Mrs. H. met them in the entry-way, and the moment they saw her, both servants fell on their knees and begged to kiss her hand, or even the hem of her garment. They wept and laughed alternately, and it was some time before she could get them to arise from their knees and go to the room which had been prepared for them. The transition from slavery to virtual freedom, from constant dread to free volition, to what had seemed to them a hell to what now seemed to them a heaven, had been so sudden, that they could scarcely realize it as possible; and, when they reached the room assigned them, both again fell on their knees, and for a full hour returned thanks to God for his mercy and loving-kindness, and implored blessings on those who had shown them such unexpected kindness. Both Mary and her daughter were members of the Methodist Church—the former had been so for many years—and both had always led, so far as was known, consistent Christian lives.
The result of the trial was soon in the mouths of everybody, some condemning, but a large majority approving. The effect was, that not a single similar case was brought before the court after that. The warning of the court was so plain and pointed that all who owned slaves in Alexandria felt that they knew, as well before as after, what punishment would follow ill-treatment, and none were ill-treated.
Had like courts followed the army, or been established in every city of the South on the day they fell into the hands of Union troops, what immense suffering might have been saved; how many rescued from premature graves, caused by inhuman treatment; and how many thousands could have been given the blessed boon of freedom, who were run into Texas, thence to Cuba and Brazil, and thence consigned to a fate worse than death itself!
THE definition given by lexicographers to the word loyalty, namely, "faithful to the lawful government," is so plain that no one can fail to comprehend it; and yet such were the complications in the late war between the United States and the Confederate States, that to no word could a greater variety of significations have been given. The Northern man claimed that to be loyal one must be faithful to the United States government, and all who were not so were rebels. The Southern man claimed that, after the organization of the Confederate States government, no man south of "Mason and Dixon's line" could be regarded as loyal who was not in favor of, and faithful to, that government. The extreme State-rights man claimed that to be loyal one must be faithful to the government of the State in which he resided, or of which he was a native. Each claimed theirs, and theirs only, to be the "lawful" government, and insisted that to be loyal one must be faithful to it, and to it alone, and that any lack of fidelity thereto was disloyalty, and could be nothing.
To illustrate by a figure once before used in this volume—that of a divorce suit between man and wife—it is easy enough to see how the children, taking the side of the father, might charge those who took the side of the mother with disloyalty to the family, and how those taking the side of the mother might retort by saying that else, the mother was quite as much a part of the family as the father, and that those who opposed her were more disloyal to the family than themselves. Thus criminations and recriminations might pass between the children of a divided household—divided in sentiment, if not yet by law—and if a third party were called in as arbitrator, it would be no easy matter for him to decide which of the two was right and which wrong. Viewing the subject from this stand-point, now that the prejudices and excitements of the war are over, it is not difficult to understand how President Davis, General Lee, General Beauregard, General Polk, and their adherents, regarded themselves quite as loyal as President Lincoln, General Grant, General Sherman, General Sheridan, and their followers. Each regarded theirs as the "lawful government," and that only by adhering to it, by being faithful to it, could one justly claim to be loyal.
But there was a third class in the war, who, while claiming to be faithful to one government, were, at heart, in favor of the other; who only wore the "garb of heaven" that they might the better "serve the devil;" who were ever ready to make promises to both sides, but who were true to neither; men who, like Marlborough, while pretending to be faithful to William III., was really plotting to restore James II. So well laid were Marlborough's plans, that Macaulay says, "Had Marlborough, therefore, after securing the cooperation of some distinguished officers, presented himself at the critical moment to those regiments which he had led to victory in Flanders and in Ireland, had he called on them to rally around him, to protect the Parliament, and to drive out the aliens (William's friends), there is strong reason to think that the call would have been obeyed."
Writing of the disloyalty and treachery of many who surrounded the throne of William and Mary at that time (1691), Macaulay says: "Wicked and base as their conduct was, there was nothing in it surprising. They did after their kind. The times were troubled. A thick cloud was upon the future. The most sagacious and experienced politician could not see with any clearness three months before him. To a man of virtue and honor, indeed, this mattered little. His uncertainty as to what the morrow would bring forth, might make him anxious, but could not make him perfidious. Though left in utter darkness as to what concerned his interests, he had the sure guidance of his principles. But, unhappily, men of virtue and honor were not numerous among the courtiers of that age. Whitehall had been, during thirty years, a seminary of every public and private vice, and swarmed with low-minded, double-dealing, self-seeking politicians. The politicians now acted as it was natural that men profoundly immoral should act at a crisis of which none could predict the issue. Some of them might have a slight predilection for William; others a slight predilection for James; but it was not by any such predilection that the conduct of any of the breed was guided. If it had seemed certain that William would stand, they would all have been for William. If it had seemed certain that James would be restored, they would all have been for James. But what was to be done when the chances appeared to be almost exactly balanced? There were honest men of one party who would have answered, 'To stand by the true king and the true church, and, if necessary, die for them like Laud.' There were honest men of the other party who would have answered, 'To stand by the liberties of England and the Protestant religion, and, if necessary, die for them like Sidney.' But such consistency was unintelligible to many of the noble and the powerful. Their object was to be safe in every event. They therefore openly took the oath of allegiance to one king, and secretly plighted their word to the other. They were indefatigable in obtaining commissions, patents of peerage, pensions, grants of crown land, under the great seal of William, and they had in their secret drawers promises of pardon in the handwriting of James."
