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Ex parte City Bank of New Orleans/Concurrence Catron

Mr. Justice CATRON.

By the 14th section of the Judiciary Act this court has power to issue writs proper and necessary for the exercise of its jurisdiction; having no jurisdiction in any given case, it can issue no writ: that it has none to revise the proceedings of a bankrupt court is our unanimous opinion. So far we adjudge; and in this I concur. For further views why the prohibition cannot issue, I refer to the conclusion of the principal opinion. But a majority of my brethren see proper to go further, and express their views at large on the jurisdiction of the bankrupt court. In this course I cannot concur; perhaps it is the result of timidity growing out of long established judicial habits in courts of error elsewhere, never to hazard an opinion where no case was before the court, and when that opinion might be justly arraigned as extra-judicial, and a mere dictum by courts and lawyers; be partly disregarded while I was living, and almost certainly be denounced as undue assumption when I was no more. A measure of disregard awarded with an unsparing hand, here and elsewhere, to the dicta of state judges under similar circumstances: and it is due to the occasion and to myself to say, that I have no doubt the dicta of this court will only be treated with becoming respect before the court itself, so long as some of the judges who concurred in them are present on the bench; and afterwards be openly rejected as no authority-as they are not.

The case standing in the District Court of Louisiana will test it as well as another. The application for a prohibition was brought before us at last term; then the late Mr. Justice Baldwin was here, and one other of the judges now present was then absent; had the matter not then been laid over on advisement, and a decision been had adverse to our jurisdiction to award the writ; and an opinion been expressed by the majority of the judges then present, against the legality of the proceeding in the bankrupt court, declaring it void, and that in the state court valid; would the bankrupt court be bound to conform to such opinion; would it overrule the instructions given in the particular case by the Circuit Court on the questions adjourned, dismiss the petition of Christy, the assignee, and let the decree and sale foreclosing the mortgage made by the state court stand? Will the bankrupt court of Pennsylvania be bound, either judicially or in comity, by the opinion now given by a majority of the judges present, to overthrow that of Mr. Justice Baldwin in the case hereto appended; or is it bound to conform? Are the bankrupt courts in all the districts that have held the state proceedings on liens to be valid, and not subject to their supervision, now bound to suppress such proceedings on the suggestion of assignees that they were erroneous or inconvenient, regardless of proof, as was done in Louisiana, and thereby overhaul cases in great numbers supposed to be settled? Certainly not. This court has no power over the bankrupt courts, more than they have over this court; the bankrupt law has made them altogether independent, and their decrees as binding as ours, and as final. We have as little power to control them as the state courts have; they may concur with the reasoning of either, or neither, at discretion. I therefore think we should refrain from expressing any extra-judicial opinion on the present occasion; we did so in Nelson v. Carland, 1 How., 265, a case involving the constitutionality of the bankrupt law, and I then supposed most properly, by the majority of the court, who thought we had no jurisdiction: a more imposing application, requiring an opinion, could not have been presented, as twelve hundred cases depended on the decision of the District Court of Missouri, which was opposed to the constitutionality of the law; and to revise it the case was brought here. So in Dorr's application, at the present term, for a writ of habeas corpus, the same course was pursued. That application and this are not distinguishable in principle: in neither had this court power to bring a case for judgment into it; there, and here, we held nothing was before us, or could be brought before us. With this course I would now content myself, was it not that by acquiescing in silence with the opinion of my brethren I might be supposed to have agreed with them in the course pursued; and also in the views expressed in the affirmance of the jurisdiction exercised under the bankrupt law by the Circuit Court of Eastern Louisiana; to both of which my opinion is adverse, and that most decidedly. The case presented to that court was this:-- In 1839, Walden gave to the City Bank a mortgage to secure the payment of $200,000 loaned him, on a plantation and town lots.

In 1840, he instituted a suit in the District Court of the state, in New Orleans, to set the mortgage aside as void; a trial was had, and the court adjudged the mortgage valid; from this Walden appealed to the Supreme Court of Louisiana, and that court affirmed the judgment.

The bank then proceeded in the District Court of the state to foreclose the mortgage, and on the 17th of May, 1842, an order of seizure and sale was made; and an actual seizure of the property was executed on the 19th May. The sale took place on the 27th of June.

The property was sold by lots, after appraisement, in conformity to the laws of Louisiana, and the bank became the purchaser at the price of $160,000.

That the sale was made in regular and due form, according to the modes of proceeding in the state courts, cannot be controverted.

On the 18th of June, 1842, Walden filed his petition for the benefit of the bankrupt law; and on the 18th of July was declared a bankrupt, and an assignee appointed. The $200,000 was on Walden's creditor list, but the bank refused to prove its debt, and relied on the decree of foreclosure, and the force of its lien, by the mortgage.

Christy, the assignee, filed his petition in the bankrupt court, and as part of the proceeding in bankruptcy, to have the sale declared void: 1. Because it was made after Walden applied for the benefit of the bankrupt law. 2. Because the sale had been unfairly conducted. 3. Because the proceeding in the state court was erroneous. 4. Because the debt was affected with usury, and therefore the mortgage void originally; and should be so decreed by the bankrupt court.

The bank appeared, and pleaded to the jurisdiction of the bankrupt court; and relied on the proceedings of the state court as valid by answer. Exceptions were taken to this plea and answer, which were adjourned to the Circuit Court; there it was adjudged, and the District Court instructed:

1. That it had full and ample jurisdiction to try all the questions set forth in the petition of the assignee; and to try, adjudge, and determine the same between the parties.

2. That the seizure and sale of the state court were void; and that the District Court of the United States do declare it void.

3. That the District Court has full power and authority to try and determine the validity of the mortgage; and if proved on the trial void, to declare it so, and to make a decree ordering the property to be sold for the benefit of the creditors generally; but if found valid, the bank to have the benefit of its lien.

This decree pronounced void the judgment of the Supreme Court of Louisiana, affirming that of the inferior court declaring the mortgage valid, and not affected with usury; which was conclusive between Walden and the bank before the bankrupt law existed. 2. It declared void the decree and order of seizure made before Walden applied for the benefit of the act-and it declared void the sale: In short, it annulled all the judgments of the state courts, and assumed to extinguish the title acquired under them; and has extinguished in form and fact, if the views of a majority of my present brethren be correct, a title indisputable according to the laws of Louisiana standing alone; this is manifest from the slightest examination of the fact, and laws applicable to them. On the 18th of July the decree declaring Walden a bankrupt was passed; up to this date he might or might not be declared a bankrupt, either at his own instance, or that of the court; therefore he was a proper party before the state court until that time; afterwards he was represented by his assignee; his property was under execution when he was declared a bankrupt; if he had then died, still the duty of the officer would have been to sell; the execution having commenced, a natural or civil death could not defeat it, as the property was in the custody of the law.

If it be true that this title is void, it follows every other is void where a sale has taken place after the defendant to the execution (issued by a state court) had applied for the benefit of the bankrupt law; and this whether the execution was awarded in the form usual to courts of law, or by decree in a court of chancery, ordering a seizure and sale by force of the decree. Every sheriff, or commissioner in chancery, executing such writ or decree, must have been a trespasser; and all persons taking under such sales deluded purchasers. In the eighth circuit there are very many such cases beyond doubt; they are founded on my opinion acting with the district judges, who fully concurred with me, that such sales were lawful, and the titles acquired under them valid. In two other circuits at least, similar views have been entertained, and no doubt similar consequences have followed. It is therefore due to interests so extensive, affecting so many titles, that they should not be overthrown until a case calling for the authoritative adjudication of this court is presented involving them, and therefore these brief views have been expressed; not on the jurisdiction of the bankrupt courts generally; but on the precise facts presented as the grounds on which the prohibition was demanded.

On the force of the lien, and the remedy to enforce it, as a right excepted from the bankrupt law, I have said nothing, because my late brother Baldwin was called on to follow the decision given in Louisiana and refused. As he decided under the responsibility of passing on men's rights, and from whose judgment there was no appeal, his opinion is judicial, and authoritative throughout his late circuit, whereas mine on the present occasion would be extra-judicial, and therefore I append his instead of any I may entertain individually.

In the aforegoing opinion of Mr. Justice CATRON, Mr. Justice DANIEL concurs.


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Diego Velasquez the conquered isle of Cuba became one of the most prosperous of Spanish colonies, and the young adventurer, Hernando Cortés, shared at first in the general good fortune. Wild and wayward, he soon, however, lost the Governor's favour. Velasquez was greatly interested in a family named Xuarez, and Cortés had promised to marry one of the daughters, the beautiful Catalina. The Governor's attempt to force the inconstant youth to hold to his word led to a most violent quarrel, and Cortés threw in his lot with some "malcontents" who were hatching a plot against Velasquez. Secret meetings led to a timely arrest, and the intriguer soon found himself in irons under the hatches of a ship which was to carry him to the court of justice in Hispaniola. It was nighttime, and Cortés, abetted surely by his guards, actually managed to loosen his fetters, gain the deck, and escape in a small boat ere the ship sailed. Once on shore he sought sanctuary in a church. Taught by grim experience, he hastened to make his peace with the Governor, and consented to an early marriage with the fair Catalina. The story 28

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TALL and of commanding presence, with lofty brow and dark piercing eyes, the new captain-general seemed in person a man born to rule. A fine horse-man and skilful fencer, he was strong enough to endure great hardship, and in battle he knew no fear. Keen were his wits as his own Castilian sword, and his winning tongue served him well with the turbulent spirit of his followers. To the banner of such a leader rallied all the men in Cuba who would fain carve their way to fortune. Cortés clearly saw that self-interest alone was their incentive, and so he kept ever before them the golden prize. Such men, who knew no duty to king or country, could be bound only by personal allegiance, and this their leader, by every art, sought to inspire.

