The Constitutional Position

On Wednesday the thirteenth of February, 1861, I sat in the gallery of the House of Delegates at Richmond and listened to my Province argue about whether it was still my Province.

I had a seat in the front row, which was a kindness of the doorkeeper’s, who had known my father; the gallery was full, and men were standing in the doorways and along the back wall, and some of the ladies had brought their sewing. Below us the delegates sat at their desks in the long room with the great windows, and the snow outside put a white light on everything, so that the whole chamber looked like an engraving of itself. The Speaker was in his chair. The clerk was reading a paper from the assembly at Savannah, which had been reading papers from the assemblies at Charles Town and Raleigh and Montgomery, and when he had finished there was a resolution, and then a speech, and then another speech, and in the four hours that I sat there nothing at all was decided. I have sat since through a good many debates, in two Parliaments, and I have never again heard so much said so well to so little end.

Beside me in the gallery, explaining it all in my ear, was Philip Lightfoot, who had been in my class at the Point, and who had resigned his commission three years before to read law in Richmond, and who was, I think, the cleverest man I have ever been fond of. I shall have a good deal to say about him in this account, Sir, and some of it Your Majesty may have heard from other mouths, so I had better say now, at the beginning, that I was fond of him then and am fond of him still, and that nothing I set down here about what he did is said against him.

He explained the constitutional position to me in the gallery. He did it very well; he had been explaining it for a month, in the coffee houses and the newspapers, and he had it by heart. The duty of a polity’s obedience, he said, runs to the Crown, and not to anybody else. The Crown acts through ministers who hold the confidence of the Commons. But a ministry which has lost the moral capacity to govern a third of the country has forfeited the claim to be the Crown’s ministry at all, whatever the arithmetic of the Commons may say; and a polity that refuses such a ministry’s authority is not leaving the Union, or rebelling against the King, but holding to the King against men who no longer have any right to speak in his name. “We are not going anywhere, Harry,” he said. “That is the whole point. We are staying exactly where we are. It is New Westminster that has gone.”

I said that it sounded very well, and asked him who was to decide when a ministry had lost its moral capacity. He said that the polities would decide. I asked which polities, and he laughed, and pointed down at the floor of the House, where a delegate from the mountains beyond the Blue Ridge was on his feet saying, at length and with his hat in his hand, that his county would decide for itself and had already decided, and that if Richmond meant to refuse New Westminster then Richmond might find that it was refused in its turn, nearer home. The Tidewater benches shouted him down. Philip said, “That, I grant you, is the difficulty.”

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But I have left something out, Sir, which a man ought not to leave out of an account like this, and I must go back for it. I had been married since the summer.

My wife was Anne Pell, the only daughter of Mr Hiram Pell, who sat in the Commons for St Mary’s City, in the Province of Maryland, and who was, I suppose, the most thoroughly unremembered man ever to have changed the constitution of a country. Your Majesty will not have heard of him. Hardly anybody has, outside the lawyers. For most of the ten years before the Act of 1859 he was chairman of the standing committee of the Commons on the state of the representation, and it was his committee’s reports that gave the figures in the schedule of the Act, the list of boroughs that were to cease returning members at the next dissolution; and he drafted a great part of the Act itself, and gave evidence on it before the House over and over again, and saw it through. He never held office. He never wanted to. He sat for St Mary’s City, which had been the first capital of Maryland and had been more or less abandoned when the government moved to Annapolis a hundred and sixty years before, and which returned two members to the Commons on the votes of twenty-two electors. There were a hundred and six people living in it altogether. His own committee’s schedule put it near the top of the list.

I first heard his one remark on the subject at his own table, before I had heard it quoted anywhere else, and before I had any idea that it would be quoted. Somebody asked him, over the port, whether it had not been hard to draw up a schedule that abolished his own seat. He said that a member who could not vote against his own seat had no business inquiring into anybody else’s, and passed the decanter. That was all he ever said about it, in my hearing or in the House.

I met them in the summer of 1858, on the department’s business. I had been sent down the river that June to sound the channel off the mouth of the St Mary’s, where the Potomac is seven miles wide and very nearly a sea, and there was nowhere to lodge for twenty miles but the Pells’ farm above the old town, and Mr Pell, who was at home for the recess, took me in as a matter of course, because he took everybody in. His wife had been dead ten years. His daughter kept his house, and his accounts, and, as I learned in the first week, his committee’s papers; it was she who had copied the reports of 1856 and 1857 in their fair hand, and she knew the population of every borough on the schedule as other young women know the words of songs. I came down to breakfast on the third morning and found her checking a column of electors against the returns with a ruler, and she looked up and said, “Lieutenant Ashton, do you know that Joppa returns a member to the Commons on sixteen votes?” and I said that I had not known that, and she said that nobody did, and that it was a scandal, and went back to her column. I think I decided then. It took her rather longer.

