of Chief Justice Marshall, are especially remembered as being the
themes of his most admired arguments, and in which he overcame the
preconceived opinions of the great Judge, though impressed and
supported by the acknowledged abilities, learning and persuasiveness
of Gaston. These were the cases of _Whitaker_ vs. _Freeman_, an
action for libel in twenty-five different counts, and _Lattimer_
vs. _Poteat_, one of a series of cases in ejectment, to recover
immense bodies of land in the western counties, claimed by the
citizens of Northern States under purchases from speculators who,
it was alleged, had made their entries and procured grants before
the extinction of the title of the Cherokee Indians, in violation
of law; the defendants claiming under grants from the State made
after the admitted cession of the Indian title; and Mr. Badger
was retained by the State to defend their interests. This latter
case, involving the relations of North Carolina while a separate
sovereignty, and afterwards of the United States with the Cherokee
Indians, as regulated by sundry treaties, the location of several
lines of partition between them and the whites, but removed
further and further west as the population of the superior race
increased and emigration advanced, surveys partially or wholly
made to establish these lines through a mountainous, and in many
parts, an impervious country, imputed frauds in transgressing those
lines and entries without actual survey, was of exceeding volume
and complication in its facts, and occupied a week in the trial.
The argument, running through four days, was said to be the most
elaborate on both sides ever made in the State in a jury trial. It
resulted in a verdict and judgment for the defendants, which was
afterwards affirmed by the Supreme Court of the United States. After
the trial, Judge Marshall, in the simplicity and candor of his great
character, observed to the then Governor of the State, "At the close
of Mr. Gaston's opening argument, I thought he had as good a case as
I ever saw put to a jury, but Mr. Badger had not spoken two hours
before he satisfied me that no one of his [Gaston's] positions could
be maintained."
To this instance of _laudatus a laudato viro_ I deem it not improper
to add a few others from sources only less eminent: Chief Justice
Henderson declared in my presence that "To take up a string of
cases, run through them, extract the principle contained in each,
and discriminate the points in which they differed from each other,
or from the case in hand, I have never seen a man equal to George
Badger."
Judge Seawell remarked of him: "Badger is an elementary man,"
and, continuing in his peculiar and racy style, "he goes to first
principles; he finds the corners of his survey and then runs out
the boundaries, while others hunt along the lines. The difference
between him and myself is, that when I take up a book I read slowly,
pausing at the end of each sentence, and when I have reached the
bottom of the page I must stop and go back to see whether I fully
comprehend the author's meaning, while he reads it off like a novel,
and by the time he gets to the bottom of the page or the end of the
treatise he has in his mind not only all that the author has taught,
but a great deal that the author never knew."
Chief Justice Ruffin, yet surviving in honorable retirement from the
labors of the profession, whose early appreciation of the faculties
of Mr. Badger we have already noticed, and before whom as a Judge
of the Supreme Court, he was in full practice for twenty-three
years, affirmed to me, since the death of Mr. Badger, that in
dialectic skill and argument he excelled any individual with whom he
had ever been acquainted, not even excepting Chief Justice Marshall
himself, for that he possessed the faculty of imagination and the
capacity for illustration which Judge Marshall had not.
To his hospitality and kind intercourse with gentlemen of the
profession, his liberality and assistance to its junior members
(whom his gracious demeanor and familiar manners won, no less than
his spirited and intelligent conversation entertained and improved),
to his unselfish and genial nature, and an integrity on which no
temptation ever brought a stain, the occasion permits time only to
allude before closing our view of his professional life. Had he
been called to the office of Attorney-General of the United States
by General Jackson at the period of his first election (of which
Mr. Badger had been an ardent and efficient advocate), as many of
his friends entertained expectation, and had continued from that
time his practice in the Supreme Court of the United States, it is
hazarding but little to say that his fame would have equaled that of
any advocate in the history of American jurisprudence.
