One Still, Strong Man

One Still, Strong Man* By Washington Gladden

In the winter of 1882, when I made my home in Columbus, there was living in premises adjoining my own, a venerable gen- tleman whom I soon came to know slightly, and in whose history I became profoundly interested. He had been, on one occasion, the chief actor in a drama of national importance. The story has not, so far as I know, been adequately told, and it is worth telling. My neighbor's name was Joseph Rockwell Swan. * * * He was born in Oneida county, New York, in the second year of the nineteenth century, and, with such educational equipment as a New York academy could give him, he came to Columbus in his twenty-second year, and entered the law office of his uncle, Gustavus Swan, who was later one of the Justices of the Supreme Court of the Nation. Five years after his admission to the bar, he was made prosecuting attorney of the county, and a few years later he was elevated to the Common Pleas bench, where he served with marked ability for eleven years. It was not a conspicuous position, but in the seven central counties of Ohio which formed his circuit he won for himself a great name by the dignity, probity, and thoroughness with which he discharged the judicial function. He had a genius for the disentanglement of legal snarls, and his discernment of what was just between man and man was keen and sure, and he made the law the servant and instrument of eternal righteousness. In 1850, Judge Swan was chosen a delegate to the Constitu- tional Convention by which was framed the organic law under which Ohio lived until recently. In this assembly his voice was influential. Four years later, upon a great wave of protest against the encroachments of the slave power in Kansas and Nebraska, he was chosen to the Supreme Bench of the State by a majority of eighty thousand. Respecting his service here, one who knew the State and the courts most intimately bears this testimony "On the bench of the Supreme Court he fully sustained his earlier repu- tation as a judge, and probably held as high a place in the estimation of the bench, the bar, and the public as has ever been reached by any of the dis-

*Copyright by The Outlook Company, New York. Reprinted in the Era, by permission, from The Outlook, Jan. 13, 1915.

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tinguished men who have adorned our judicial history. Wise, patient, firm, impartial, cautious, he never lost sight of the dignity of his high office, to which he brought unusual native vigor of mind, large stores of learning, un- tiring industry, and the most conscientious regard for the rights of litigants and the abhorrence of injustice and wrong."

Such is a meager outline of the early life of the quiet gen- tleman whom, as an octogenarian, I came to know a quarter of a century later. Judge Swan was never a man who blew his trumpet in the streets; he was shy, silent, retiring; he was fond of good books and quiet pleasures. By all his neighbors he was held in the highest regard. The literature of the law had been — enriched by him with several important volumes one of which, on the Powers and Duties of Justice of the Peace, passed through many editions, and has been one of the most useful law books ever written. But Judge Swan, when I knew him, had been for many years a private citizen. I have spoken of his election, in 1854, to the Supreme bench of the State, and of the conspicuous ability and fidelity with which he discharged, for the next five years, the duties of that office. The end of this single term of service was the end of the public life of Joseph Rockwell Swan. His retire- ment from office at this time brings before us the most important act of his life, and the most dramatic incident, as I see it, in the history of Ohio. The Fugitive Slave Law, with its drastic measures for the reclamation of bondmen and the punishment of those who aided their escape or refused to assist in their capture, had greatly exasperated the Northern people; the Dred Scott decision, that negroes had no rights, had still further inflamed the popular mind; and the impending conflict, so long dreaded, was evi- dently about to burst upon the land. In such a tension of the popular mind that party is wisest which carefully keeps within the law. Overt acts of lawlessness, no matter how pure may be the sentiment that prompts them, invariably put their perpe- trators in the wrong and leave the moral advantage with their antagonists. It was the clear understanding of this fact which characterized Lincoln's policy at the outbreak of the war. He forced the insurgents to take the initiative; there was no war until they began it; the defense of the Nation was then no longer a question with patriotic men. There were people at the North less wise; even in Ohio there were those who did not feel the force of these considera- tions. The Fugitive Slave Law was highly repugnant to their moral sense; when it commanded them to aid in the capture of fugitives, they declined to obey it; and in this they would have been justified, but only on condition that they quietly accepted the penalty of the law and went to jail. In that way any citizen