Ships, provisions, arms, all were needed. Something indeed did Velasquez contribute, but for the most part Cortés had to draw upon his friends, while every peseta of his own was sunk in the venture.

Day by day grew the popularity of the young commander, and in the rich dress and lordly bearing of his subordinate the jealous eyes of the Governor 36

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a glad farewell to Cozumel, the island of delays, the adventurers doubled Cape Catoche and turned westward to the great gulf beyond which lay the glittering goal of their high hopes. They deemed it best to follow the coast-line, and soon reached an opening recognised by Grijalva's men as the river Tabasco, where they had met with so friendly a reception.

Anxious to visit the town of Tabasco, Cortés left the ships at anchor and rowed up the river with a small force. Gloomy and forbidding seemed this stream, for on either hand dense growth of mangrove trees encroached on the water, making a thick screen beyond which the Spaniards could not see. But ever and anon the glint of weapons amongst the scrub raised the fear that the natives did not mean this time to trade in their former friendly way. It was growing dusk, and the sight of a group of menacing warriors barring the way induced Cortés to encamp on an island in midstream.

The rising mists of dawn revealed on bank and water a warlike array. It was ever the policy of 47

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Tendile with his stately retinue had left the Spanish camp, captain and priest, soldier and sailor, gave vent to loud-voiced wonder. Where had this dark-skinned race learned to weave such exquisite fabrics? Whence came their skill in metal-working? Whence their proud dignity of bearing? Where above all had they acquired the high art of government? Well organised indeed must be this Indian empire, when the monarch from his capital beyond the mountains could rule with so sure a hand his most distant provinces.

Well might the Spaniards marvel. And, as they came to know more fully, in their strenuous fight for gold, this rich civilisation with its mixture of savage barbarism, their wonder daily grew. But no mission had the rude conquerors to peer into the origin and history of the mysterious people they purposed to despoil, and in the fires of their fierce bigotry was doomed to perish many a record which might have revealed to us the secret of the past.

In the far away bygone ages did these unknown tribes, crossing vast tracts of land and water, come 57

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Washington as a Camp/Camp Cameron

As we had the first choice, we got, on the whole, the best site for a camp. We occupy the villa and farm of Dr. Stone, two miles due north of Willard’s Hotel. I assume that hotel as a peculiarly American point of departure, and also because it is the hub of Washington, — the centre of an eccentric, having the White House at the end of its shorter, and the Capitol at the end of its longer radius, — moral, so they say, as well as geometrical.
 * Camp Cameron.

Sundry dignitaries, Presidents and what not, have lived here in times gone by. Whoever chose the site ought to be kindly remembered for his good taste. The house stands upon the pretty terrace commanding the plain of Washington. From the upper windows we can see the Potomac opening southward like a lake, and between us and the water ambitious Washington stretching itself along and along, like the shackly files of an army of recruits.

Oaks love the soil of this terrace. There are some noble ones on the undulations before the house. It may be permitted even for one who is supposed to think of nothing but powder and ball to notice one of these grand trees. Let the ivy-covered stem of the Big Oak of Camp Cameron take its place in literature! And now enough of scenery. The landscape will stay, but the troops will not. There are trees and slopes of greensward elsewhere, and shrubbery begins to blossom in these bright days of May before a thousand pretty homes. The tents and the tent-life are more interesting for the moment than objects which cannot decamp.

The old villa serves us for head-quarters. It is a respectable place, not without its pretensions. Four granite pillars, as true grit as if the two Presidents Adams had lugged them on their shoulders all the way from Quincy, Mass., make a carriage-porch. Here is the Colonel in the big west parlor, the Quartermaster and Commissary in the rooms with sliding-doors on the east, the Hospital upstairs, and so on. Other rooms, numerous as the cells in a monastery, serve as quarters for the Engineer Company. These dens are not monastic in aspect. The house is, of course, a Certosa, so far as the gentler sex are concerned; but no anchorites dwell here at present. If the Seventh disdained everything but soldiers’ fare, — which it does not, — common civility would require that it should do violence to its disinclination for comfort and luxury, and consume the stores sent down by ardent patriots in New York. The cellars of the villa overflow with edibles, and in the greenhouse is a most appetizing array of barrels, boxes, cans, and bottles, shipped here that our Sybarites might not sigh for the flesh-pots of home. Such trash may do very well to amuse the palate in these times of half peace, half hostility; but when

 * “war, which for a space does fail,
 * Shall doubly thundering swell the gale,”

then every soldier should drop gracefully to the simple ration, and cease to dabble with frying-pans. Cooks to their aprons, and soldiers to their guns!

Our tents are pitched on a level clover-field sloping to the front for our parade-ground. We use the old wall tent without a fly. It is necessary to live in one of these awhile, to know the vast superiority of the Sibley pattern. Sibley’s tent is a wrinkle taken from savage life. It is the Sioux buffalo-skin lodge, or Tepee, improved, — a cone truncated at the top and fitted with a movable apex for ventilation. A single tent-pole, supported upon a hinged tripod of iron, sustains the structure. It is compacter, more commodious, healthier, and handsomer than the ancient models. None other should be used in permanent encampments. For marching troops, the French Tente d’abri is a capital shelter.

Still our fellows manage to be at home as they are. Some of our model tents are types of the best style of temporary cottages. Young house-keepers of limited incomes would do well to visit and take heed. A whole elysium of household comfort can be had out of a teapot, — tin; a brace of cups, — tin; a brace of plates, — tin; and a frying-pan.

In these days of war everybody can see a camp. Every one who stays at home has a brother or a son or a lover quartered in one of the myriad tents that have blossomed with the daffodil-season all over our green fields of the North. I need not, then, describe our encampment in detail, — its guard-tent in advance, — its guns in battery, — its flag-staff, — its companies quartered in streets with droll and fanciful names, — its officers’ tents in the rear, at right angles to the lines of company tents, — its kitchens, armed with Captain Vielé’s capital army cooking-stoves, — its big marquees, “The White House” and “Fort Pickens,” for the lodging and messing of the new artillery company, — its barbers’ shops, — its offices. The same, more or less well arranged, can be seen in all the rendezvous where the armies are now assembling. Instead of such description, then, let me give the log of a single day at our camp.

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SAD day it was for all Anahuac when in 1470 the great Nezahualcoyotl died, for in the reign of his successor, a sage, but no warrior, the Tezcucans fell more and more under the influence of the fierce Aztecs across the lake. Montezuma I., a bold, ambitious monarch, now ruled in Mexico. A war-like prince he was, and victory always crowned his arms, until the terror of his name spread far and wide. He was soon recognised as head of the triple alliance, and arrogantly adopted the proud title of Emperor, while Nezahualpilli, the king of Tezcuco, became more like a great vassal than an independent monarch.

Just seventeen years before the coming of the Spaniards the terrible Montezuma died, and the four chief counsellors of the empire met, according to Aztec custom, to choose his successor from the members of the royal family. Gruesome were the titles of these four electors. The first was called the Prince of the Deathful Lance, the second the Divider of Men, the third the Shedder of Blood, and the fourth the Lord of the Dark House. Their 69

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HE coming of Quetzalcoatl, so longed for by the people, was awaited by their emperor Montezuma with dread unspeakable. The very thought of losing rank and power, though to a god, made the days of the mighty monarch a nightmare, and the courtiers whispered as they watched his sombre face—"He is well named Montezuma, the man of gloom." By ceaseless sacrifice he strove to propitiate the gods and to avert his doom, but portent after portent seemed to presage coming evil.

On a calm and windless day the great salt lake encircling Tenochtitlan was troubled, and its waters raging in wild unrest o'er wall and causeway swept down the very streets of the city, while the emperor trembled in his palace. On one of the towers of the great teocalli descended a ball of fire which no man could extinguish until the turret crashed in ruin. At night a comet streamed across the sky and Montezuma grew sick with foreboding fear. Most terrible portent of all, there appeared in the east on several nights in succession "a flood of fire thickly powdered with stars." And while this baleful light 82


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N their return to the Villa Rica the Spaniards found a Spanish ship at anchor in the harbour. The captain, a roving adventurer anxious to join the Mexican expedition, had sailed in search of Cortés. He had but twelve men and two horses on board, but the general, who had lost his own dark chestnut in the first camp, gave them warm welcome. Less welcome was the news that Velasquez was leaving no stone unturned to discredit his rebellious lieutenant in the eyes of the Spanish court.

Strong and prompt was the action of Cortés. Little as he could spare the men, he resolved to send a ship to Spain with all the treasure he could amass and a letter to the emperor Charles V. himself, justifying his actions, describing his discoveries, his battles, and the glorious possibilities of the great empire he was about to conquer. To show their devotion to their commander the newly elected magistrates and citizen soldiers of Villa Rica wrote also to his imperial majesty telling of the foundation of their colony and begging him to confirm Cortés in his authority. 96


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Nugent v. Boyd/Dissent Catron

Mr. Justice CATRON.