Of Mr. Badger's brief service at the head of the Navy
Department--excepting his recommendation of the establishment of a
home squadron to patrol the Gulf of Mexico and West Indian seas,
as a protection against piracy or any sudden hostile demonstration
on our coasts (a measure since adopted)--there is no circumstance
demanding especial notice. He had accepted the appointment at the
request of President Harrison with reluctance, retained it by the
expressed desire of his successor, and resigned it as soon as the
breach between Mr. Tyler and the party that elected him was found to
be irreparable.
Equally unsought and unexpected was his election to the Senate of
the United States when absent from the seat of government on a
professional errand beyond the sphere of his usual practice. He
entered the Senate in the first year of the war with Mexico and held
his seat throughout the struggle which ensued over the introduction
of slavery into the Territories acquired by the treaty of peace, a
struggle which was then threatening the dissolution of the Union;
he held his seat during the compromise measures of 1850, under the
leadership of Clay; the election of General Taylor; the succession
of Fillmore; the election of Pierce and the first half of his term,
including the organization of territorial government in Kansas and
Nebraska, a period of more fierce, convulsive and (as the sequel has
proved) fatal party agitation than any in American history except
the years that have succeeded it. Even now, after the dreadful
chastening that all have received from recent calamity, it is
difficult to recur to it without reviving passions inconsistent with
the solemnities of the hour and the charities inspired by common
suffering.
In this struggle it was maintained on the one hand that inasmuch
as these acquisitions of territory had been made by the common
contribution of men and means from all the States, the citizens of
any State were at liberty to emigrate and settle upon them, and to
carry any property they might possess, including slaves; that this
was the case by virtue of the operation of the Constitution over
the new territory _proprio vigore_. It was further declared that
Congress had no authority to legislate in contravention of this
right; and, in the progress of the dispute, this latter position,
was extended into the assumption that it was the duty of Congress
to enact laws to ensure it, and that a failure in this was a breach
of Constitutional duty so gross as to justify the injured States
in withdrawing from the Union, a power which, it was declared,
every State held in reservation, and might exercise at pleasure,
the Constitution being but a compact having no sanctions for its
perpetuation. On the other hand, there had been for years at the
North a party organization, not numerous at first, but which at this
period had swollen into a formidable power, whose avowed object was
the extinction of slavery; which had denounced the Constitution,
so far as it upheld or tolerated it, as a covenant with the
infernal powers; had absolved themselves from its maintenance in
this particular, and avowed their preference for a disruption of
the Union unless slavery should be abolished in the Territories
and States as well. More moderate men in that section, while not
agreeing with these extremists, denied emphatically either that the
Constitution gave to slavery a footing in the Territories or bound
Congress to maintain, or not interfere with, its existence there;
and that in the exercise of a legislative discretion they might
encourage, tolerate or forbid it; the great majority favoring its
prohibition in the Territories, while they held themselves bound to
non-interference in the States.
In this conflict a third party arose, which affirmed that Congress
had no power over the question in the Territories; that the people
who settled in those distant regions were entitled (not only when
applying for admission into the Union as a State, but whenever
organized into a Territory, or at any time thereafter) to determine
on the establishment or rejection of slavery as well as all other
questions of domestic policy; and by consequence, that the whole
history of the Government in the regulation of its Territories had
been an error.
Either of the contending parties was accustomed to tolerate very
considerable aberrations, and even heresies against its creed, to
acquire or preserve party ascendancy, or to achieve success in a
Presidential election; to which latter object no concessions and
no sacrifices were deemed excessive. And the flame on the main
topic was probably fanned by many, on both sides, with a view to
the marshalling of forces for this quadrennial contest for power
and patronage. Be this as it may, never were themes presented for
sectional parties so well adapted to deepen and widen the opened
breach between them, or pressed with more intensity or zeal. In the
ardor of the contest, old landmarks were discarded and old friends
repudiated, if not found in accordance with new positions assumed
in its progress. William Pinkney, the great champion of Southern
interests, at the period of the Missouri question, was pronounced
an abolitionist on the floor of the Senate by the highest Southern
authority, and the doors of Faneuil Hall were closed against Daniel
Webster by the authorities of Boston, for words of truth, soberness,
and conciliation, spoken in the Senate; and this while Clay (once
so much deferred to by them as a party leader) sat by, admiring and
encouraging every sentence Webster uttered.