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has a right to protest against an iniquitous law. But some of these good people were unwilling to make their protest in this way. They determined not only that they would not obey the law, but that they would flagrantly disobey it; and then, when they were arraigned before the courts of the United States and condemned to imprisonment, they proposed to secure from the State courts judicial action nullifying the decisions of the Fed- eral courts and setting them at liberty. This was the policy which some very good men in Ohio undertook to initiate. It was at Wellington, I believe, that an assemblage of zealous per- — — sons I will not call it a mob rescued a fugitive slave from the officers of the law, the Federal officers. The two men who led in the rescue were arraigned before the District Court of the United States and convicted under the Federal statute, and sent to prison. A writ of habeas corpus was sued out, and they were brought before the Supreme Court of Ohio, in Columbus, which was asked to set them at liberty. The distinct proposition was that the State Court should override and annul the action of — the United States Court should assert the supremacy of State law over Federal law. This was what the Supreme Court of Ohio, with Judge Swan at the head of it, was asked to do. Judge Swan could have had no doubt that the overwhelming majority of the party which had elected him demanded this action. While the case was pending a great mass meeting was — held in the public square in Cleveland a meeting said to have been attended by ten or twelve thousand persons, over which Joshua R. Giddings presided, and at which many prominent Republicans spoke, all of whom were in favor of very drastic measures in resisting the execution of the law within the borders of Ohio. Governor Chase went to that meeting from Columbus, and very emphatically stated that if the Supreme Court of Ohio should order the liberation of the prisoners, the order would be enforced: that he would see that the United States officers were not permitted to rearrest the prisoners. A direct collision be- tween the authorities of the State and of the United States was thus explicitly threatened by the Governor of Ohio, and the situ- ation was extremely critical. No more eventful day ever occurred in the history of Ohio few days more eventful have occurred in the history of the Na- — tion than the day on which this case was brought to trial in the chambers of our Supreme Court in Columbus. A direct con- flict between the courts of the State and of the United States might easily have precipitated civil war. It is true that those who were demanding the release of the prisoners argued that nothing of this kind would take place ; that the United States authorities would simply let the prisoners go, and carry the case up to the Supreme Court of the United States

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for settlement there. This was a large assumption. What James Buchanan might have done we cannot confidently say, but if Andrew Jackson or Ulysses S. Grant or Grover Cleveland or Theodore Roosevelt or any other man with a backbone had been in the White House then, I do not think that he would have stood demurely by while the national authority was trampled under foot. A nation which permitted its sovereignty to be flouted in this way by local tribunals might as well have is obitu- ary written. To the judges on the bench in the Ohio State House it was a trying hour. Especially severe was the strain on the Chief Justice. On him rested the heaviest responsibility. So far as his personal fortunes were concerned, the way was clear for him. His term was just expiring; the Convention for his re- nomination would meet within a week. He knew what the great majority of his party demanded of him if he complied ;

with that demand his nomination was certain and his election would follow as a matter of course. If he failed to comply with that demand, his political doom was sealed. Would he not be justified in rendering a decision which leaders like Chase and Giddings and all the magnates of his party in the State, sup- ported by the rank and file, were passionately urging? Were — not these good men? Most certainly they were honest, cour- ageous, high-minded, philanthropic men. Why should he set his will and judgment against theirs? The humane sentiments, too, added their strength to the appeal. The Fugitive Slave Law roughly set these sentiments at naught. Judge Swan's heart rebelled as stoutly as any man's against the severities of that law. He had refused, as a lawyer, over and over to take the cases of slave-owners who had come to Columbus seeking to reclaim fugitives; he would earn no money in that way. In one rather exciting case which came before him while he was on the bench of the Common Pleas Court his decision had given a slave girl her liberty. Whatever he could do within the law to break the shackles of the slave, or to mitigate his woes, he was more than willing to do. And there is no question that he sympathized to the fullest extent with the feelings and convictions of the anti-slavery people. Why should he not yield to the dictates of this benign sentiment and to the overpowering demand of the people of Ohio, and set these prisoners at liberty? His personal fortunes, his desire for the esteem of his fellows, his humane feelings, all united to point out one path to him. Why should he not walk in it? There was nothing in the way except his oath of office, his reverence for law, his sense of duty. To a good many people these obstacles would have been slight; to Judge Swan they

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were insuperable. The organic law of the United States which he had sworn to obey and honor expressly declares: "This Constitution and the laws of the United States which shall be made in pursuance thereof * * * shall be the supreme law of the land: and the judges in very State shall be bound thereby, anything in the Constitu- tion or laws of any State to the contrary notwithstanding."