Now let the reader turn back and read this extract and the one preceding it about Marlborough, both from Macaulay's History of England, over again, carefully and considerately—putting the name of Abraham Lincoln in the place of William, wherever it occurs; and the name of Jefferson Davis in place of James, wherever it occurs, and whatever name he pleases in place of Marlborough's, and he will, we think, be entirely competent to draw his own similitudes, and to understand the causes of many things heretofore related in this volume, and of some which we purpose to relate in this chapter.
Another class of cases occasionally brought before the Provost-Court, at Alexandria, related to loyalty. To relate the details of one or two of these cases will give to the reader a general conception of the whole.
Mr. E.'s usual residence was in Sussex County, New Jersey, but in some way, and at some time, he became the owner of a farm not many miles from Alexandria, Virginia. In throwing up earth-works at Munson's Hill and at other points, with a view to protect Washington and Alexandria, it so happened that Mr. E.'s farm was left about one mile outside of the Union lines. And it so happened, too, that the Confederates, in establishing their picket-line and temporary works of defence, made them about one mile the other side of Mr. E.'s farm. This left him literally "between two fires," for the mounted cannon on either side could throw a ball into his house at any moment, and squads of cavalry from both sides occasionally visited his house. Had he continued to look after his farming operations, and those only, he would probably not have been seriously disturbed by either side; but the love of the almighty dollar so far prevailed over his better judgment and his loyalty, that he concluded to try merchandising, in a surreptitious way, at his own farm-house. For years previous he had been in the habit of purchasing the supplies for his farm in Alexandria, which, with the fact that he was a Northern man and was presumed to be, as he professed to be, entirely loyal to the United States government, made it no trouble for him to procure passes in and out of the Union lines, whenever he had occasion to use them. After awhile it was observed that he passed in and out of the lines much oftener than he had been in the habit of doing when the line was first established, and that he usually drove a two-horse wagon, with a cloth cover over it, and apparently well filled within. It was observed, too, by officers, with their field-glasses, from the works at Munson's Hill, that Confederate cavalry visited Mr. E.'s house much oftener than they had been in the habit of doing during the first months of the war, and how many, both of cavalry and infantry, visited his place at night, of course they had no means of knowing. When Union cavalry or infantry visited his house, they never saw anything more than was usual about farm-houses, and he always welcomed them with the utmost cordiality. He regretted, he said, that Confederate soldiers visited his house so often. They seemed, he said, to suspicion that he was too intensely Union, but he quieted them by saying that while, of course, he was a Union man, and could be nothing else, yet he meant to be entirely neutral so long as the war continued, and, while he could do nothing for them, he would do nothing against them. The peculiarity of his situation, between the two lines, made this answer seem entirely reasonable to the Unionists who visited him, or who questioned him at any time, and passes continued to be issued to him whenever he applied for them.
Thus matters went on for weeks and months, until one day, when he was about passing a sentinel's post, the sentinel had the curiosity, not only to inquire, but to make a careful examination, of what he had in his wagon. He found barrels of sugar, bags of coffee, chests of tea, sacks of salt, barrels of whiskey, and such other articles as are usually kept and sold at country stores. The sentinel asked Mr. E. if he did not keep a store? Oh, no, he said, he bought these things all for his own use and for the use of his servants on the farm, of whom he had a large number. He never sold an ounce of anything to anybody, and kept his supplies so concealed that when rebels came to his house, as they did sometimes, they never could see anything. On no consideration would he sell or give anything to the rebels, and the Union soldiers, of course, never had occasion to buy anything outside of their lines.
His manner, as well as his words, still further excited the suspicion of the sentinel, and so soon as he was relieved he went to his captain and told him all that had occurred. The captain reported the facts to his colonel, and received orders from him to instruct the sentinel on that post that when Mr. E. next attempted to pass out of the lines with a load of groceries to halt him, and bring him and his wagon to the regimental headquarters. Only a few days elapsed, when Mr. E. again attempted to pass out with a heavier load than at any time previous. When he showed his pass, as usual, the sentinel replied that his orders were to halt him until he could call the corporal of the guard. Mr. E. protested against the unnecessary detention, but, as the sentinel would not yield, he could do nothing else than wait until the corporal came. The corporal informed him that he must turn his team about and accompany him to the regimental headquarters. Mr. E. was now more alarmed than ever, and tried first to cajole and then to bribe the corporal and the sentinel to let him pass, but they would not listen to his overtures. Finding no other way, he turned his team about and accompanied the corporal to the regimental headquarters. The colonel examined Mr. E.'s load and found that it consisted principally of groceries. In reply to the question, What he did with them? he answered the colonel, as he had before answered the sentinel, that he used them for himself and the servants on his farm; that he did not sell an ounce to the rebels; would not, under any circumstances, etc., etc. The colonel listened respectfully to all that Mr. E. said, but did not believe a word of it. When he had finished, the colonel replied, very calmly but very determinately, that as Mr. E. was a private citizen, and could not, therefore, be tried by a court-martial, he must accompany him next morning to Alexandria, that all the facts of the case might be laid before the Provost-Judge of that city for such action as he might think proper. Meanwhile, his team and his goods would be well taken care of, and he should regard himself as in arrest. Mr. E. protested, but soon became satisfied that he was in the hands of one who could not be cajoled or trifled with, and that submission was his only course.
Next morning the colonel, accompanied by Mr. E., the corporal, and the two sentinels—the one who had examined Mr. E.'s load the first time and the one who had detained him last—went to Alexandria, reaching there about nine o'clock. They went direct to the general, headquarters, and the colonel at once communicated all the facts to Judge Freese. He replied that the provost-court met at ten o'clock, and that so soon as all other cases had been adjudicated this case should be heard, and that the colonel, his prisoner, and his witnesses should be in attendance.
