules of common sense, rather than by the rules of law. To one who is not a professional man himself, all this may seem strange; but to one who has mingled much with professional men, it will be readily understood as comprehending cases which have fallen under his own observation. On the pretence of protecting the people, though really to protect their own selfish interests, both doctors and lawyers have procured the passage of laws in many States, whereby no one is authorized to practise in either profession until he shall have complied with such rules and regulations as these laws prescribe. It is virtually a relinquishment by the people of one of the very first principles of freedom – namely, the right to choose their own agents or servants, but it is submitted to on the plea that it keeps out quacks and pettifoggers. If, while keeping these out, it imparted more of common sense to those taken in, it would be at least compensating in its operations, but it does neither.
It was observed that immediately after the court fined that secessionist five hundred dollars for assault and threat to kill the Unionist (an account of which has heretofore been given), the Alexandria lawyer became doubly active in his opposition to the court, and it was stated, as a reason for his greatly increased activity, that the hardware merchant had agreed to give the five hundred dollars as a fee to the lawyer, provided he could get it back, and procure an order from General McClellan, or from the authorities at Washington, to suppress the court. To effect this object the Alexandria lawyer applied to every prominent secessionist at Washington, and got from each the promise to bring to bear whatever influence he could, through Northern sympathizers. He went himself, personally, to every lawyer in Washington, and appealed to each to protect the "honor of their profession," by assisting to suppress a court which had no legal existence, or, at least, to remove from its head one who was not a lawyer, but a doctor, by profession. Even several Union lawyers were moved to activity by this plea for "protection to the profession," while secession lawyers were ready enough to make this, or anything else, a plea whereby to cripple the government.
It came to the ears of Judge Freese that some of these professedly Union, but really disloyal, lawyers had gone direct to President Lincoln and urged him, both as President and as a lawyer, to issue an order to suppress the Alexandria court, or, at least, direct the removal of the "doctor-judge." The reply, as reported by one who chanced to be present, was characteristic of President Lincoln, and in about the following words: "I have known Dr. Freese as a first-class physician for some years, and have only known of him as a judge for a few months: but from the way he administers law-doses to these Alexandrians, I am beginning to think that he is even a better judge than he is a doctor. He may not understand legal technicalities and the rules of courts quite as well as some lawyers I know of – present company, of course, always excepted – but he shows in his decisions a wonderful deal of common sense, which is far better than rules of law or technicalities. What they say of the doctor reminds me of a story which is told of a man who said he could not cure chills and fever, but was 'death on fits,' and wanted all his patients to have fits, when he would cure them at once. Most of our lawyers and judges are death on technicalities, but can't cure the commonest ills to which society is subjected; whereas, Dr. Freese is curing the ills of Alexandria so rapidly and so successfully, that it will soon be one of the most healthy and one of the most thoroughly Union cities in the whole country'. I would not interfere with him or his court for the world, and don't think any one else should."
Finding that they could make no impression upon the President, they next went to the Secretary of War, Simon Cameron. He listened to all they had to say, and then replied about as follows: "Yes, I've heard considerable about Freese's 'Bayonet Court,' as secessionists and Northern sympathizers with secession call it, and the more I've heard of it the better I like it. I only wish we had just such a court, and just such a judge at the head of it, in every city we've conquered from the rebels. They would do more towards extracting the venom of these secession serpents than all our armies combined. As to the Judge being a doctor, instead of a lawyer, by profession, that only makes me think the more of him. A lawyer is anybody's man who'll pay him a fee, and the one who'll pay the best is apt to get from him the best service, no matter on which side he pretends to be employed, but a doctor has only to cure the case in hand, and can have no conflicting interests; and from the way Judge Freese is pulling out the teeth of those secession scoundrels, by taking from them the means to do harm and transferring it to the pockets of those to whom it justly belongs, and who will use it to sustain the Union cause, I am satisfied that he is just the man for the place, and on no account would I do anything to suppress either him or his court."
Their next applications were to the Attorney-General, Edward Bates, of Missouri, and Postmaster-General Montgomery Blair, of Maryland. Here they struck chords which were much more likely to prove responsive – not only because they each had been pro-slavery men all their lives, and would naturally resent Judge Freese's interference with the "institution," and with those who still claimed the right to hold and to use "human chattels" just as they pleased, but, more especially, because they were both lawyers, both felt a special interest in maintaining the "dignity of the profession" for both expected to return to active practice so soon as they vacated their then official positions in Mr. Lincoln's cabinet. Mr. Bates took up the matter with great earnestness so soon as it was fairly before him, and, within one hour from the time the self-constituted committee left him, he was with the President, urging him to suppress the court. When Mr. Lincoln had expressed his opinions concerning it, Mr. Bates, for the time being, seemed entirely nonplussed; but next day he returned to the attack with renewed energy, and for days and weeks after that, whenever he met the President, he had something to say against the Alexandria provost-court. Mr. Blair also spoke to the President concerning it, and strongly contended that it would greatly aid the Union cause, "especially in the border States," if that court were suppressed. The President did not think so, and would give no such order.
While these efforts were being made with the President and with the Cabinet, corresponding efforts were being made with General McClellan, then in command of the troops on the south side of the Potomac. Within a week or two from the opening of the court, one of the General's aids called upon General Montgomery to make inquiry about it, and several times after that this same aid (whom the Union men of Alexandria knew personally as a pro-slavery Washington sympathizer with the rebellion, though professedly a Union man) called upon General Montgomery to protest against the acts of the court, so far as they related to the people of Alexandria. Whether always sent by General McClellan, or whether he sometimes called on his own volition, was not definitely known. The Alexandria secession lawyer seemed to be on intimate personal relations with this aid-de-camp, and it may have been that this personal relationship stirred up the aid to special efforts. Doubtless the lawyer kept the aid, and, through the aid, General McClellan, well-informed of all that was going on in Alexandria – especially with regard to the doings of the provost court.