The supremacy of the Nation over the States is the primary condition of National existence. If the Nation enacts laws which are obnoxious to the people of any State, the people of that State have a perfect right to labor with others for the repeal of those laws; but they have no right to use the legislature or the courts of that State to nullify those laws. A nation in which this was tolerated would not be a nation; it would have re- nounced its sovereignty. Judge Swan knew that the attempt to — array the State Court against Federal Court to induce the former to reverse the decision of the latter, and to set free one — who had been imprisoned by the latter was nothing short of rebellion. The judicial nullification thus attempted was not different in principle from the legislative nullification which Calhoun had attempted in South Carolina. He had sworn to regard the Constitution of the United States as the supreme law of the land and the National authority as paramount over that of the States. He could not violate that oath, no matter how strongly self-interest might urge, or love of popularity prompt, or humane sentiment persuade. It was a bright morning in May, 1859, when the decision was to be rendered in the Supreme Court chamber. It might have been delayed a few days, until after the meeting of the Repub- lican Convention, but the Judge hastened its preparation; he was determined that the people who had the question of his re- nomination before them should act with their eyes open. From all parts of the State men had gathered at Columbus to hear the decision; it was felt that a crisis was at hand. That a rupture migh occur between the State and the Nation was considered possible. It was even reported in the court-room, though there seems to have been no foundation for the rumor, that a Federal gunboat had been ordered to Cleveland to assist in maintaining the authority of the National Government. A day or two before the decision the Cincinnati Gazette, a Republican organ, had said this:

"Will there be a collision of the State and the Federal authorities? And if so, what ought good citizens to do? To the first question we can only answer that if the Supreme Court of the State orders Bushnell and Langston to be brought before it at Columbus, or even to be released, it is the duty of the executive to see that order obeyed. And at Cleveland, in the presence of the mass convention, Governor Chase expressed himself very decidedly on this point. He will do his duty. What the Court will decide,

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however, we cannot undertake to say, nor how far the Federal officers, cit- izens of our own State, would undertake to resist should the decision favor the prisoners. But, should a collision occur, every good citizen must de- cide for himself whether he ought, in this case, to go with the Federal or with the State authorities. The cliampions of a centralizing federalism will back up the pretensions of the Federal Executive. Genuine State-rights men, anti-consolidationists, and friends of genuine popular sovereignty will maintain the rights of the State against a crushing central despotism. The great man of our people will undoubtedly stand by the State authorities." (The italics are mine.)

On the other hand, the Statesman, published in Columbus, the Democratic organ, assuming that the Court would discharge the prisoners, had this to say

"And what then? We apprehend the United States marshal will at once taken Bushnell and Langston into custody and proceed to carry out the orders of the United States District Court. Governor Chase must come to the rescue, and a collision must at once ensue. Of the consequences to follow in case this contingency arises, we shall not speak. The Democratic party of Ohio and all Union-loving men will be found on the one side and the treasonable squad of abolitionists and disunionists on the other. The law of Congress will be sustained and traitors to the country, to law, govern- ment, and order, will be overwhelmed."

This is the kind of talk which was common in the newspa- pers and on the streets. With an atmosphere superheated by such discussions the Supreme Court room was filled on this May morning. How easy would it be for a spark to produce an ex- plosion! Is it any wonder that the air quivers with suppressed excitement when the Chief Justice begins to read his decision? The suspense is not protracted. The drift of the opinion is soon indicated. The clear, strong sentences, going straight to the heart of the issue, uphold the authority of the Nation and deny the power of the State to resist and defy the Central Gov- ernment. Let me quote a few of these weighty words "With respect to the boundary of jurisdiction between the Federal and State Government, I do not desire to say anything but this: that when Congress has undertaken to enforce by legislation a right guaranteed by the — Constitution itself after the power has been recognized by all the highest judicial tribunals of the Union before whom the question has been pre- sented in the country for sixty-six years; and if, superadded to these cir- cumstances, the Federal tribunals, in cases rising under the Constitution, re- — peatedly hold that Congress has the power it is too late for the courts of Ohio upon their private judgment, to deny the power. "The sense of justice of the people of Ohio has been shocked by some of the unjust provisions of the Fugitive Act. It is not the authority of Congress to legislate that they deny, but the abuse of the power. That abuse is to be remedied by Congress; and if the power to legislate is de- nied the question can be put an end to by repeal. It is the only Constitu- tional mode left. The other alternative is internecine war and resistance of our National Government. "For myself, as a member of the Court, I disclaim the judicial power of disturbing the settled construction of the Constitution of the United States

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as to legislative authority of Congress upon this subject, and must refuse the experiment of introducing disorder and governmental collision."