Between these excited parties, Mr. Badger stood approved by neither.
As far back as the Mexican war, perceiving, as he thought, the
dangers to flow from the adjustment of the interests of slavery,
provided conquests should be made and new territories acquired, he
had repeatedly endeavored to bring the war to a close and to bar
out those dangers to the Union, by abstaining from the acquisition
of new domains, while the fierce contestants were both eager for
extensive conquests--the one with the flattering, but delusive, hope
of expanding the area of slavery, the other with the settled purpose
to apply to all such conquests the Wilmot Proviso and to exclude
slavery.
When peace came with those splendid acquisitions of territory,
so gratifying to the national pride, he was not disappointed in
discovering in them an apple of discord which was to prove fatal to
tranquillity at home. In the contention which was thus inaugurated,
he steadily supported the rights of his own section, maintaining
the justice and expediency of opening the Territories to all
emigrants, without restriction as to any species of property. In
an argument, replete with scriptural learning, he defended the
servitude existing in the South, under the name of slavery, as not
inconsistent with the divine law, more than justified by Jewish
precedents, and not forbidden by the benignant teachings of the
Saviour of the world, who found in the Roman Empire, at His coming,
and left without condemnation, a system of far greater severity.
He reminded Northern Senators of the responsibility of their
ancestors for the introduction and establishment of slavery in this
country--ours being but purchasers from them, at second hand, for a
consideration vastly greater than they had paid; the profits being
the foundation of much of their wealth, which their consciences did
not forbid them to retain. He brought home to their sense of duty
and of honor the obligation to maintain the Constitution, so long
as it remained the Constitution, in all its parts, as well those
which, as individuals, they disapproved as those to which they
assented. If any representative of the South urged any or all of
these considerations in favor of the rights of his section, with
more earnestness and ability than Mr. Badger, it is some one whose
argument has not fallen under my observation. But he refused to go
further. He refused to argue that Congress had no constitutional
power to legislate on the subject of slavery in the Territories.
He discussed the question with boldness, and adduced a decision of
the Supreme Court, announced in an opinion of Judge Marshall, to
the effect that the power did exist; and therefore, he addressed
his appeals to the legislative discretion of Congress. For this he
incurred the disapprobation of the extreme advocates of Southern
interests. But his opinion on the question had been deliberately
formed, and though he maintained that the exclusion of the Southern
emigrant with his peculiar property from these Territories would be
an unjust exercise and abuse of power, he declined to make what he
believed to be a false issue, in pronouncing it unconstitutional.
He dealt with the whole subject in the interest of peace, in
subordination to the Constitution, in the hope of allaying
excitement, and with an earnest desire for continued Union. He
therefore gladly co-operated with his old political associates,
Clay, Webster, Pearce of Maryland, Bell, Mangum, Berrien, Dawson,
as well as his Democratic opponents, Cass, Douglas, Dickinson,
Foote and other compatriots of both parties, in the well-remembered
measures of the Compromise of 1850, which calmed the waves of
agitation, and promised a lasting repose from this disturbing
element--an effect which was fully realized, with an occasional
exception of resistance to the law providing for the surrender of
fugitive slaves--until the unfortunate revival of the quarrel by the
repeal, in 1854 (in the law for the organization of the Territories
of Kansas and Nebraska) of the provision of the Missouri Compromise,
by which slavery was restricted from extending north of thirty-six
degrees thirty minutes, the southern boundary of Missouri. His
participation in this measure of repeal, Mr. Badger regarded as the
most serious error of his public life. He lived to see consequences
flow from it which he had not contemplated, and publicly expressed
his regret that he had given it his support. Not on the ground of
any breach of faith, for, as he amply demonstrated in his speech
on the passage of the measure, the Representatives of the North in
Congress had, in the Oregon Territorial bill, as well as in other
instances, demonstrated that they attached to it no sanctity. Yet
many good men among their constituents did--and politicians who
had, since the settlement of 1850, found "their occupation gone,"
eagerly welcomed this new theme for agitation. The experience of
climate, labor, and production, had shown that African slavery could
not be attended with profit north of this parallel, and the repeal
was regarded as a flout, defiance, and aggression which provoked
the resentment of thousands who had never before co-operated with
that extreme faction which conspired the destruction of slavery in
despite of the Constitution. Followed up as this measure was by
the impotent attempt to enforce protection to the institution in
Kansas, where it neither did, nor could exist without unreasonable
aid (which attempt was made after Mr. Badger left the Senate, and
in which there is no reason to believe he would have concurred), it
aroused an opposition, which, when embodied in the organization of
party, was irresistible. He was no propagandist of slavery, though
all the affections of his home and heart seconded the efforts of
his great mind in defending it as an institution of the country
recognized and guaranteed by the Constitution of the United States.