Promptly at ten o'clock the court opened. A dozen or more cases were heard and adjudicated, after which the case of Mr. E. was called. The first witness—the first sentinel—gave in his testimony just as detailed heretofore. The second sentinel and the corporal did the same. The colonel then related all that he knew about the case, and in the course of his testimony, said that he had known of Mr. E. ever since encamped where he then was; that he had frequently heard other officers speak of him; that he, with others, had often watched Mr. E.'s house through their field-glasses, and frequently seen rebel officers and privates coming and going; that for a week previous Mr. E. had gone backwards and forwards through the lines every day or two, usually in a two-horse covered wagon, and dressed as a hard-working farmer; that he always had with him a permit from the general commanding to pass in and out, and that his sentinels had never thought to question his right so to do until after the one sentinel took the liberty of looking in Mr. E.'s wagon, and found it filled with boxes and barrels; that since then he had talked the matter over with the general and several other officers, and all agreed in the opinion that Mr. E. was selling these supplies to the enemy; that, thereupon, he had directed the sentinel upon that post to be instructed to arrest him and bring him to his headquarters should he again attempt to pass with a loaded wagon; that his wagon, when so arrested, was loaded, as heavily as two horses could well draw, with groceries, liquors, etc., and that the team, wagon, groceries, and liquors were now in his camp subject to any order the court might make.
Mr. E. was then called upon by the court to present any witnesses he might have, or to offer himself as a witness, or to say anything he could in his own defence, or all together, if he chose.
Mr. E. replied that he had no witnesses to offer, but, if the court please, would like to make a statement. He then repeated about the same story he had told the sentinel and the colonel, and added, that in Sussex County, New Jersey, where he was well known, nobody doubted his loyalty; that his father had, at one time, been a member of Congress from that State, and that he himself would probably have raised a company or a regiment of volunteers when the war commenced had he not owned this plantation in Virginia and had it to look after. He insisted upon his loyalty, and strongly urged his immediate release from arrest.
The court replied that cases of this kind were exceedingly perplexing at all times, and he, the Judge, would only be too glad if there were some other tribunal to which they could be referred; but as there was not, he could not do less than hear them, and after hearing, if he found cause for action, he could not do less than act. "In this case it was perfectly plain to the court that, notwithstanding Mr. E.'s denial, he had been selling groceries, liquors, etc., to officers and privates of General Lee's army, and might, therefore, fairly be presumed to have given 'aid and comfort to the enemy.' But the court did not believe that it had been done with any such intent. On the contrary, the court believed that it was the love of money—which is said to be the 'root of all evil'—that had induced the defendant to do just what he had done. Mr. E. is one of the thousands and tens of thousands throughout the North who, while making loud professions of loyalty, are all the while looking out for the 'main chance;' whose loyalty goes no deeper than their pockets; whose self-interests so far overbalance any sentiment of patriotism or loyalty, that they would be Lincoln men, or Davis men, just as they thought the one or the other was likely to win; who, while claiming the protection of one government and getting from it all they could, were all the while profuse in promises to the other, and ready to do for it whatever they could, whereby to put dollars in their own pockets or honors upon their own heads or shoulders. Nor is this sentiment confined to farmers and merchants, but the court regrets to have to believe it is to be found in the army, in the navy, in the very presence-chamber of the chief executive, and what is true of the North, the court has no doubt is equally true of the South, though not probably to so great an extent.
"In this case the defendant, doubtless, excused himself somewhat on the ground that he was doing it upon his own property, and that he was doing it as a matter of self-preservation, which, as has been well said, is the 'first law of nature.' But while such pleas would be entirely valid in time of peace, they are not valid in time of war. At such a time, all private interests have to yield to the public good, and what may seem like the taking away of natural rights from the one, may be justice, only justice, to the many. The defendant, too, though a man of general intelligence, was probably not aware that he was violating any law, State or national, in doing what he did.
"Viewing the case from all these stand-points, the court has decided to suspend sentence upon this defendant until he shall be again found violating, or not fulfilling, the orders of the court. Meanwhile, the court orders that the goods now in Mr. E's wagon shall be brought back to Alexandria and returned to the parties from whom they were purchased; that, immediately after, whatever other goods may be found upon Mr. E.'s premises (other than enough to support the servants on the place for one month, if any servants at all be found there) shall be brought to this city and returned in like manner; that, after remaining one week longer on his farm, to 'put his house in order,' Mr. E. shall return to his home in Sussex County, New Jersey, and remain there until the war closes; that, if at any time after one week Mr. E. be found upon his farm, or in Alexandria, he be at once rearrested and brought before this court for sentence upon the charges now pending; and, if so brought, the defendant may rest assured that he will not have opportunity to give the enemy any aid and comfort after that.
"With you, Colonel W., the court leaves the execution of this order in all its details, and, while thanking you for what you have already done, will thank you still more when you have rendered this additional service for the government."
The court then adjourned, and, of the large number present, there was probably not one, save the extremists on either side, who might be counted on one's fingers who did not approve of the action of the court in the case. It need only be added that the orders of the court were carried out to the letter; that Mr. E. returned to his home in New Jersey and remained there until the war ended.