I think the adjudication in this case is in conflict with that made in the Circuit Court at New Orleans in Christy against the City Bank; and in support of which, a majority of my brethren saw proper to express their views at a previous day during this term, in the unsuccessful application of the bank for a prohibition; but that the cases are alike-and one cannot be maintained, and the other overthrown.

In that case the petition of the assignee set forth the entire legal grounds, why the District Court should annul the judgments in the state court, and pronounce the sale void.

1. That the property sold was given in by Walden, the bankrupt, as part of his effects.

2. That the bank had notice thereof, before the sale by the sheriff.

3. That the sale was void, being contrary to the Bankrupt Law, which operated to stay all further proceeding so soon as Walden's petition was filed, and was a bar to any further prosecution of the suit until an assignee should be appointed. That the sale with notice was a fraud upon the act of Congress, and the other creditors of Walden, by reason of the law, because the bank was endeavoring to obtain an illegal preference.

4. That at the sale the property was struck off in blocks, although consisting of different buildings, at two-thirds of its value: 'All of which actings and doings are prohibited by law, and render said sale null and void.'

5. That the sale was in other respects irregular, the legal formalities not having been observed.

6. That the mortgage was void for usury, because in effecting the loan the bank gave Walden bonds on the Second Municipality instead of money, and they were then at a discount at from twenty to twenty-five per cent.

To these allegations the bank answered:--

1. By plea that the District Court was not by law empowered to decide on the matters charged.

2. That all the matters and things set forth had already been decided by a court of competent jurisdiction-referring to the adjudications by name.

3. The defendant answers, and avers, that the mortgage was legal and valid, and given upon a full and adequate consideration.

4. That the order of sale was duly granted, and the writ thereon properly issued: and that the property described in the petition was lawfully seized, and after a compliance with all the legal formalities, was sold, and adjudicated to the defendants: that the price was fully paid by giving a credit-and that the property is held under an indefeasible title.

5. All the allegations in the petition not admitted, are denied, and a trial demanded of them.

This answer was excepted to as containing no legal grounds of defence; the question was adjourned, under the 6th section of the Bankrupt Law, to the Circuit Court to be there heard and determined. It stood in that court as on bill and answer: the answer was taken of course as true in all its parts-the only question being whether any legal ground of defence was furnished by the plea, supported by an answer, denying the alleged unfairness of the sale presenting the same question in substance as did the case of Harpending v. The Dutch Church, in 16 Pet. By setting the case down on plea and answers, the proceedings in the supreme and inferior state courts were admitted of necessity to have been properly and fairly conducted; and the sale legally and fairly made. This was the undoubted aspect of the case as presented to and decided by the Circuit Court. Its decree, in the form of instructions to the bankrupt court, is, first-That the latter had full and ample powers to try all the questions presented in the assignee's petition: 2dly. That the sale made under the seizure by order of the state court was void; and that the bankrupt court should declare it so: 3d. That the bankrupt court had full power to re-try the validity of the mortgage and ascertain whether it was void for usury or otherwise: and this on the ground exclusively that the proceedings in the state courts were annulled by force of the bankrupt law, and the fact of Walden applying for its benefit.

Taking the petition and answer together, and a case existed in all its features like the present, on the title by execution; each being a fair and regular proceeding in the state court. One is suppressed-and the other maintained. And on what ground does the district judge assume to act contrary to the former adjudication? Because it was equitable and for the best interests of the estate to be distributed, in his judgment. The obvious meaning of which is, that he had power to overthrow the title or not, at his discretion; and that such discretion was the law of the case and the tenure of the title, according to the true intention of the Bankrupt Act. On this assumption are the two cases attempted to be reconciled; and on no other can they avoid direct conflict, even in appearance. In reality, the one title is as good as the other. The tendency of such a doctrine is too threatening to titles to be silently acquiesced in. Did Congress intend that the force and effect of judgments and executions in a state court, should depend on the sole discretion of a judge sitting in bankruptcy? Was it intended to discard the axiom, that unrestrained discretion in those that govern, is inconsistent with the rights of those that are governed, be they of property or person? It is very difficult to suppose so; and as difficult to accommodate the construction of the act to such a supposition. It is declared, 'that it shall not be construed to annul, destroy, or impair, any liens or mortgages, on property real or personal, which may be valid by the laws of the states respectively.'

Here two liens are combined; one by mortgage, the other by execution levied. In Christy v. The City Bank, as already stated, that by mortgage was recognized as a right protected by the act, but to be administered in the bankrupt court only; that by execution was pronounced void. This decision the court below was asked to follow out, in the case before us, and refused.

By the execution levied, the lien 'was valid by the laws of the state'-in the words of the saving clause; the remedy by seizure created the right; to annul, or to stay the execution, impaired a right, excepted out of the act. Since the opinions were delivered in the ex parte application of the City Bank, we have in effect so held at the present term, in Waller v. Best.

In making exceptions in favor of liens created by judgment and execution, Congress was governed by practical considerations. The states usually were large, the bankrupt courts in many of them far off from the creditors, the debts owing by the bankrupt small in amount to a great extent; for these recoveries would be had in the inferior courts and before magistrates; the property would be seized by execution, and he the debtor be driven into bankruptcy; this step might be taken secretly. The officer having possession of the property had to dispose of it according to the commands of the writ, and make return to the state tribunal; a return that the debtor had applied for the benefit of the bankrupt law would not be a legal return, as I have held, and always supposed; and that a decree declaring the party a bankrupt, would not alter the case; as in either, the lien would be not only impaired, but destroyed where the levy alone gave it, as is the case in many instances. To drive the small creditor into the bankrupt court to establish his demand and effectuate his lien, would often have been worth more in trouble and expense than the debt, and in the mean time the property, being abandoned by the officer, and not taken possession of by the assignee, would in many instances perish. These facts were too palpable for Congress to overlook. To protect such liens, I take it the exception was a compromise between the opponents and friends of the bill; the one side supporting rights secured by the state laws, and the other seeking to adopt a different rule under the Constitution of the United States, in regard to the relation of debtor and creditor.

In many cases the bankrupt might owe debts in other states than that where he would be declared bankrupt; then other difficulties would arise on executions being levied in the foreign jurisdiction, to which the powers of the bankrupt court could not extend. In all the cases enumerated the assignee had given to him the same powers the bankrupt previously had, to sue and defend, and no material difficulty could arise (or has arisen) in adjusting the claims in the state courts, to which the assignee was bound to apply.

That a mortgage can be foreclosed in the bankrupt court, and the lien given by it be preserved there, I have never doubted, if the jurisdiction of a state court had not attached, and was not ousted by the proceedings in bankruptcy.

For the foregoing reasons, I think the court of Louisiana was mistaken when it assumed to have power to suppress the sale made by the sheriff, or to let it stand, at its discretion.

The decree is deemed entirely proper; nor would the reasons for it have been noticed had not my brethren adopted them to the extent above; and with which adoption I cannot concur.

title: Nugent v. Boyd/Dissent Catron


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Washington as a Camp/Journal of a Day at Camp Cameron, by Private W., Company I

Boom!
 * Journal of a Day at Camp Cameron, by Private W., Company I.

I would rather not believe it; but it is — yes, it is — the morning gun, uttering its surly “Hullo!” to sunrise.

Yes, — and, to confirm my suspicions, here rattle in the drums and pipe in the fifes, wooing us to get up, get up, with music too peremptory to be harmonious.

I rise up sur mon séant and glance about me. I, Private W., chance, by reason of sundry chances, to be a member of a company recently largely recruited and bestowed all together in a big marquee. As I lift myself up, I see others lift themselves up on those straw bags we kindly call our mattresses. The tallest man of the regiment, Sergeant K., is on one side of me. On the other side I am separated from two of the fattest men of the regiment by Sergeant M., another excellent fellow, prime cook and prime forager.

We are all presently on our pins, — K. on those lengthy continuations of his, and the two stout gentlemen on their stout supporters. The deep sleepers are pulled up from those abysses of slumber where they had been choking, gurgling, strangling, death-rattling all night. There is for a moment a sound of legs rushing into pantaloons and arms plunging into jackets.

Then, as the drums and fifes whine and clatter their last notes, at the flap of our tent appears our orderly, and fierce in the morning sunshine gleams his moustache, — one month’s growth this blessed day. “Fall in, for roll-call!” he cries, in a ringing voice. The orderly can speak sharp, if need be.

We obey. Not “Walk in!” “March in!” “Stand in!” is the order; but “Fall in!” as sleepy men must. Then the orderly calls off our hundred. There are several boyish voices which reply, several comic voices, a few mean voices, and some so earnest and manly and alert that one says to himself, “Those are the men for me, when work is to be done!” I read the character of my comrades every morning in each fellow’s monosyllable “Here!”

When the orderly is satisfied that not one of us has run away and accepted a Colonelcy from the Confederate States since last roll-call, he notifies those unfortunates who are to be on guard for the next twenty-four hours of the honor and responsibility placed upon their shoulders. Next he tells us what are to be the drills of the day. Then, “Right face! Dismissed! Break ranks! March!”