We were married at St Mary’s in June of 1860, in the little brick church by the river where her mother was buried, by a clergyman who had baptised her, before her father and my mother and my brother and a good part of St Mary’s County. The Act had been law for a year. Her father was sitting out the last session of the Parliament that the Act would end; he would lose his seat at the dissolution, exactly as his own schedule provided, and the twenty-two electors of St Mary’s City would go into the county with everybody else, and he had told them so, and they had returned him once more anyway, out of what I believe was a mixture of loyalty and curiosity to see whether he would really do it. He did. I have never known a man less troubled by having done the right thing.

I set this down because Your Majesty should understand what I was married into, and what my wife knew. She knew why the Act mattered, better than I did and better than most of the men who voted for it. When it passed, the slaveholding polities lost the thing that had protected them since the Charter, which was the votes of a great many little boroughs that had been made to vote as their landlords wished. After the dissolution they would be a minority in the Commons, and they would be one for good. Several of the men who afterwards sat at Charles Town in South Carolina had said so on the floor of the House in 1859, and had said what they meant to do about it. My wife had copied out the figures that made it true. She was twenty-three when we married.

There is one more thing, and I will say it now and not leave it to be found. Mr Pell owned the land his family had farmed since the first Lord Baltimore’s time, and he owned nine people who farmed it. My wife had grown up among them as I had grown up among ours. That was Maryland, and that was Virginia, and that was very nearly every family I knew in either.

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We went to Marlfield for Christmas.

My mother liked Anne, which surprised everybody, and most of all my mother. I think it was because Anne did not try to make her like her; she asked about the house and the river and my father, and listened to the answers, and helped with the Christmas accounts without being asked, and found two mistakes in them, and said so. My mother said afterwards, to me, alone, “She will do. She is not a Virginian, but she will do,” and I knew that this was the highest praise in her gift.

Edmund had his company out twice a week now, on the courthouse green, and had got the subscribers to buy a second set of rifles, and the old captain had retired from the speeches in his favour. He was in his green jacket and very handsome, and he talked about the winter’s news at every meal, and most of it was news from the south. The assembly at Charles Town had resolved; the assembly at Savannah was resolving; there was to be a meeting of the polities, Edmund said, to settle what was to be done together, because none of them could do it alone. He said “we” when he spoke of it, and nobody at the table corrected him, and I did not either. Anne looked at me once across the table, when he said it, and I looked at my plate.

Daniel came home for the week, as he did every year. I saw him on Christmas Eve when my mother gave out the presents, and he was civil to Anne and to me, and asked after my health, and I asked after his, and that was all. On the first day of the year I renewed his hire to the works for 1861, by letter this time, because Mr Coakley had written to say that he would be glad to save me the journey; he enclosed the bond, and I signed it at my mother’s desk and sent it back by the post. Anne was in the room. She watched me sign it and did not say anything, and when I had sealed it she said, “Does he want to go back?” and I said that I supposed he did, that it was the best place for a man of his skill in the county, and that he had never said otherwise. She said, “Have you asked him?” I said that it was not the kind of thing one asked. She looked at me for a moment longer, and then went back to my mother’s accounts, and I put the letter in the bag for the post.

I have the copy of that bond as well, Sir. It is in the box with the other.

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The news in January was all of Alabama. Its convention had met at Montgomery and had voted, by sixty-one votes to thirty-nine, to refuse the ministry’s authority, and some of the delegates who had voted against it had refused to sign what the majority had adopted, and had gone home. Then, at the end of the month, Mississippi’s convention at Jackson had voted on the same question and had lost it by fourteen votes, and had gone home too, and Mississippi stayed where it was; and the men at our widow’s table in New Westminster, when I got back there, could talk of nothing else, because if Mississippi would not go then perhaps nobody need go, and if Alabama had gone then perhaps everybody must.

It was a very strange winter in the capital. Your Majesty’s ministry, by which I mean Mr Lincoln’s, did nothing that anybody could see, and was abused for it from both sides at once. The men from the south said that the ministry was preparing to coerce them; the men from New England said that the ministry was preparing to give way; and as far as I could tell from the Chief Engineer’s office, which was in a position to know whether anybody was preparing anything, it was doing neither. It conceded nothing and it threatened nothing. It sat. Philip Lightfoot said, when I put it to him in Richmond, that it was the conduct of a government that had no idea what to do. I thought then that he was right. I have thought since that it was the conduct of a government that knew exactly what it would do if it had to, and did not mean to do it one hour before it had to, and that the two look identical from outside until the hour comes.

In February the polities that had voted sent delegates to Montgomery, and the delegates met there as a congress, the first of what was to come, to settle what they would do together. They could not settle it. Philip had friends among them and had the news by every post, and he told me what they were quarrelling over, in the coffee room of the Exchange Hotel, on the night before I went to the gallery, with the air of a man reporting a family argument that he expected to come right. They could not agree, he said, whether what they wanted was to force a change of ministry in New Westminster, or to found something new of their own. They could not agree whether they were asserting their loyalty to the Crown or repudiating it; most of them said the first and some of them meant the second. They could not agree who was to command, or where they were to sit, or what was to become of the western territories. And they could not agree, most bitterly of all, about which polity was to pay for any of it. “But they will agree,” he said, “because they must. That is what a constitution is, Harry. It is what men agree when they must.”