Another case, of altogether a different character, and yet involving the same principle—namely, that of disloyalty to the government by aiding the enemy in a surreptitious way—occurred not long after and was as follows:
The "Hutchinson Family," who had been giving a series of concerts in Washington, was invited by some New England regiments, encamped not far from Alexandria, to come to their encampments and give a series of concerts. The "Family" had accepted the invitation and given several concerts in pursuance thereof. Of course, their programme was made up largely of war lyrics—at that time by far the most popular songs with a Northern audience, and especially with soldiers—among which was that wonderful, soul-stirring poem by the Quaker poet, John G. Whittier, as follows:
"We wait beneath the furnace blast
The pangs of transformation;
Not painlessly doth God recast
And mould anew the nation.
Hot burns the fire
Where wrongs expire;
Nor spares the hand
That from the land
Uproots the ancient evil.
''The hand-breadth cloud the sages feared,
Its bloody rain is dropping;
The poison-plant the fathers spared
All else is overtopping.
East, West, South, North,
It curses the earth:
All justice dies,
And fraud and lies
Live only in its shadow.
"What gives the wheat-field blades of steel?
What points the rebel cannon?
What sets the roaring rabble's heel
On the old star-spangled pennon?
What breaks the oath
Of the men o' the South?
What whets the knife
For the Union's life?—
Hark to the answer: Slavery!
"Then waste no blows on lesser foes,
In strife unworthy freemen;
God lifts to-day the veil, and shows
The features of the demon'
O North and South*
Its victims both,
Can ye not cry,
'Let Slavery die!'
And Union find in freedom?
"What though the cast-out spirit tear
The nation in his going?
We who have shared the guilt must share
The pang of his o'erthrowing!
Whate'er the loss,
Whate'er the cross,
Shall they complain
Of present pain,
Who trust in God's hereafter?
"For who that leans on his right arm
Was ever yet forsaken?
What righteous cause can suffer harm,
If He its part has taken?
Though wild and loud,
And dark the cloud,
Behind its folds
His hand upholds
The calm sky of to-morrow!
"Above the maddening cry for blood,
Above the wild war-drumming,
Let Freedom's voice be heard, with good
The evil overcoming.
Give prayer and purse
To stay The Curse,
Whose wrong we share,
Whose shame we bear,
Whose end shall gladden Heaven!
"In vain the bells of war shall ring
Of triumphs and revenges,
While still is spared the evil thing
That severs and estranges.
But blest the ear
That yet shall hear
The jubilant bell
That rings the knell
Of Slavery forever!-
"Then let the selfish lip be dumb,
And hushed the breath of sighing;
Before the joy of peace must come
The pains of purifying.
God give us grace,
Each in his place
To bear his lot,
And, murmuring not,
Endure, and wait, and labor!"
To this was added another of Whittier's poems, called The Crisis, as follows:
"The crisis presses on us; face to face with us it stands,
With solemn lips of question, like the Sphinx in Egypt's sands!
'This day we fashion Destiny, our web of fate we spin;
This day for all hereafter choose we holiness or sin;
Even now from starry Gerizim, or Ebal's cloudy crown,
We call the dews of blessing, or the bolts of cursing down!
"By all for which the martyrs bore their agony and shame;
By all the warning words of truth with which the prophets came;
'By the future which awaits us; by all the hopes which cast
'Their faint and trembling beams across the blackness of the past,
'And in the awful name of Him who for earth's freedom died;
O ye people, O my brothers! let us choose the righteous side!
"So shall the Northern pioneer go joyfully on his way,
To wed Penobscot's waters to San Francisco's bay;
To make the rugged places smooth, and sow the vales with grain,
'And bear, with Liberty and Law, the Bible in his train;
The mighty West shall bless the East, and sea shall answer sea;
'And mountain unto mountain call: Praise God, for we are
free!"
Though the regiments to which they sang were made up principally of anti-slavery men, yet there were a few proslavery men among them, and these objected, loudly and vehemently, to introducing or stimulating anti-slavery sentiments among the soldiers. Especially did they object to those lines by Whittier. This caused considerable discussion among both officers and men, which, through one of the pro-slavery officers, finally reached the ears of General McClellan, then in command of the forces south of the Potomac. The General, for reasons best known to himself, thereupon issued an order to the "Hutchinson Family" to sing no more in the camps, and retire at once.
In obedience to this order, the "Family" left the camps and came to Alexandria, on their way to Washington. The reason for their leaving the camps had reached Alexandria before the coming of themselves, and had produced a very strong feeling among the Union men of the city against General McClellan, and in favor of the Hutchinsons.
On reaching there, they were called upon by a number of leading citizens, among whom was Hon. Louis McKenzie, afterwards a member of Congress from that district, and then and always a consistent Union man. They requested the Hutchinsons to give a concert in the city before leaving, and promised them a large and sympathizing audience. The Hutchinsons were entirely willing to give a concert, provided they could be assured of protection; but, having just been ordered by General McClellan to leave his command, they feared to sing again south of the Potomac, unless they had permission, and promise of protection, from the local authorities. This the callers promised to procure, and at once went to the general headquarters for that purpose.
They at first called upon General Montgomery. He, while entirely sympathizing with their wishes, hesitated about giving such formal permission, or promising any such protection, for the reason, that, being within General McClellan's command, the General might regard it as a contempt of his order to the Hutchinsons; nevertheless he would impose no objections of any kind, and recommended the applicants to see Judge Freese about it. General Montgomery really desired to do all that the committee requested; but, for the reasons above stated, preferred that Judge Freese should do it, by virtue of his milito-civic authority as judge of the provost-court.