With ardor we instantly seize tin basins, soap, and towels, and invade a lovely oak-grove at the rear and left of our camp. Here is a delicious spring into which we have fitted a pump. The sylvan scene becomes peopled with “National Guards Washing,” — a scene meriting the notice of Art as much as any “Diana and her Nymphs.” But we have no Poussin to paint us in the dewy sunlit grove. Few of us, indeed, know how picturesque we are at all times and seasons.

After this beau idéal of a morning toilet comes the ante-prandial drill. Lieutenant W. arrives, and gives us a little appetizing exercise in “Carry arms!” “Support arms!” “By the right flank, march!” “Double quick!

Breakfast follows. My company messes somewhat helter-skelter in a big tent. We have very tolerable rations. Sometimes luxuries appear of potted meats and hermetical vegetables, sent us by the fond New-Yorkers. Each little knot of fellows, too, cooks something savory. Our table-furniture is not elegant, our plates are tin, there is no silver in our forks; but à la guerre, comme à la guerre. Let the scrubs growl! Lucky fellows, if they suffer no worse hardships than this!

By and by, after breakfast, come company drills, bayonet practice, battalion drills, and the heavy work of the day. Our handsome Colonel, on a nice black nag, manœuvres his thousand men of the line-companies on the parade for two or three hours. Two thousand legs step off accurately together. Two thousand pipe-clayed cross-belts — whitened with infinite pains and waste of time, and offering a most inviting mark to a foe — restrain the beating bosoms of a thousand braves, as they — the braves, not the belts — go through the most intricate evolutions unerringly. Watching these battalion movements, Private W., perhaps, goes off and inscribes in his journal, — “Any clever, prompt man, with a mechanical turn, an eye for distance, a notion of time, and a voice of command, can be a tactician. It is pure pedantry to claim that the manœuvring of troops is difficult: it is not difficult, if the troops are quick and steady. But to be a general, with patience and purpose and initiative, — ah!” thinks Private W., “for that you must have the man of genius; and in this war he already begins to appear out of Massachusetts and elsewhere.”

Private W. avows without fear that about noon, at Camp Cameron, he takes a hearty dinner, and with satisfaction. Private W. has had his feasts in cot and chateau in Old World and New. It is the conviction of said private that nowhere and nowhen has he expected his ration with more interest, and remembered it with more affection, than here.

In the middle hours of the day, it is in order to get a pass to go to Washington, or to visit some of the camps, which now, in the middle of May, begin to form a cordon around the city. Some of these I may criticise before the end of this paper. Our capital seems arranged by nature to be protected by fortified camps on the circuit of its hills. It may be made almost a Verona, if need be. Our brother regiments have posts nearly as charming as our own, in these fair groves and on these fair slopes on either side of us.

In the afternoon comes target practice, skirmishing-drill, more company- or recruit-drill, and, at half past five, our evening parade. Let me not forget tent-inspection, at four, by the officer of the day, when our band plays deliciously.

At evening parade all Washington appears. A regiment of ladies, rather indisposed to beauty, observe us. Sometimes the Dons arrive, — Secretaries of State, of War, of Navy, — or military Dons, bestriding prancing steeds, but bestriding them as if “’t was not their habit often of an afternoon.” All which, — the bad teeth, pallid skins, and rustic toilets of the fair, and the very moderate horsemanship of the brave, — privates, standing at ease in the ranks, take note of, not cynically, but as men of the world.

Wondrous gymnasts are some of the Seventh, and after evening parade they often give exhibitions of their prowess to circles of admirers. Muscle has not gone out, nor nerve, nor activity, if these athletes are to be taken as the types or even as the leaders of the young city-bred men of our time. All the feats of strength and grace of the gymnasiums are to be seen here, and show to double advantage in the open air.

The comes sweet evening. The moon rises. It seems always full moon at Camp Cameron. Every tent becomes a little illuminated pyramid. Cooking-fires burn bright along the alleys. The boys lark, sing, shout, do all those merry things that make the entertainment of volunteer service. The gentle moon looks on, mild and amused, the fairest lady of all that visit us.

At last, when the songs have been sung and the hundred rumors of the day discussed, at ten the intrusive drums and scolding fifes get together and stir up a concert, always premature, called tattoo. The Seventh Regiment begins to peel for bed: at all events, Private W. does; for said W. takes, when he can, precious good care of his cuticle, and never yields to the lazy and unwholesome habit of soldiers, — sleeping in the clothes. At taps — half past ten — out go the lights. If they do not, presently comes the sentry’s peremptory command to put them out. Then, and until the dawn of another day, a cordon of snorers inside of a cordon of sentries surrounds our national capital. The outer cordon sounds its “All’s well”; and the inner cordon, slumbering, echoes it.

And that is the history of any day at Camp Cameron. It is monotonous, it is not monotonous, it is laborious, it is lazy, it is a bore, it is a lark, it is half war, half peace, and totally attractive, and not to be dispensed with from one’s experience in the nineteenth century.


text:
Lane v. Vick/Dissent McKinley

Mr Justice McKINLEY.

In this case I differ in opinion with the majority of the court, not only on the construction of the will, but upon a question of much greater importance, and that is, whether the construction given to this will by the Supreme Court of Mississippi is not binding on this court? I will proceed to the examination of these questions in the order in which I have stated them; and to bring into our view all the provisions of the will, which dispose of the real estate of the testator, I will state them in the order in which they stand in the will, unconnected with other provisions not necessary to aid in construing those relating to the real estate.

After the introductory part of the will, and providing for his funeral, the testator proceeds to dispose of his estate thus:

'Secondly, I will and bequeath to my beloved wife, Elizabeth Vick, one equal share of all my personal estate, as is to be divided between her and all my children, as her own right, and at her own disposal during her natural life; and also for the term of her life on earth, the tract of land at the Open Woods, on which I now reside, or the tracts near the river, as she may choose; reserving two hundred acres, however, on the upper part of the uppermost tract to be laid off in town lots, at the discretion of my executrix and executors.

'Thirdly, I will and dispose to each of my daughters, one equal proportion with my sons and wife, of all my personal estate, as they come of age or marry; and to my sons one equal part of said personal estate, as they come of age, together with all of my lands; all of which lands I wish to be appraised, valued, and divided, when my son Westley arrives at the age of twenty-one years; the said Westley having one part, and my son William having the other part of the tracts unclaimed by my wife, Elizabeth; and I bequeath to my son Newit, at the death of my wife, that tract which she may prefer to occupy. I wish it to be distinctly understood, that that part of my estate which my son Hartwell has received, shall be valued, considered as his, and as part of his portion of my estate.

'Fourthly, It is, however, furthermore my wish that the aforesaid Elizabeth should keep together the whole of my property, both real and personal, reserving the provisions before made for the raising, educating, and benefit of the before-mentioned children. I wish my executors, furthermore, to remember that the town lots now laid off, and hereafter to be laid off, on the aforementioned two hundred acres of land, should be sold to pay my just debts, or other engagements, in preference to any other of my property, for the use and benefit of all my heirs.'

An inquiry which lies at the threshold of this investigation, is, what was the meaning and intention of the testator in reserving the two hundred acres of land, 'to be laid off in town lots?'

Did he intend this tract, of two hundred acres, should not pass by his will, under the general description of 'all my lands?' Or did he mean simply that it should be reserved from the use of his wife, in the event she selected the river tracts in preference to the Open Woods tract? Or did he intend, as the majority of the court have decided, that it should be reserved to be sold by his executors, for the purposes of paying his just debts and other engagements, 'and' to increase the legacies of his daughters? To the last construction there is a very material objection. The power of the executors to sell the lots laid off, and to be laid off, on the two hundred acres, is not absolute, but contingent. The testator did not direct that any of his property, real or personal, should be sold for the purpose of paying his debts, or for any other purpose. But his meaning and intention, as manifested by the language employed, is, that if, in the administration of his estate, it should become necessary to sell any portion of it for the payment of his debts or other engagements, he wished his executors to remember that the town lots then laid off, and thereafter to be laid off, should be sold 'in preference to any other of (his) property.'

If the debts and other engagements could have been satisfied without a sale of the lots, the executors would have had no power to sell them for any purpose whatever; and the words 'for the use and benefit of all my heirs,' would have been inoperative for the purpose to which they have been applied; and the bounty, which it is supposed by the court a father's heart could not withhold from his daughters, would have been entirely defeated; and in that event, the interpolation of the word 'and,' which has been supplied by the court, could not have conferred on the daughters the lots, nor the proceeds of the sale of them. But conceding the power to sell the lots for the payment of the testator's debts, do the words 'for the use and benefit of all my heirs,' give any authority to the executors to sell the remainder of the lots, after paying the debts, or any right to the heirs to receive the proceeds of such sale?

The court seem to admit, by their reasoning, that these words alone give no right to the heirs to claim the proceeds, nor power to the executors to sell the remainder of the lots, and, therefore, they have supplied the word 'and,' to unite the power granted to sell for the payment of debts, with the words 'for the use and benefit of all my heirs,' which, they say, completes the right to receive the proceeds. If the court have the right to alter the will, and then give construction to it, they make it mean what they please. But I deny the power of the court, in such a case as this, to add the word 'and.' The rule is understood to be this: where there is a supposed mistake or omission, all the court has to do is to see whether it is possible to reconcile that part with the rest, and whether it is perfectly clear, upon the whole scope of the will, that the intention cannot stand with the alleged mistake or omission. Mellish v. Mellish, 4 Ves., 49. It appears to me these words are perfectly consistent with the other parts of the will, and are by no means repugnant to the main intention of the testator, but perfectly consistent therewith.