Thus matters had gone on, and were going on, up to the time when the last case recorded in the previous chapter was decided by the court. The publicity given to that case, by the publication at length of the Judge's opinion in the New York Times and other Northern papers, aroused the entire pro-slavery secession-sympathizing element of the Northern States, and in a few days thereafter it came surging into Washington like a flood. It beat against the door of every Cabinet officer; it rolled and tumbled about in every hotel and drinking-saloon; it surged violently against the White House; and even found its way into the executive chamber. Mr. Bates now put on renewed and increased vigor, and insisted with the President, that, as all United States courts belonged to his department, and the people held him responsible, as Attorney-General, for their doings and misdoings, he, and he alone, ought to have the deciding of the Alexandria matter, and, if left with him, he would at once suppress the court.
When things had reached this crisis, the President sent word to Judge Freese to call upon him at his earliest convenience. The Judge, after being stationed at Alexandria, had, during the first few months, called frequently upon President Lincoln, Secretary Seward, and Secretary Cameron, as he had known them all personally, and somewhat intimately, for many years; but for the month preceding this word from the President, the Judge had been kept so exceedingly busy with the affairs of his court that he had scarcely been to Washington. On the afternoon of the next day after getting Mr. Lincoln's message, Judge Freese called upon him, and was received with the utmost cordiality. So soon as they were entirely alone, the President told the Judge of the position which Attorney-General Bates had taken with reference to the Alexandria court, and added: "I really think Bates will resign unless he can have his own way in this thing. I wish, Doctor, you would call upon him at once, and see if you can't change his mind. It would be a dreadful thing, just now, when we are in the midst of a war, to have any Cabinet officer resign, as our enemies would regard it as showing weakness on our part, and as a triumph for themselves, and yet I don't want your court closed, if it can possibly be helped. Call upon Bates, Doctor, call upon Bates, and let me know the result."
From the President's room the Judge went direct to Mr. Bates's office and had a long conference with him. The Attorney-General, while admitting the correctness of Judge Freese's decisions, so far as he had heard of them, still insisted that there was no law by which the existence of such a court was authorized, and therefore it ought to cease its operations at once. The Judge admitted that he knew of no law by which such a court was authorized, but contended that "necessity knew no law," and that the existence of just such a court was a real necessity in Alexandria, not only as a means of preserving the peace of the city, but for all other purposes for which courts were ever used, since the State, county, and municipal courts had all run away when the Union troops came in, and this was the only court through which justice could be obtained in any case or for any purpose. All this, the Attorney-General said, seemed to be true, but it was better to wait for justice than to violate known rules of law in trying to obtain it. "The court has no legal existence, sir, the court has no legal existence," he kept saying over and over again, and this was his answer, and his only answer, to every argument brought forth by the Judge. The Judge finally made him this proposition: "If you, sir, will withdraw your opposition to the continuance of this court, I will enter into a bond with the United States government, in the sum of one hundred thousand dollars, with good and sufficient sureties, the condition of which bond shall be, that, when the war shall have ended, every case which has been adjudicated by that court, and every one which may be adjudicated by it hereafter, shall be revised by the Supreme Court of the United States, or by any one or more of the justices thereof, and if in any case it be found that injustice has been done, I will refund to the parties doubly the amount out of which they have been wronged because of the action of the court; or, if any punishment has been inflicted beyond what the Supreme Court will say was right, under the circumstances, I will pay to the party punished, or to his legal representatives, whatever damages the Supreme Court may adjudge."
"This, certainly," replied the Attorney-General, "is a very fair proposition on your part; but, sir, the court has no legal existence, no legal existence, and while I remain Attorney-General, and am responsible for whatever is done in this department of governmental affairs, I cannot consent that such a court shall continue."
This ended their interview, for the Judge plainly saw that he might talk till doomsday and yet not change the Attorney-General's mind an iota. "Convince a man against his will, and he remains of the same opinion still," says an old maxim, and never was the maxim better exemplified than in the case of Mr. Bates. He was one of those men who looked at everything, as it were, through a gun-barrel, and could see nothing to the right or left of the one line of vision; one of those men who are so straight, that, like the Indian's gun, they "lean a little over;" one of those self opinionated men, who, having once conceived an idea or prejudice, no amount of argument can change his mind.
The next day the Judge again called upon the President, and told him all that had passed between the Attorney-General and himself. The President laughed heartily at the "mulishness of old Bates," as he called it, and yet seemed a good deal annoyed at the unreasonable stubbornness manifested by the Attorney-General. He did not, he said, know what to do or to say. He was in a quandary, and could not see his way clearly out. Finally, he asked the Judge to call upon the Secretary of War, and see what he might say about it.
The Judge then called upon Mr. Cameron, and told him of the interviews he had had with the President and with the Attorney-General, relative to the Alexandria court. The Secretary listened attentively, and, when the Judge had finished, expressed opinions about the Attorney-General more forcible than polite. He talked, he said, "just like a d – d old traitor, and if he is not one, his own tongue belies him!" He strongly suspected, he said, that "both Bates and Blair were wolves in sheep's clothing, and this only went to confirm that opinion." He had, he said, "expressed as much to the President, and would do so again when next he met him." He had thought himself of resigning, rather than remain in the Cabinet in company "with such d – d rascals and traitors to their country." For a full half-hour the Secretary fairly raved with excitement, and when the Judge was about to leave, told him to hold on, let come what would.