I said that I had always understood that it was what men agreed when they could have done otherwise. He said that I had been at the Point too long.

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I had come to Richmond on the department’s business, which was a matter of the channel works on the James below the city, which the department and the Province shared, and of some drawings of mine from the years when I had served on the southern forts, which the Province’s engineers wished to see. I should say a word about those years, because they matter later. When I left the Point in 1854 I spent a year in the department’s drawing office, which is how I came to draw the waterworks at Harpers Ferry, and then I was sent south, and for three years I was on the coastal works: at Savannah, on the brickwork at Fort Pulaski; and before that at Charles Town in South Carolina, where for two years I had a hand in the masonry of the new fort on the shoal at the mouth of the harbour, Fort Sumter, which was being built then very slowly, and was still not finished. I knew those harbours. I knew where every channel ran and how deep, and where the forts’ walls were thick and where they were thin, and which of their guns could bear on which water. The Province’s engineers in Richmond were very civil to me, and very interested in the drawings, and very interested indeed in what I knew of the forts on the coast to the south. I gave them the drawings that were the Province’s business and kept the rest in my head, and I do not know to this day whether they noticed.

The business took two days, and I stayed the third to hear the debate, because Philip said that I must, that it would be history, and that I should be sorry all my life if I had not heard it. I have not been sorry. But I did not hear history. I heard a great many able men, most of them older than my father would have been, saying that they had been injured and that they would not bear it, and saying what they would do if they had to, and not doing it. They could not agree. They could agree that the ministry was intolerable, and that the Act of 1859 was a fraud on the slaveholding polities, and that the refusal to hand John Brown to Virginia was an insult and a sign; and every speaker said all three, and was cheered for it. But when a member from the Tidewater moved that the Province should send delegates to Montgomery, a member from the Valley moved to adjourn, and a member from the northwest said that if Richmond went to Montgomery his county would go to New Westminster, and there was a great deal of noise, and the motion to adjourn was carried by a handful of votes. Philip said that it was a check and not a defeat. I said that it looked very like a defeat to me. He said that I did not understand Virginia, which was a thing that Virginians had been saying to one another since the beginning of the world, and always meant that the other man understood it perfectly well.

We dined together that night. It was the last time we sat at a table on the same side of anything, though neither of us knew it. He asked me what I would do if it came to it. I said that I would do what my oath said. He said that my oath was to the King, and so was his, and that he meant to keep it; that the question was only who was the King’s enemy, and that it was a question on which honest men might differ. I said that I did not think it was. I said that I had sworn to Your Majesty and to the Charter, and that the Charter said who Your Majesty’s ministers were, and that it was not the Province of Virginia. He said, “Then we shall have to put it to the King himself, Harry, and let him say.” I said that the King would not say anything; that it was not his office to. He said, “Then his saying nothing will tell us something, will it not?” and raised his glass, and I raised mine.

I have thought a great deal about that conversation since, Sir, because of where it led us both. He was right that Your Majesty’s silence would tell everybody something. He was wrong about what.

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I walked back to my lodging that night by the long way, because it was clear and cold after the snow and I had drunk more of Philip’s wine than I was used to, and I wished to walk it off. My lodging was below the hill, near the river, and the long way took me down through the bottom of the town, along the street where the dealers had their rooms.

Richmond was then one of the largest markets in the Union for the selling of people, and the trade was done in a few streets near the river, behind the warehouses, in auction rooms and offices and yards with high fences round them, and in the jails where the people were kept until they were sold. It was not hidden. There was no reason to hide it. The dealers hung little red flags outside the rooms where there was a sale that day, and advertised in the newspapers, and their notices were posted on the walls among the notices for steamboats and dancing classes. I had walked through those streets before, on other visits, and not thought about them, as one does not think about the street where the butchers are. That night there was a sale still going on, late as it was, in a room with its door open on to the street and the lamps lit inside, because, I suppose, there had been more to sell that day than the day was long enough for.

I did not stop. I want to be honest about that, Sir, because it would be easy to write that I stopped and looked, and it would make me a better man in this account than I was on the street. I did not stop. I walked past the door at the pace I had been walking, and in the time it takes to walk past a door I saw what there was to see: a room full of men in greatcoats with their hats on, and a dealer on a little platform with a lamp beside him, and a woman standing on a block in front of him with a child holding on to her skirt, a child of about the age Daniel and I had been when he stood in the river and would not come out. The dealer was saying something about her being a good cook. One of the men in the greatcoats was asking whether the child went with her. I did not hear the answer. I was past the door.

I walked on to my lodging and went up to my room and sat on the bed in my coat. I thought about the debate, and about Philip, and about what the delegate from the northwest had said about his county going to New Westminster. I thought, I remember, that the whole question before the House that day had been whether a polity might refuse the ministry’s authority while remaining in the Union, and that the House had argued it for four hours, very ably, from every side, and that in all those hours not one member had said aloud what it was that the polity wished to be left alone to do. They did not need to. Everybody in the room knew. Everybody in the gallery knew. The woman on the block, I suppose, knew best of all.

I took the morning train north, and did not go back to Richmond until the war was over.