The committee next called upon the Provost-Judge and laid all the facts before him, stating that General Montgomery had suggested that they call upon him. They urgently requested Judge Freese to grant the needed permission, with promise of personal protection. The Judge did not hesitate a moment to grant both requests. He told the committee that if the court, backed by the provost-guard, was not strong enough to protect peaceable citizens in the giving of a concert, no matter what was sung, the sooner the people knew it the better, and he was ready to test the matter at once. As to General McClellan's order, he regarded it as wholly unreasonable, and the army regulations required no officer to obey an "unreasonable" order. While he had a very high regard personally for General McClellan, he thought, in this matter, he had given too much heed to the enemies, and too little heed to the friends, of the government; and, whatever might be the consequences to himself, he had no hesitancy in granting the asked-for permission and promise of protection, even though General McClellan or his friends should regard it in direct contumacy of his order to the Hutchinsons. The Judge further said to the committee, that he "particularly desired Whittier's great poem to be sung, nor need the singers hesitate to introduce other war lyrics of like character—the more the better."
The committee then procured one of the churches in which to hold the concert, and fixed upon the evening of the next day as the time. Meanwhile the Provost-Judge directed the Provost-Marshal to double the number of guards throughout the city for that night, from eight to twelve o'clock, and to have all who were not on post at the church while the concert was being held—each with loaded musket and fixed bayonet.
The news of the proposed concert spread rapidly through the city, and when the evening and hour arrived, every seat in the church was filled, while hundreds were gathered outside. The windows of the church were thrown wide open, that the citizens and soldiers outside might the better hear the words and music. The Provost-judge and Provost-Marshal took seats near the outer door, and it was observed that while they seemed to give one ear to the music, the other was given outside, to catch the first note of alarm, should any occur. General Montgomery expressed a very strong desire to attend the concert, but, out of courtesy to General McClellan, his commanding officer, thought he had better not, and therefore stayed away. The concert proceeded without an iota of disturbance, and gave great pleasure to the many hundreds present. Whittier's poem, and several others of like character, were so encored that the singers were obliged to repeat them. When the concert had ended, the Provost-judge and Provost-Marshal, with the guard which had been stationed about the church, accompanied the Hutchinsons to their lodgings, and left them in care of trusted friends. They were not disturbed through the night, and left next morning for Washington, well pleased with their stop-over at Alexandria.
This was not only a triumph over disloyalty, but another instance strongly illustrating the restraining power which the provost-court held in that community. The day preceding the concert, and the day of the evening on which it was held, there were loud threats not only among avowed secessionists, but among anti-administration men, that the concert should not be given. Their own personal and political prejudices had been so aroused, backed and stimulated by General McClellan's order, that a single spark would have ignited their whole magazine of passion; and but for the wholesome dread which they had of Judge Freese's "Bayonet Court," as they were then in the habit of calling it, that spark would undoubtedly have been applied.
The love of money, old political prejudices, and inordinate ambition, were the three vile roots from which most of disloyalty sprang during the late war, both in the North and in the South; and the illustrations given in this chapter are but two of hundreds which might be given, if the proposed limits of this volume would allow.
ANOTHER class of cases brought before the provost-court at Alexandria related to disloyalty as affecting the property-rights of individuals. In the hasty evacuation of the city, when the Union troops were about coming in, many had left their carpets, furniture, pianos, bed? and bedding, cooking utensils, everything, indeed, except the clothing upon their persons and such few things as they could pack in trunks. In some cases, persons remaining in Alexandria had been given the keys of abandoned houses and stores and the goods within left in their charge; but in other cases, so great had been the fright and haste of the occupants, that even this precaution had not been observed. What was true of Alexandria was no less true of the country for several miles around. As regiment after regiment came over from Washington and encamped at points from one to five miles west and south of Alexandria, they found many farm-houses and gentlemen's residences abandoned, in which had been left the furniture, the pianos, the beds and bedding, and whatever else could not be carried away in trunks. Of course, all such abandoned residences were appropriated for headquarters of divisions, brigades, and regiments, so far as they were needed for such purposes; and, in Alexandria, such residences as were not needed for headquarters were quickly applied for (or taken possession of in many cases without any application to the General commanding) by those who came to the city for purposes of trade, and for other purposes.
Thus far everything progressed with what seemed to be a sort of general consent; but pretty soon a new class of questions arose, in which there was a decided difference of opinion, not only as between Union citizens and secessionists, but between Union officers and Union soldiers as well. These questions arose from an assumed right, upon the part of some, to appropriate for their own individual use and profit whatever had been abandoned by those who had gone into the Confederate lines, and who thereby had openly declared themselves not only disloyal, but hostile, to the United States government.
Those who assumed such right, attempted to justify their opinions and their acts by referring to the Act of the United States Congress of August, 1861, by which all property used for insurrectionary purposes was made liable to confiscation; and they further claimed that it was but a fair retaliation to the Act of the Confederate Congress, by which the property of all Union men, living within the Confederate lines, was made liable to sequestration.
General Montgomery was among those who believed that, while the army, as an army, had a right to make use of property abandoned by an enemy, individuals, whether as officers, soldiers, or citizens, had no such right; and among his first acts, after being appointed Military Governor of Alexandria, was to direct his Assistant Adjutant-General to issue an order forbidding the use of abandoned property, without permission first had from general headquarters; and when the provost-court was established, he directed Judge Freese to see that that order be in no way violated or evaded. In every case reported to the Judge, where an attempt was made to take an article from an abandoned house and appropriate it to the private use of the taker, whether officer, soldier, or citizen, the party was directed to refrain, or, if already taken, to return it at once, under the penalty of arrest and punishment. This soon became so generally understood in Alexandria that no further attempt was made to appropriate abandoned property for private use and profit there; but, after a time, a case arose from the country, which required the interposition of the court, a trial of the case, and a judgment; and it is this case which we now propose to relate.