He was too sagacious to believe it could be benefited in any way by
provoking the shock of civil war, and too truthful and patriotic to
trifle with it as a means of rallying parties or subserving any of
the interests of faction. In voting for the repeal of the Missouri
restriction, he looked upon it as having been overvalued in its
practical importance at first, abandoned by the North as effete, if
not disregarded from the beginning, and its removal out of the way
as but conforming the system of territorial law to that part of the
Compromise of 1850 pertaining to the Territories, which left the
adoption or rejection of slavery to be decided by the inhabitants
when framing a constitution, preparatory to their admission as a
State of the Union; not anticipating the recoil in public sentiment,
which was the first step in the overthrow of slavery itself.
I have been thus tedious in the review of the history of this period
because it was upon topics arising out of this great subject of
controversy, ever uppermost in the public mind, that Mr. Badger
made his most frequent and probably most elaborate efforts in the
Senate, and for the further reason that in the heated atmosphere of
the time his opinions as expressed and the moderation of his course
were, by some, supposed to imply indifference to the interests of
his section. Time and disaster are not unfrequently necessary to
vindicate true wisdom.
He was as averse to the details of revenue and finance as Charles
James Fox, and could probably have united with that statesman in
the declaration that he had never read a treatise on political
economy. But on all subjects pertaining to general policy, or to the
history, jurisprudence, or Constitution of the country, he commanded
a deference yielded to scarcely any other individual, after the
withdrawal of Mr. Webster; and as a speaker and writer of English,
according to the testimony of Judge Butler, of South Carolina, he
had no peer in the Senate, save Webster.
He delighted in repeating the rule for the construction of the
Constitution, which he had heard enunciated by Judge Marshall in the
Circuit Court for North Carolina. "The Constitution of the United
States," said he, "is to be construed not _strictly_, not _loosely_,
but _honestly_. The powers granted should be freely exercised to
effect the objects of the grant, while there should be a careful
abstinence from the assumption of any not granted, but reserved."
With this simple rule for his guide, with an innate love of truth
and wonderful perspicacity in its discernment, with an ethics which
permitted no paltering in deference to the authority or suggestion
of faction, his arguments on constitutional questions were models
of moral demonstration. Such was the confidence reposed in his
accuracy and candor on questions of this nature, that his opinions
were sought, for practical guidance, alike by friends and opponents.
And such was the personal favor and kindness entertained towards him
by all his associates that at the expiration of his term the rare
compliment was paid him of expressing regret at his departure by an
unanimous vote of the Senate.