His intention, as manifested by all the provisions of the will, appears to be, to divide his personal estate equally among his sons and daughters and his wife, and to divide all his real estate, or lands, equally among his sons. That he intended each son to take an equal part of his lands, is proved by the direction to have each portion valued. That half of the Open Woods tract was not equal in value to the two river tracts, excluding the two hundred acres to be laid off into lots, is clearly proved by the will itself; because the testator gives his wife her choice of the Open Woods tract, or the two tracts on the river; and whichever she selects is, at her death, to go to his youngest son, Newit, and the other to be divided between his sons Westley and William; and he further directs that the part which his son Hartwell had received, should be valued, considered his, and as part of his portion of the estate. Here is a clear and unequivocal intention manifested to give to each son an equal portion of his real estate; and it is as clearly manifested that the specific portions given are not equal. To maintain the construction given to the will by the court, the two hundred acres are excluded from the devise of all the testator's lands to his sons. And the question arises, and ought to have been decided, how are these portions to be equalized? If the two hundred acres passed to the sons by the devise, subject to the payment of debts, then a reasonably certain contingent means was afforded for equalizing the portions, by dividing and valuing the lots not sold to pay debts, to make up deficiencies.

This view alone is sufficient to satisfy my mind that all the lands passed to the sons by the general words, 'all of my lands, all of which lands I wish to be appraised, and valued, and divided, when my son Westley arrives at the age of twenty-one years.' Can the words 'for the use and benefit of all my heirs,' which in themselves contain no positive words of grant, control the previous, positive, and unconditional, grant of all his lands to his sons? It appears to me to be impossible to give such controlling influence to such words, upon any of the known and established rules of construction; and especially when they admit of a different interpretation, by which they would stand in perfect harmony with the other provisions of the will.

The accounts settled by the executor, with the Orphans' Court, and which are part of the record exhibited in the bill of complaint, show that between twenty-five thousand and thirty thousand dollars of the debts of the estate were paid by the proceeds of the cotton crops; which proves that a large portion of the personal estate consisted of slaves. Is it not reasonable, therefore, to suppose the testator had in his mind the disadvantages that would result to all his children, if he should leave his slaves liable to be sold for the payment of his debts, when he ordered the lots, which were unproductive, to be sold for that purpose, 'in preference to any other of his property' which was productive? Acting upon this view of his affairs, is it at all surprising that he should have inserted in his will, even by interlining, the words, 'for the use and benefit of all my heirs,' that being the reason which induced him to charge the debts upon the town lots?

But putting out of view all extraneous considerations, can the construction given by the court to this part of the will be sustained upon principle? Executors have no authority to sell real estate, unless the power to sell, and the purpose of the sale, are expressed in the will. Therefore the court cannot infer, from a power expressly granted to sell the estate for one purpose, a power to sell it for another purpose not granted. Hill v. Cook, 1 Ves. & B., 175. In the case under consideration, the only authority given by the will to sell the town lots, was for the payment of debts; and there the power of the executors to sell any portion of the estate terminated. When they had sold as many of the lots as were necessary to pay the debts, the remainder fell into the general devise of all the lands of the testator to his sons; and the purposes of the testator, in relation to his real estate, were accomplished, according to his plain intention, when all the provisions of the will are taken together.

To reserve the remainder of the lots from the general devise, and to give effect to the interlined words, different from their plain meaning, in the connection in which they stand with the other provisions of the will, the court revive the exhausted power of sale, and give capacity to all the heirs to take the proceeds of the sale of the remainder of the lots, by inserting the conjunction 'and' between the power to sell the lots for the payment of debts and the interlined words; thereby changing the meaning of the whole sentence. This certainly is not construing the will; but it is making a will, and giving this portion of the testator's estate to his daughters, which he plainly intended for, and gave to, his sons.

This will was brought in question before the High Court of Errors and Appeals of the state of Mississippi, in the case of Vick and others v. The Mayor and Aldermen of Vicksburg, 1 How. (Miss.), 442. The question before that court was, whether the land in controversy had been dedicated by Newit Vick, in his lifetime, to public purposes, or passed to, and was vested in his devisees by his will; and it is a part of the same land in controversy in the case before this court; the court of Mississippi having concurrent jurisdiction of the subject-matter with this court, decided, that the whole of the real estate was devised to the sons of Newit Vick, deceased; and that his daughters were entitled to no part of the lots, nor any part of the proceeds of the sale of them. According to the Constitution and laws of the United States and previous decisions of this court, I think this court was bound to follow the decision of that court upon the construction of the will.

The 2d section of the 3d article of the Constitution of the United States declares, 'The judicial power shall extend to all cases in law and equity arising under this Constitution, the laws of the United States, and treaties made or which shall be made under their authority; to all cases affecting ambassadors, other public ministers, and consuls; to all cases of admiralty and maritime jurisdiction; to controversies to which the United States shall be a party; to controversies between two or more states, between citizens of different states, between citizens of the same state claiming lands under grants of different states, and between a state or the citizens thereof and foreign states, citizens, or subjects.' In these three latter classes of cases, the jurisdiction of the courts of the United States is concurrent with the state courts. In this case it originated between citizens of different states, and is, therefore, concurrent with the courts of Mississippi. Before the jurisdiction here conferred on the courts of the United States could be exercised, it was necessary their powers and authority should be established and defined by law. And accordingly, by the 34th section of the act of Congress of the 24th of September, 1789, it is enacted, 'That the laws of the several states, except where the Constitution, treaties, or statutes of the United States shall otherwise require or provide, shall be regarded as rules of decision in trials at common law in the courts of the United States, in cases where they apply.' The purposes for which jurisdiction was given to the courts of the United States between citizens of different states in ordinary matters of controversy, between citizens of the same state claiming lands under grants from different states, and between an alien and a citizen of a state, was to give in each of these cases, at the option of the plaintiff, a tribunal, presumed to be free from any accidental state prejudice or partiality, for the trial of the cause.

And when Congress defined the powers of the courts of the United States, they directed, that the laws of the several states should be regarded as the rules of decision in suits at common law, in cases where they apply. And upon these principles, with few, if any exceptions, has this court acted from the commencement of the government down to the present term of this court. That they should continue so to act, is of great importance to the peace and harmony of the people of the United States. If the state judicial tribunals establish a rule, governing titles to real estate, whether it arise under statute, deed, or will, and this court establishes another and a different rule, which of these two rules shall prevail? They do not operate like two equal powers in physics, one neutralizing the other; but they produce a contest for success, a struggle for victory; and in such a contest it may easily be foreseen which will prevail.

The state courts have unlimited jurisdiction over all the persons, and property, real and personal, within the limits of the state. And as often as the courts of the United States have it in their power, by their judgments, under their limited jurisdiction, to turn out of the possession of real estate those who have been put into it by the judgment of the highest court of appellate jurisdiction of the state, so often that possession will be restored by the same judicial state power. To avert such a contest, and in obedience to the act of Congress before referred to, this court have laid it down, in many cases, as a sound and necessary rule, that they should follow the state decisions establishing rules and regulating titles to real estate. And in the following cases they have applied the rule to the construction of wills, devising real estate. In Jackson v. Chew, 12 Wheat., 162, the principle is fully maintained. In that case the court say, 'The inquiry is very much narrowed by applying the rule which has uniformly governed this court, that where any principle of law, establishing a rule of real property, has been settled in the state courts, the same rule will be applied by this court, that would be established by the state tribunals. This is a principle so obviously just, and so indispensably necessary under our system of government, that it cannot be lost sight of.' The question in that case arose upon the construction of a will devising land in New York. In the case of Henderson and wife v. Griffin, 5 Pet., 154, the court say, 'The opinion of the court in the case of Kennedy v. Marsh was an able one; it was the judicial construction of the will of Mr. Laurens, according to their view of the rules of the common law in that state, as a rule of property, and comes within the principle adopted in Jackson v. Chew, 12 Wheat., 153, 167.' These cases are in strict conformity with the 34th section of the act of the 24th September, 1789, above referred to.

There are many other decisions of this court applicable to this case; some of them have followed a single decision of a state court, where it settled a rule of real property. And at the present term of this court, in the case of Carroll v. Safford, treasurer, &c., it was held, that it was not material whether it had been settled by frequent decisions, or a single case. From these authorities, it is plain, the jurisdiction of this court is not wholly concurrent in this case with the Supreme Court of Mississippi; but in power of judgment it is subordinate to that court, and, therefore, the construction given by that court to the will ought to have been the rule of construction for this court.

Mr. Chief Justice TANEY concurred in the opinion of Mr. Justice McKINLEY.

title: Lane v. Vick/Dissent McKinley


text:
Washington as a Camp/Our Advance into Virginia

Meantime the weeks went on. May 23d arrived. Lovely creatures with their taper fingers had been brewing a flag for us. Shall I say that its red stripes were celestial rosy as their cheeks, its white stripes virgin white as their brows, its blue field cerulean as their eyes, and its stars scintillating as the beams of said peepers? Shall I say this? If I were a poet, like Jeff Davis and each and every editor of each and every newspaper in our misbehaving States, I might say it. And involuntarily I have said it.
 * Our Advance into Virginia.