Dr. W. was the assistant surgeon of the Fourth-Volunteers, and as good a man, in every respect, as one often meets. When the government called for troops, he was among the first to offer his services, though at that time doing a large practice, having a large family to support, and having but little of this world's goods; and when the Fourth regiment was organized, the governor of his State appointed him its assistant surgeon. This regiment was among the first to reach Washington, and the second to establish a camp beyond Alexandria. The colonel of the regiment was a wide-awake New Englander, an intense anti-slavery man, an ardent admirer and supporter of President Lincoln, one who believed that a secessionist, by becoming disloyal to the government, forfeited all the rights he ever possessed, and that this forfeiture extended to property quite as well as to personal rights. Though he was never known to appropriate any abandoned property to his own private use or profit, yet he had no scruples of using it himself, and of allowing others of his regiment to use whatever fell in their way; and if any of his officers or soldiers asked to appropriate to their own use anything which they had found, he never answered nay. That he was entirely conscientious in all this, no one that knew the man doubted for a moment, however much they might differ with him in political opinion. With a commanding officer holding such decided views, it was not at all surprising that his lieutenant-colonel, major, assistant-surgeon, adjutant, and almost, if not quite, every company officer should, erelong, become as decided as himself upon this question.
Near the spot on which they fixed for an encampment was a large house, which had been abandoned by its owner and occupant on the morning that the Union troops marched into Alexandria. So hasty had been the flight that even the breakfast-table, with the dishes upon it, was left standing in the centre of the dining-room. Not an article of furniture, so far as could be seen, had been removed. The house had been well furnished, and, among other things, had a piano, about half worn. This had doubtless been played upon by daughters of the family as well as by the wife, as there were articles lying about the parlor which plainly indicated recent occupancy by young ladies. The piano stood open when the colonel, doctor, and other of his officers first entered the house, and that most exquisite of all musical compositions, "Home, Sweet Home," was open on the music-holder.
This house the colonel at once appropriated for the headquarters of his regiment, and not only he, but his lieutenant-colonel, major, doctor, and adjutant slept and messed there. They slept in the beds, lounged on the sofas, ate from the table, drank from the sideboard, and used nearly everything about the house except the piano. No one of the officers played, and erelong the piano became one of the neglected, if not one of the useless, articles about the house. One day, when they were all lounging in the parlor, the doctor said to the colonel:
"What a world of pleasure that piano would give my wife and daughters if I only had it at my own home!"
"Well," replied the colonel, "why then don't you send it to your own home? The owner, or once owner—for I hold, you know, that rebels forfeit everything, even their lives—is not here to object, and I am sure I won't."
This led to a general conversation on the subject among all the officers present, the conclusion of which was that the doctor should have the piano boxed, and sent to his family as soon as he could conveniently. This, of course, pleased the doctor greatly, and on the following day he got together boards, and a carpenter, had a suitable box made, the piano carefully packed, and on the day following sent it to Alexandria, with orders to have it forwarded to his home, in New England, as speedily as possible. When it was being unloaded at the shipping warehouse, one of the provost-guard chanced to be present, and inquired of' those who brought it where it came from, who sent it, and where it was being sent to? Those who brought it answered all these questions without hesitancy, nor did they see any wrong in all that was being done; but the provost-guard, knowing what the orders in the city were upon that subject, felt it to be his duty to inform the Provost-Marshal of what he had seen, and no sooner did the Marshal learn of it, than he informed the Provost-judge.
The Judge directed the Marshal to go at once to the shipping merchant, and direct him not to send that box away until further orders from the court. He next directed the Marshal to call that afternoon upon the doctor and the colonel, and request their presence at the court-room next morning at ten o'clock. Should they decline to attend by request, to inform him at once, when he would order their arrest; but he much preferred to have all the facts inquired into without arrests, if it could be done as well. The Marshal called upon the colonel and the doctor that same afternoon, delivered the Judge's message, and both promised to be at the courtroom next morning without fail.
Promptly, as per promise, the colonel, the doctor, and several other officers of the regiment were at the courtroom next morning. The doctor, it was plain to see, felt a little skary, but the colonel was so confident of the justice of his case that he rejoiced in the opportunity of convincing the Judge that for once, at least, he was in the wrong. When all the other cases before the court had been disposed of, the Judge turned to the doctor, and said:
"Now the court will hear your case."
The doctor at once arose, and said he was there in obedience to the orders of the court, but was not at all aware with what crime he was charged.
The Judge replied that, as yet, he was not accused of any crime, nor was he present by the "order," but rather by the request, of the court: The Judge then stated all that he had learned concerning the piano, and how he had directed the shipping merchant not to send it away until further orders from the court; that he had not issued an order for arrest, for the reason that he much preferred to have the whole matter inquired into amicably, as he was under the impression that all done thus far had been from error of judgment rather than from any intent to do wrong; but, if this course were declined, then there was but one other way left—namely, arrest, trial, and judgment, whatever it might be.
The doctor and the colonel both replied that they much preferred an amicable hearing of the case, and were ready, whenever it might please the court, to state all the facts within their knowledge, either under oath or upon their honors as gentlemen and officers.