After ceasing to be a Senator he held, until the commencement of
the late calamitous war, the place of one of the Regents of the
Smithsonian Institution. In his professional visits to Washington,
until the interruption of intercourse by that dire event, and in
all his correspondence with public men, he never departed from
that course of moderation and peace on the exciting subject of the
times which had characterized him as a Senator, joined heartily
in the movement of his old Whig friends for the organization of a
Constitutional Union party to abate the violence of faction which
was too surely tending to disunion, and to make an appeal to the
people to rescue the country from the impending peril. The result of
this movement was the nomination of Bell and Everett for the first
offices of the government; and Mr. Badger accepted the nomination
for Elector on this ticket, and visited various parts of North
Carolina, addressing the people in its support. In these addresses,
with the frankness which belonged to his nature, he freely admitted
that there was a strong probability of the election of Mr. Lincoln,
not merely from a division of votes among three other candidates,
but from the strength of his party in the Northern States, founded
on the principle of opposition to slavery; and he charged, that in
that event, it was the design of a large portion of the supporters
of Mr. Breckinridge to attempt to destroy the Union by the secession
of the Southern States, and that there was reason to believe his
defeat and the election of Mr. Lincoln were desired by this latter
class, because of the opportunity it would afford for a dissolution
of the Union, a purpose which they had long cherished. While,
therefore, he advocated the election of Mr. Bell, he conjured the
people, no matter who might be elected, to acquiesce in the decision
and give no countenance to secession. Although, with the exception
of a small faction, the people were averse to disunion, the majority
were persuaded that this was an overstatement of the case, and cast
their votes for Mr. Breckinridge, as they usually did for the party
nominee.
When the election was past, and the proceedings which immediately
followed in other States verified Mr. Badger's anticipations,
the people began to turn to him, and those of like opinions, for
guidance in the future. And, to persons in distant parts of the
Union, it is, no doubt, a matter of mystery how he, with all his
antecedents in favor of Union, became involved in war against the
Government of the United States. The case of Mr. Badger, in this
particular, is the case of at least three-fourths of the people
of the State (for they relied upon his counsels for their action
quite as much as upon those of any other individual) and requires
a word of explanation. Notwithstanding the long and acrimonious
disputations which had been carried on in Congress and at the
hustings, and the sentiments declared in opposition to slavery by
Mr. Lincoln and his supporters, Mr. Badger maintained that his
election afforded no sufficient cause for a resort to revolution--as
to the right, claimed, of a State to secede, he had never for a
moment believed in it or given it the least countenance--that
the accession of such a party to power would require increased
vigilance over the rights and interests of the South; but that the
majority in Congress was not lost to us, if the members from all
the Southern States would remain and be faithful, and that the
judiciary was open to any just complaint, even if the Executive
should attempt aggression. After every State south of North Carolina
to the confines of Mexico had adopted ordinances of secession, the
people of this State rejected a proposition to call a convention to
consider the question.
But when Virginia, our neighbor on the northern frontier, also
withdrew, and Tennessee on the west had taken measures for the
same object, when war had been actually begun, no matter by whose
rashness or folly, and the only alternatives presented were in the
choice of the side we should espouse, considerations of national or
State interest, safety and necessity (such as are not unfrequently
forced upon the decision of neutrals by the conduct of belligerents
not connected under the same government) at once occurred, and were
obliged to be weighed with the obligations of constitutional duty.
Our borders were surrounded on all sides, except that washed by the
ocean, by seceded States. Our youth must go forth to battle with
or against these States. The Union we had so long and so sincerely
cherished, was a Union in its integrity; and next to that, and as
a part of it, was a Union with neighboring States, in which were
our kindred and most intimate friends, and identical institutions.
Slavery, whatever may be thought of it elsewhere or now, constituted
more than one-half of our individual and public wealth. It had paid
our taxes, built our railroads, reared our seminaries of education
and charity, and was intimately connected with the order and repose
of our society. Withal, in the acrimony of a long quarrel, its
maintenance had become a point of honor. In the actual posture of
affairs, which promised to continue while the war lasted, instead of
fifteen States in which slavery existed, whose Representatives were
to maintain a common interest in the halls of Congress, there were
to be but three, or at most, four, and all these, except our own,
with a minor interest in the system. A civil war which threatened to
be sanguinary and protracted, kindled avowedly for the protection of
slavery, was not likely to end in the defeat of the insurgent States
without the destruction of the institution in them, and after no
long time, in the adhering States, also. Though far from approving
the course of the recusant States, victory on the side of those who
held the reins of government could not inure in benefit, nor without
serious disaster, to us.