So the young ladies of New York — including, I hope, her who made my sandwiches for the march hither — had been making us a flag, as they have made us havelocks, pots of jelly, bundles of lint, flannel dressing-gowns, embroidered slippers for a rainy day in camp, and other necessaries of the soldier’s life.

May 23d was the day we were to get this sweet symbol of good-will. At evening parade appeared General Thomas, as the agent of the ladies, the donors, with a neat speech on a clean sheet of paper. He read it with feeling; and Private W., who has his sentimental moments, avows that he was touched by the General’s earnest manner and patriotic words. Our Colonel responded with his neat speech, very apropos. The regiment then made its neat speech, nine cheers and a roar of tigers, — very brief and pointed.

There had been a note of preparation in General Thomas’s remarks, — a “Virginia, cave canem!” And before parade was dismissed, we saw our officers holding parley with the Colonel.

Something in the wind! As I was strolling off to see the sunset and the ladies on parade, I began to hear great irrepressible cheers bursting from the streets of the different companies.

“Orders to be ready to march at a moment’s notice!” — so I learned presently from dozens of overjoyed fellows. “Harper’s Ferry!” says one. “Alexandria!” shouts a second. “Richmond!” only Richmond will content a third. And some could hardly be satisfied short of the hope of a breakfast in Montgomery.

What a happy thousand were the line-companies! How their suppressed ardors stirred! No want of fight in these lads! they may be rather luxurious in their habits, for camp-life. They may be a little impatient of restraint. They may have — as the type regiment of militia — the type faults of militia on service. But a desire to dodge a fight is not one of these faults.

Every man in camp was merry, except two hundred who were grim. These were the two artillery companies, ordered to remain in guard of our camp. They swore as if Camp Cameron were Flanders.

I by rights belonged with these malecontent and objurgating gentlemen; but a chronicler has privileges, and I got leave to count myself into the Eighth Company, my old friend Captain Shumway’s. We were to move, about midnight, in light marching order, with one day’s rations.

It has been always full moon at our camp. This night was full moon at its fullest, — a night more perfect than all perfection, mild, dewy, refulgent. At one o’clock the drum beat; we fell into ranks, and marched quietly off through the shadowy trees of the lane, into the highway.


text:
Washington as a Camp/Across the Long Bridge

I have heretofore been proud of my individuality, and resisted, so far as one may, all the world’s attempts to merge me in the mass. In pluribus unum has been my motto. But whenever I march with the regiment, my pride is that I lose my individuality, that I am merged, that I become a part of a machine, a mere walking gentleman, a No. 1 or a No. 2, front rank or rear rank, file-leader of file-closer. The machine is so steady and so mighty, it moves with such musical cadence and such brilliant show, that I enjoy it entirely as the unum and lose myself gladly as a pluribus.
 * Across the Long Bridge.

Night increases this fascination. The outer world is vague in the moonlight. Objects out of our ranks are lost. I see only glimmering steel and glittering buttons and the light-stepping forms of my comrades. Our array and our step connect us. We move as one man. A man made up of a thousand members and each member a man, is a grand creature, — particularly when you consider that he is self-made. And the object of this self-made giant, men-man, is to destroy another like himself, or the separate pigmy members of another such giant. We have failed to put ourselves — heads, arms, legs, and wills — together as a unit for any purpose so thoroughly as to snuff out a similar unit. Up to 1861, it seems that the business of war compacts men best.

Well, the Seventh, a compact projectile, was now flinging itself along the road to Washington. Just a month ago, “in such a night as this,” we made our first promenade through the enemy’s country. The moon of Annapolis — why should we not have our ominous moon, as those other fellows had their sun of Austerlitz? — the moon of Annapolis shone over us. No epithets are too fine or too complimentary for such a luminary, and there was no dust under her rays.

So we pegged along to Washington and across Washington, — which at this point consists of Willard’s Hotel, few other buildings being in sight. A hag in a nightcap reviewed us from an upper window as we tramped by.

Opposite that bald block, the Washington Monument, and opposite what was of more importance to us, a drove of beeves putting beef on their bones in the seedy grounds of the Smithsonian Institution, we were halted while the New Jersey brigade — some three thousand of them — trudged by, receiving the complimentary fire of our line as they passed. New Jersey is not so far from New York, but that the dialects of the two can understand each other. Their respective slangs, though peculiar, are of the same genus. By the end of this war, I trust that these distinctions of locality will be quite annulled.

We began to feel like an army as these thousands thronged by us. This was evidently a movement in force. We rested an hour or more by the road. Mounted officers galloping along down the lines kept up the excitement.

At last we had the word to fall in again and march. It is part of the simple perfection of the machine, a regiment, that, though it drops to pieces for a rest, it comes together instantly for a start, and nobody is confused or delayed. We moved half a mile farther, and presently a broad pathway of reflected moonlight shone up at us from the Potomac.

No orders, at this, came from the colonel, “Attention, battalion! Be sentimental!” Perhaps privates have no right to perceive the beautiful. But the sections in my neighborhood murmured admiration. The utter serenity of the night was most impressive. Cool and quiet and tender the moon shone upon our ranks. She does not change her visage, whether it be lovers or burglars or soldiers who use her as a lantern to their feet.

The Long Bridge thus far has been merely a shabby causeway with water-ways and draws. Shabby, — let me here pause to say that in Virginia shabbiness is the grand universal law, and neatness the spasmodic exception, attained in rare spots, an æon beyond their Old Dominion age.

The Long Bridge has thus far been a totally unhistoric and prosaic bridge. Roads and bridges are making themselves of importance, and shining up into sudden renown in these times. The Long Bridge has done nothing hitherto except carry passengers on its back across the Potomac. Hucksters, planters, dry-goods drummers, members of Congress, et ea genera omnia, have here gone and come on their several mercenary errands, and, as it now appears, some sour little imp — the very reverse of a “sweet little cherub” — took toll of every man as he passed, — a heavy toll, namely, every man’s whole store of Patriotism and Loyalty. Every man — so it seems — who passed the Long Bridge was stripped of his last dollar of Amor Patriæ, and came to Washington, or went home, with a waistcoat-pocket full of bogus in change. It was our business now to open the bridge and see it clear, and leave sentries along to keep it permanently free for Freedom.

There is a mile of this Long Bridge. We seemed to occupy the whole length of it, with our files opened to diffuse the weight of our column. We were not now the tired and sleepy squad which just a moon ago had drudged along the railroad to the Annapolis Junction, looking up a Capital and Government, perhaps lost.

By the time we touched ground across the bridge, dawn was breaking, — a good omen for poor old sleepy Virginia. The moon, as bright and handsome as a new twenty-dollar piece, carried herself straight before us, — a splendid oriflamme.

Lucky is the private who marches with the van! It may be the post of more danger, but it is also the post of lest dust. My throat, therefore, and my eyes and beard, wore the less Southern soil when we halted half a mile beyond the bridge, and let sunrise overtake us.

Nothing men can do — except picnics, with ladies in straw flats with feathers, — is so picturesque as soldiering. As soon as the Seventh halt anywhere, or move anywhere, or camp anywhere, they resolve themselves into a grand tableau. Their own ranks should supply their own Horace Vernet. Our groups were never more entertaining than at this halt by the roadside on the Alexandria road. Stacks of guns make a capital framework for drapery, and red blankets dot in the lights most artistically. The fellows line the road with their gay array, asleep on the rampage, on the lounge, and nibbling at their rations.

By and by, when my brain had taken in as much of the picturesque as it could stand, it suffered the brief congestion known as a nap. I was suddenly awaked by the rattle of a horse’s hoofs. Before I had rubbed my eyes the rider was gone. His sharp tidings had stayed behind him. Ellsworth was dead, — so he said hurriedly, and rode on. Poor Ellsworth! a fellow of genius and initiative! he had still so much of the boy in him, that he rattled forward boyishly, and so died. Si monumentum requiris, look at his regiment. It was a brilliant stroke to levy it; and if it does worthily, its young Colonel will not have lived in vain.

As the morning hours passed, we learned that we were the rear-guard of the left wing of the army advancing into Virginia. The Seventh, as the best organized body, acted as reserve to this force. It didn’t wish to be in the rear; but such is the penalty of being reliable for an emergency. Fellow-soldier, be a scalawag, be a bashi-bazouk, be a Billy-Wilsoneer, if you wish to see the fun in the van!

When the road grew too hot for us, on account of the fire of sunshine in our rear, we jumped over the fence into the Race-Course, a big field beside us, and there became squatter sovereigns all day. I shall be a bore if I say again what a pretty figure we cut in this military picnic, with two long lines of blankets draped on bayonets for parasols.

The New Jersey brigade were meanwhile doing workie work on the ridge just beyond us. The road and railroad to Alexandria follow the general course of the river southward along the level. This ridge to be fortified is at the point where the highway bends from west to south. The works were intended to serve as an advance tête du pont, — a bridge-head, with a very long neck connecting it with the bridge. That fine old Fabius, General Scott, had no idea of flinging an army out broadcast into Virginia, and, in the insupposable case that it had turned tail, leaving it no defended passage to run away by.