The Judge expressed his pleasure at this frank manner of meeting the case, and told the doctor to proceed, "upon his honor as a gentleman and officer," to state all the facts of the case within his knowledge—to which he might add any arguments he pleased by way of justification.
The doctor, thus assured and placed entirely at his ease, proceeded, in a calm, pleasant way, to state just what had occurred, and how it occurred, since their occupancy of that abandoned house. He particularly detailed the conversation that had incidentally occurred between the colonel and himself, which led to the packing up and sending away of the piano—all of which, he said, could be confirmed by several officers then in the courtroom; that he had done nothing secretly or surreptitiously, nor had he once dreamed that he was doing a wrong in anything he had done; but if, in the judgment of the court, it was wrong, he was quite ready to undo all that he had done, and have the piano put back exactly where he had found it. As to the matter of justification, he preferred to leave that in the hands of his colonel, who had given, to the subject more thought, and could better express those thoughts than himself.
The Judge then extended to the colonel the same invitation he had given the doctor, and upon the same terms. The colonel thanked the Judge for the courtesy, and then proceeded to state the facts exactly as the doctor had stated them, and exactly as heretofore given in this chapter. This finished, he next entered upon an argument to prove that all that a man had of personal rights, of property, and even of life, he forfeited when he became disloyal to his government. He laid special stress upon the act of sequestration passed by the rebel or Confederate Congress, and said that the taking of abandoned property by Unionists on this side of the line was only a fair retaliation for what the rebels were doing with the Union people of the South. He also referred to the act of confiscation then recently passed by the United States Congress, and contended that if the government thought it right to confiscate the property of rebels in a wholesale way, individuals were certainly justified in doing it in a retail way. The colonel was earnest, at times quite eloquent, and certainly made the best argument that could possibly be made on that side of the question.
When the colonel had finished, the Judge inquired whether any other person present desired to make a statement or an argument in the case. Being answered in the negative, Judge Freese then proceeded to state his own views as follows:
"The court is obliged, very greatly obliged, both to the doctor and to the colonel, for the cordial manner in which they have met the issues of this case. The court was reasonably satisfied before, but is still better satisfied now, that nothing of wrong was intended in all that had been done; that it was simply an error of judgment, and that none will be found more ready than themselves to correct the error so soon as they are satisfied that it is an error. About the facts of the case there is no dispute whatever. All the statements agree. The only question, therefore, is as to the reason or the law of the case. This court is not strictly a law court. It is rather a court of necessity—of a 'necessity that knows no law'—or of equity; but in this particular case it might well afford to stand upon the law alone, even if there were no equities in the case to be considered.
"The act passed by the United States Congress, on the 6th of August last, known as the 'Confiscation Act,' provides that, 'in the present or any future insurrection, any property given to aid such insurrection, or used for that purpose with the knowledge and consent of the owner, shall be subject to seizure and confiscation; that actions for the condemnation of such property shall be brought in circuit, district, or admiralty courts having jurisdiction of the amount, and that the attorney-general, or any district attorney, may institute proceedings, which in such cases shall be wholly for the benefit of the United States, etc.' It will be observed how carefully Congress has pointed out every step of the way by which this act shall be executed; and in order to avoid any possibility of private peculation, the act says, in so many words, 'such case shall be wholly—not in part, but wholly—for the benefit of the United States.' There is nothing in this act to justify a private individual in taking so much as the value of a pin from a house abandoned by an avowed enemy, much less from the house of one who still claims the protection of the common laws of his country, though in temporary rebellion against the authorities now in power. The court, it will be remarked, puts emphasis upon the words private individual; for it holds that, for purposes of the army, for purposes of attack and defence, for purposes of sustenance and locomotion, or even for purposes of comfort, an army, or any regularly organized part of an army, may seize, hold, and use any property, real or personal, that may have belonged to those now in arms against that government.
"The colonel has also referred to the act passed by the Confederate Congress, on the 30th of August last, known as the 'Sequestration Act,' and thinks the passage of that act justifies Union men in appropriating to their own use any property that may have been abandoned by the enemy. That act was passed about three weeks after the 'Confiscation Act' by the United States Congress, and shows upon its face that it was altogether retaliatory. Indeed, one section of the act says this in so many words. That section, which really gives the animus of the whole act, reads as follows:
"'Be it enacted by the Congress of the Confederate States, that all lands, goods, rights, and credits within these Confederate States owned by any alien enemy since the 21st of May, 1861, be sequestrated by the Confederate States of America, and shall be held for the full indemnity of any citizen and resident of these Confederate States, or other person aiding said Confederate States in the prosecution of the present war, and for which' he may suffer any loss or injury under the act of the United States to which this act is retaliatory, authorizing the seizure or confiscation of the property of citizens or residents of the Confederate States; and the same shall be seized and disposed of as provided for in this act' Even this act, emanating from a spirit of revenge and retaliation, gives no authority, in any part of it, to private individuals to seize for their own use and benefit any property belonging to a Union man; but expressly declares in the section just quoted, that 'the same shall be seized and disposed of as provided for in this act; and the provisions referred to are quite as stringent and precise as those in the United States 'Confiscation Act.' heretofore quoted.
"The reason why all governments are thus particular in pointing out the exact mode by which an enemy's property may be seized and appropriated, is plain enough, if one will but stop and consider it. Without such particularity of procedure, an army going into an enemy's country would soon become a rabble or mob—war would soon become rapine—officers would soon lose all control of their men, and from thenceforth plundering, spoliation, and pillage would become the order of the day. Yea, more, it would have the effect to set an army to warring among themselves, for each officer and each soldier would want the 'lion's share,' and it would only be a question of strength and endurance as to which should have it.