The decision closes with a few words which are likely to he as memorable as any in the history of Ohio jurisprudence "As a citizen I would not deliberately violate the Constitution or the law by interference with fugitives from service. But if a weary, fright- ened slave should appeal to me to protect him from his pursuers, I might momentarily forget my allegiance to the law and the Constitution and give him a covert from those who were on his track. There are, no doubt, many slaveholders who would thus follow the instincts of human sympathy. And if I did it, and was prosecuted, condemned, and imprisoned, and brought by my counsel before this tribunal on a habeas corpus, and was then per- mitted to pronounce judgment on my own case, I trust I should have the moral courage to say before God and my country, as I am now compelled to say, under the solemn duties of a Judge, bound by the Constitution and the law, 'The prisoner must be remanded*'*

Two of the judges concurred with the Chief Justice, two dissented. The case was settled by a bare majority of the Court. But it was settled. Ohio was not to be launched into re- bellion against the United States Government. The National integrity, so powerfully assailed, was successfully defended. I have spoken of Judge Swan's part in the case, but I do not wish to ignore the courage and firmness of those who stood with him. The reason why special emphasis is placed on his action is not merely that he was the Chief Justice and the leading member of the Court, not merely that he wrote and delivered the opinion, but that he was the only member of the Court whose personal fortunes were then at stake. Politically, I be- lieve all the Judges were attached to the same party. That the two dissenting Judges were conscientious and honorable men I do not for a moment question, but it is a little easier to go with the current than to stem it, and the feeling in favor of the re- lease of the prisoners ran high in that court-room and through- out the State. Consider what would have happened if Judge Swan, to say nothing of the others, had yielded to personal ambition and pop- ular pressure. The prognostications of the newspapers, already quoted, indicate the probable consequences. The Governor would have undertaken to enforce the decree of the Ohio Court. He had publicly pledged himself to do so, and he would not have hesitated. I know that he was offered the loan of money necessary to mobilize the militia for such a conflict; I do not know that he entertained the overture, and I cannot find any record of military orders given in preparation for such an emer- gency. I do not think that the thing ever got so far as that. But the distinct declaration that the decree of the Supreme Court would be enforced is not questioned. In such a case the Pres-

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ident, if the spirit of a man had been in him, must have insisted on the enforcement of the judgment of the District Court, and the State of Ohio would have found itself in rebellion against the National Government. How serious this conflict might have been no man can say. But this much is certain Ohio, by her own rebellion against the :

General Government would have been forever estopped from complaining, a year and a half later, of South Carolina when she rebelled. If the Northern States had begun to defy the Federal authority in the manner here proposed, they would have had no case against secession two years later. For it was less than two years after this that Ohio was sending regiments to Washington to put down with cannon and bayonets the very doctrine of States' rights which her Supreme Court was now besought to affirm. Suppose that Ohio had put herself in the wrong on this question. Could Ohio have sent regiments to Washington? Other Northern States (might have followed Ohio's example. In any case such an outbreak would have par- alyzed the arm of the Nation when it undertook to deal with Southern secession. The great body of conservative Union men at the North would have said, in reply to Mr. Lincoln's first call for troops: "You radicals began this war; now you can fight it out." The irrepressible conflict was hastening on; no power could stay it; but with such acts as those which the eager populace demanded of our Ohio Court we should have disabled ourselves on the very threshold. What the consequences of such a course would have been it is useless to conjecture; but it might easily have been a divided North and a dismembered Nation. That Ohio was kept from plunging into the current which was flow- ing directly toward this cataract of disaster was due mainly to the firmness and strength of one man, whose just mind could not be influenced by ambition nor swayed by clamor, "one still, strong man in a blatant land." Of course the Convention of his party threw him overboard the next week without a sign of relenting; his public life was ended. It had fallen to his lot to render his State and his country such a service as few men have ever been able to ren- der; his recompense was to be ostracised and banished from power. It would be hard, I dare say, to find a respectable law- yer in Ohio today who would deny that his decision was exactly right, but I doubt whether many of the citizens of the State have ever been fully aware of the tremendous political blunder — — worse, almost, than a crime from which his probity deliv- ered the commonwealth. I think that a monument is due him. There is no place in Capitol Square too choice for it. Let it stand there in bronze,