This was my first view of a field-work in construction, — also, my first hand as a laborer at a field-work. I knew glacis and counterscarp on paper; also, on paper, superior slope, banquette, and the other dirty parts of a redoubt. Here they were, not on paper. A slight wooden scaffolding determined the shape of the simple work; and when I arrived, a thousand Jerseymen were working, not at all like Jerseymen, with picks, spades, and shovels, cutting into Virginia, digging into Virginia, shovelling up Virginia, for Virginia’s protection against pseudo-Virginians.

I swarmed in for a little while with our Paymaster, picked a little, spaded a little, shovelled a little, took a hand to my great satisfaction at earth-works, and for my efforts I venture to suggest that Jersey City owes me its freedom in a box, and Jersey State a basket of its finest Clicquot.

Is my gentle reader tired of the short marches and frequent halts of the Seventh? Remember, gentle reader, that you must be schooled by such alphabetical exercises to spell bigger words — skirmish, battle, defeat, rout, massacre — by and by.

Well, — to be Xenophontic, —from the Race-Course that evening we marched one stadium, one parasang, to a cedar-grove up the road. In the grove is a spring worthy to be called a fountain, and what I determined by infallible indications to be a lager-bier saloon. Saloon no more! War is no respector of localities. Be it Arlington House, the seedy palace of a Virginia Don, — be it the humbler, but seedy, pavilion where the tired Teuton washes the dust of Washington away from his tonsils, — each must surrender to the bold soldier-boy. Exit Champagne and its goblet; exit lager and its mug; enter whiskey-and-water in a tin pot. Such are the horrors of civil war!

And now I must cut short my story, for graver matters press. As to the residence of the Seventh in the cedar-grove for two days and two nights, — how they endured the hardship of a bivouac on soft earth and the starvation of coffee sans milk, — how they digged manfully in the trenches by gangs all these two laborious days, — with what supreme artistic finish their work was achieved, — how they chopped off their corns with axes, as they cleared the brushwood from the glacis, — how they blistered their hands, — how they chafed that they were not lunging with battailous steel at the breasts of the minions of the oligarchs, — how Washington, seeing the smoke of burning rubbish, and hearing dropping shots of target-practice, of novices with the musket shooting each other by accident, — how Washington, alarmed, imagined a battle, and went into panic accordingly, — all this, is it not written in the daily papers?

On the evening of the 26th, the Seventh travelled back to Camp Cameron in a smart shower. Its service was over. Its month was expired. The troops ordered to relieve it had arrived. It had given the other volunteers the benefit of a month’s education at its drills and parades. It had enriched poor Washington to the tune of fifty thousand dollars. Ah, Washington! that we, under Providence and after General Butler, saved from the heel of Secession! Ah, Washington, why did you charge us so much for our milk and butter and strawberries? The Seventh, then, after a month of delightful duty, was to be mustered out of service, and take new measures, if it would, to have a longer and a larger share of the war.


text:
Washington as a Camp/Arlington Heights

I took advantage of the day of rest after our return to have a gallop about the outposts. Arlington Heights had been the spot whence the alarmists threatened us daily with big thunder and bursting bombs. I was curious to see the region that had had Washington under its thumb.
 * Arlington Heights.

So Private W., tired of his foot-soldiering, got a quadruped under him, and felt like a cavalier again. The horse took me along the tow-path of the Cumberland Canal, as far as the redoubts where we had worked our task. Then I turned up the hill, took a look at the camp of the New York Twenty-Fifth at the left, and rode along for Arlington House.

Grand name! and the domain is really quite grand, but ill-kept. Fine oaks make beauty without asking favors. Fine oaks and a fair view make all the beauty of Arlington. It seems that this old establishment, like many another old Virginian, had claimed its respectability for its antiquity, and failed to keep up to the level of the time. The road winds along through the trees, climbing to fairer and fairer reaches of view over the plain of Washington. I had not fancied that there was any such lovely site near the capital. But we have not yet appreciated what nature has done for us there. When civilization once makes up its mind to colonize Washington, all this amphitheatre of hills will blossom with structures of sublimest gingerbread.

Arlington House is the antipodes of gingerbread, except that it is yellow, and disposed to crumble. It has a pompous propylon of enormous stuccoed columns. Any house smaller than Blenheim would tail on insignificantly after such a frontispiece. The interior has a certain careless, romantic, decayed-gentleman effect, wholly Virginian. It was enlivened by the uniforms of staff-officers just now, and as they rode through the trees of the approach and by the tents of the New York Eighth, encamped in the grove to the rear, the tableau was brilliantly warlike. Here, by the way, let me pause to ask, as a horseman, though a foot-soldier, why generals and other gorgeous fellows make such guys of their horses with trappings. If the horse is a screw, cover him thick with saddle-cloths, girths, cruppers, breast-bands, and as much brass and tinsel as your pay will enable you to buy; but if not a screw, let his fair proportions be seen as much as may be, and don’t bother a lover of good horse-flesh to eliminate so much uniform before he can see what is beneath.

From Arlington I rode to the other encampments, — the Sixty-Ninth, Fifth, and Twenty-Eighth, all of New York, — and heard their several stories of alarms and adventures. This completed the circuit of the new fortification of the Great Camp. Washington now was a fortress. The capital was out of danger, and therefore of no further interest to anybody. The time had come for myself and my regiment to leave it by different ways.

title: Washington as a Camp/Arlington Heights


text:
Washington as a Camp/“Partant pour la Syrie”

I should have been glad to stay and see my comrades through to their departure; but there was a Massachusetts man down at Fortress Monroe, Butler by name, — has any one heard of him? — and to this gentleman it chanced that I was to report myself. So I packed my knapsack, got my furlough, shook hands with my fellows, said good by to Camp Cameron, and was off, two days after our month’s service was done.
 * “Partant pour la Syrie”.


text:
Washington as a Camp/Farewell to the Seventh

Under Providence, Washington owes its safety, 1st, To General Butler, whose genius devised the circumvention of Baltimore and its rascal rout, and whose utter bravery executed the plan; — he is the Grand Yankee of this little period of the war. 2d, To the other Most Worshipful Grand Yankees of the Massachusetts regiment who followed their leader, as he knew they would, discovered a forgotten colony called Annapolis, and dashed in there, asking no questions. 3d, And while I gladly yield the first places to this General and his men, I put the Seventh in, as last, but not least, in saving the capital. Character always tells. The Seventh, by good, hard, faithful work at drill, had established its fame as the most thorough militia regiment in existence. Its military and moral character were excellent. The mere name of the regiment carried weight. It took the field as if the field were a ball-room. There were myriads easier to march; but they had not made ready beforehand. Yes, the Seventh had its important share in the rescue. Without our support, whether our leaders tendered it eagerly or hesitatingly, General Butler’s position at Annapolis would have been critical, and his forced march to the capital a forlorn hope, — heroic, but desperate.
 * Farewell to the Seventh.

So, honor to whom honor is due.

Here I must cut short my story. So good by to the Seventh, and thanks for the fascinating month I have passed in their society. In this pause of the war our camp-life has been to me as brilliant as a permanent picnic.

Good by to Company I, and all the fine fellows, rough and smooth, cool old hands and recruits verdant but ardent! Good by to our Lieutenants, to whom I owe much kindness! Good by, the Orderly, so peremptory on parade, so indulgent off! Good by, everybody!

And so in haste, I close.


text:
Talk:Washington as a Camp

This story is a part of the anthology Life in the Open Air and other papers. See Talk:Life in the Open Air and other papers for information on this edition.

title: Talk:Washington as a Camp


text:
Author:Charles I of England

Works

 * Declaration of Sports, 1633
 * Reliquiae Sacrae Carolinae, Posthumously, 1651

Works about Charles I

 * Articles of Impeachment of King Charles I (1649)
 * Death warrant of King Charles I (1649)
 * Articles of Impeachment of King Charles I (1649)
 * Death warrant of King Charles I (1649)

Poetry

 * Cromwell at the corpse of Charles I. by Josef Svatopluk Machar

title: Author:Charles I of England


text: Page:Hudibras - Volume 1 (Butler, Nash, Bohn; 1859).djvu/49


text:
Fortress Monroe

Contents

 * Editor’s Note
 * Voices of the Contraband
 * Physiognomy of Fortress Monroe
 * Physiognomy of the Country
 * Physiognomy of Water
 * The Forces

title: Fortress Monroe


text:
Talk:Fortress Monroe

This short story is a part of the anthology Life in the Open Air and other papers. See Talk:Life in the Open Air and other papers for information on this edition.

title: Talk:Fortress Monroe


text:
Fortress Monroe/Editor’s Note

[The sketches of the campaign in Virginia, which Winthrop had commenced in the “Atlantic Monthly,” would have been continued, had he lived. Immediately upon his arrival at Fort Monroe he had commenced a third article. It is inserted here just as he left it, with one brief addition only to make his known meaning more clear. The part called “Voices of the Contraband” was written previously, and is not paged in the manuscript. It was to have been introduced into the article; but it is placed first here, that the sequence of the paper, as far as the author had written it, may remain undisturbed.]
 * Editor’s Note

title: Fortress Monroe/Editor’s Note


text:
Fortress Monroe/Voices of the Contraband

Solvuntur risu tabulæ. An epigram abolished slavery in the United States. Large wisdom, stated in fine wit, was the decision, “Negroes are contraband of war.” “They are property,” claim the owners. Very well! As General Butler takes contraband horses used in transport of munitions of war, so he takes contraband black creatures who tote the powder to the carts and flagellate the steeds. As he takes a spade used in hostile earth-works, so he goes a little farther off and takes the black muscle that wields the spade. As he takes the rations of the foe, so he takes the sable Soyer whose skilful hand makes those rations savory to the palates and digestible by the stomachs of the foe, and so puts blood and nerve into them. As he took the steam-gun, so he now takes what might become the stoker of the steam part of that machine and the aimer of its gun part. As he takes the musket, so he seizes the object who in the Virginia army carries that musket on its shoulder until its master is ready to reach out a lazy hand, nonchalantly lift the piece, and carelessly pop a Yankee.
 * Voices of the Contraband.