"In the matter of the piano now in question, what more right had the doctor to it than the major? what more right had the major to it than any one of the ten captains of the regiment? What more right had any captain to it than any one of the twenty lieutenants? or what more right had any lieutenant to it than any one of the one thousand privates? If it were a question of strength only, the strongest man in the regiment would finally gain the prize, even though he had to walk over the dead body of every other man in the regiment to gain it. The court thinks that even the doctor, though he had his hands full of scalpels, or the colonel, though a sword were suspended from every hair of his head, would shrink from a contest of this character!
"Again, it should be borne in mind that, though property may have been abandoned temporarily by its owner, he may afterwards repent of such abandonment and reclaim possession. Bouvier, in his admirable 'Institutes of American Law,' says: 'Things that have been abandoned by the owner belong to the first occupant; but if the owner should repent of having thrown away or abandoned the thing, he may retake it before any one else, and he regains his former title. To entitle the finder to such chattels, the former owner, must have wholly abandoned his title; if, as in the case of a wreck, he has parted with the possession on the ground of necessity, or with the evident intention of resuming it, the property has never been abandoned.'
"Again, he says: 'The right of acquiring personal chattels by finding, is limited to those found upon the surface of the earth. It does not extend to goods found derelict at sea, though abandoned without hope of recovery, nor to goods or money found hidden in the earth, known by the name of treasure trove. In England such goods belong to the crown; in this country the title to them perhaps has been seldom questioned in the hands of the finder, except by the real owner. No title by occupancy can in this country be gained in waifs, or stolen goods thrown away or scattered by a thief in his flight, in order to effect his escape. In England they belong to the King; here this prerogative has never been adopted by the government against the true owner, and never, perhaps, put in practice against the finder, though against him there would be a better reason for adopting it. Nor can any title be gained by occupancy of estrays, or cattle whose owner is unknown, or of wrecks, or such goods as after a shipwreck are cast upon the land by the sea, and left there, within some county, so as not to belong to the jurisdiction of the admiralty, but to the common law.'
"Kent in his Commentaries lays down the same principles, and both he and Bouvier cite a large number of decisions, both English and American cases, to prove the correctness of the doctrine. Indeed, the principle has been so universally adopted, that it would be difficult to find a court, in this or any other civilized country, that would not enforce it, in every case where the question of abandoned property was brought before them.
"This is the first attempt, so far as the court knows, to take a piano from any one of the many abandoned houses in this city and vicinity; but frequent attempts have been made to take smaller and less valuable articles; and, in every instance, where it has come to the knowledge of the court, the person making the attempt has been required to return the article to the place where found. Nor can the court make any exception to the rule in this case. If, from the law and reasons stated by the court, the doctor and the colonel have become satisfied that they committed an error in the taking of the piano, and will, without delay, return it to the exact place where they found it, and promise to protect it from removal or damage hereafter, or so long, at least, as they continue to occupy the house for their headquarters, then no further steps need be taken in this case. If they are not so convinced, and decline to make any such promise, then the duty of the court will be to order them both in arrest, and that the piano be taken in charge by the Provost-Marshal, to await the further orders of the court."
The doctor immediately arose and said he "desired to extend his most hearty thanks to the court for the many courtesies which had been extended towards him, and to add, that the reasonings of the court had entirely satisfied him of his error; that he would, without one moment of unnecessary delay, have the piano returned to the house from whence taken; and that from thenceforth, and so long as he remained in the army, he would use whatever influence he possessed towards preventing the taking of abandoned property for individual purposes."
The colonel then arose and said he was "reminded of the old maxim, that it 'took a bolder man to confess an error than to face a cannon's mouth,' and while he laid no claim to boldness, he did claim to be able to do what he believed to be right; and since he had heard the law and reason of the case, as laid down by the court, he was free to confess that he had all along been in error, and that the court was in the right." He had, he said, such "an utter detestation for disloyalty, that nothing, he thought, could be too great punishment for a rebel, and he had regarded the taking of their property—no matter when, how, or by whom—as a part of their just punishment; but the reasoning of the court had made it entirely clear to his mind that, while this could be properly done by the government for the general good, it could not be properly done by individuals for their private gain." He, like the doctor, would "turn a short corner on this subject, and from thenceforth use whatever influence he possessed to discourage the taking of abandoned or captured property for private uses. So long as he retained his present headquarters, he would see that nothing was removed from the premises, and, so far as it was possible, he would have returned whatever had been taken away."
Thus ended, pleasantly and satisfactorily, what, at one time, threatened to be a very ugly case. Had the doctor and colonel chosen to disregard the request of the court, and insisted upon their right to send the piano to the doctor's home, it would have brought on a direct conflict of authority, necessitated arrests, caused appeals to higher authorities, and created confusion generally; but their respect for the court was such as to overcome all these unhappy consequences. On the afternoon of the same day on which the case was heard, the colonel sent a team to the Provost-Marshal's office; the Marshal went with the driver to the office of the shipping-merchant and directed the delivery of the piano; and before sundown of that day, the piano stood in the exact spot from which it had been taken a few days before.
The triumph of reason over error and prejudice was complete. From thenceforth the long-mooted and often discussed question, as to how disloyalty affected the rights of property, was settled in and about Alexandria. There was no further attempt to appropriate abandoned property for private uses.