text:
Fortress Monroe/Physiognomy of Fortress Monroe

The “Adelaide” is a steamer plying between Baltimore and Norfolk. But as Norfolk has ceased to be a part of the United States, and is nowhere, the “Adelaide” goes no farther than Fortress Monroe, Old Point Comfort, the chief somewhere of this region. A lady, no doubt Adelaide herself, appears in alto rilievo on the paddle-box. She has a short waist, long skirt sans crinoline, leg-of-mutton sleeves, lofty bearing, and stands like Ariadne on an island of pedestal size, surrounded by two or more pre-Raphaelite trees. In the offing comes or goes a steamboat, also pre-Raphaelite; and if Ariadne Adelaide’s Bacchus is on board, he is out of sight at the bar.
 * Physiognomy of Fortress Monroe.

Such an Adelaide brought me in sight of Fortress Monroe at sunrise, May 29, 1861. The fort, though old enough to be full-grown, has not grown very tall upon the low sands of Old Point Comfort. It is a big house with a basement story and a garret. The roof is left off, and stories between basement and garret have never been inserted.

But why not be technical? For basement read a tier of casemates, each with a black Cyclops of a big gun peering out; while above in the open air, with not even a parasol over their backs, lie the barbette guns, staring without a wink over sea and shore.

In peace, with a hundred or so soldiers here an there, this vast enclosure might seem a solitude. Now it is a busy city, — a city of one idea. I seem to recollect that D’Israeli said somewhere that every great city was founded on one idea and existed to develop it. This city, into which we have improvised a population, has its idea, — a unit of an idea with two halves. The east half is the recovery of Norfolk, — the west half the occupation of Richmond; and the idea complete is the education of Virginia’s unmannerly and disloyal sons.

Why Secession did not take this great place when its defenders numbered a squad of officers and three hundred men, is mysterious. Floyd and his gang were treacherous enough. What was it? Were they imbecile? Were they timid? Was there, till too late, a doubt whether the traitors at home in Virginia would sustain them in an overt act of such big overture as an attempt here? But they lost the chance, and with it lost the key of Virginia, which General Butler now holds, this 30th day of May, and will presently begin to turn in the lock.

Three hundred men to guard a mile and a half of ramparts! Three hundred to protect some sixty-five broad acres within the walls! But the place was a Thermopylæ, and there was a fine old Leonidas at the head of its three hundred. He was enough to make Spartans of them. Colonel Dimmick was the man, — a quiet, modest, shrewd, faithful, Christian gentleman; and he held all Virginia at bay. The traitors knew, that, so long as the Colonel was here, these black muzzles with their white tompions, like a black eye with a white pupil, meant mischief. To him and his guns, flanking the approaches and ready to pile the moat full of Seceders, the country owes the safety of Fortress Monroe.

Within the walls are sundry nice old brick houses for officers’ barracks. The jolly bachelors live in the casemates and the men in long barracks, now not so new or so convenient as they might be. In fact, the physiognomy of Fortress Monroe is not so neat, well-shorn, and elegant as a grand military post should be. Perhaps our Floyds, and the like, thought, if they kept everything in perfect order here, they, as Virginians, accustomed to general seediness, would not find themselves at home. But the new régime must change all this, and make this the biggest, the best equipped, and the model garrison of the country. For, of course, this must be strongly held for many, many years to come. It is idle to suppose that the dull louts we find here, not enlightened even enough to know that loyalty is the best policy, can be allowed the highest privilege of the moral, the intelligent, and the progressive, — self-government. Mind is said to march fast in our time; but mind must put on steam here-abouts to think and at for itself, without stern schooling, in half a century.

But no digressing! I have looked far away from the physiognomy of the fortress. Let us turn to the

[Sentence continues with next heading]


text:
Fortress Monroe/Physiognomy of the Country

The face of this county, Elizabeth City by name, is as flat as a Chinaman’s. I can hardly wonder that the people here have retrograded, or rather, not advanced. This dull flat would make anybody dull and flat. I am no longer surprised at John Tyler. He has had a bare blank brick house, entitled sweetly Margarita Cottage, or some such tender epithet, at Hampton, a mile and a half from the fort. A summer in this site would make any man a bore. And as something has done this favor for His Accidency, I am willing to attribute it to the influence of locality.
 * Physiognomy of the Country.

The country is flat; the soil is fine sifted loam running to dust, as the air of England runs to fog; the woods are dense and beautiful, and full of trees unknown to the parallel of New York; the roads are miserable cart-paths; the cattle are scalawags; so are the horses, not run away; so are the people; black and white, not run away; the crops are tolerable, where the invaders have not trampled them.

Altogether the whole concern strikes me as a failure. Captain John Smith & Co. might as well have stayed at home, if this is the result of the two hundred and thirty years’ occupation. Apparently the colonists picked out a poor spot; and the longer they stayed, the worse fist they made of it. Powhattan, Pocahontas, and the others without pantaloons and petticoats, were really more serviceable colonists.

The farm-houses are mostly miserably mean habitations. I don’t wonder the tenants were glad to make our arrival the excuse for running off. Here are men claiming to have been worth forty thousand dollars, half in biped property, half in all other kinds, and they lived in dens such as a drayman would have disdained and a hod-carrier only accepted on compulsion.


text:
Fortress Monroe/Physiognomy of Water

Always beautiful! The sea cannot be spoilt. Our fleet enlivens it greatly. Here is the flag-ship “Cumberland” vis-à-vis the fort. Off to the left are the prizes, unlucky schooners, which ought to be carrying pine wood to the kitchens of New York, and new potatoes and green peas for the wood to operate upon. This region, by the way, is New York’s watermelon patch for early melons; and if we do not conquer a peace here pretty soon, the Jersey fruit will have the market to itself.
 * Physiognomy of Water.

Besides stately flag-ships and poor little bumboat schooners, transports are coming and going with regiments or provisions for the same. Here, too, are old acquaintances from the bay of New York, — the “Yankee,” a lively tug, — the “Harriet Lane,” coquettish and plucky, — the “Catiline,” ready to reverse her name and put down conspiracy.

On the dock are munitions of war in heaps. Volunteer armies load themselves with things they do not need, and forget the essentials. The unlucky army-quartermaster’s people, accustomed to the slow and systematic methods of the by-gone days at Fortress Monroe, fume terribly over these cargoes. The new mind and the new manners of the new army do not altogether suit the actual men and manners of the obsolete army. The old men and the new must recombine. What we want now is the vigor of fresh people to utilize the experience of the experts. The Silver-Gray Army needs a frisky element interfused. On the other hand, the new army needs to be taught a lesson in method by the old; and the two combined will make the grand army of civilization.

title: Fortress Monroe/Physiognomy of Water


text:
Fortress Monroe/The Forces

When I arrived, Fort Monroe and the neighborhood were occupied by two armies.
 * The Forces.

 * 1) General Butler
 * 2) About six thousand men, here and at Newport’s News.

Making together more than twelve thousand men.

Of the first army, consisting of the General, I will not speak. Let his past supreme services speak for him, as I doubt not the future will.

Next to the army of a man comes the army of men. Regulars a few, with many post officers, among them some very fine and efficient fellows. These are within the post. Also within is the Third Regiment of Massachusetts, under Colonel Wardrop, the right kind of man to have, and commanding a capital regiment of three months’ men, neatly uniformed in gray, with cocked felt hats.

Without the fort, across the moat, and across the bridge connecting this peninsula of sand with the nearest side off the mainland, are encamped three New York regiments. Each is in a wheat-field, up to its eyes in dust. In order of precedence they come One, Two, and Five; in order of personal splendor of uniform, they come Five, One, Two; in order of exploits they are all in the same negative position at present; and the Second has done rather the most robbing of hen–roosts.

The Fifth, Duryea’s Zouaves, lighten up the woods brilliantly with their scarlet legs and scarlet head-pieces.

[These last words were written upon the day that the attack in which the author fell was arranged.]

title: Fortress Monroe/The Forces


text:
Brightly’s Orphan

Contents

 * Editor’s Note
 * Chapter I
 * Chapter II

title: Brightly’s Orphan


text:
Brightly’s Orphan/Editor’s Note

[The author had only written two chapters of this story when he joined the Army. It was the last thing his hand was engaged upon when the call for volunteers summoned him to the field. He said of it, “I am tired of writing of crime and wrong; this shall be cheerful and sunshiny, if I can make it so.” In its unfinished state it has been thought worthy of preservation.]
 * Editor’s Note

title: Brightly’s Orphan/Editor’s Note