CHAPTER 17
POLISHED TREASON

The dome of the Capitol was not yet half finished. It seemed to John Fomey,
Secretary of the Senate, that the home of the national legislature stood out on
the Hill like a tooth that had been drilled but not yet filleda great, empty
molar with raw nerve exposed.
Fomey took up the bill referred by the Judiciary Committee to the Senate
acting as a Committee of the Whole, to be considered that morning: S. 33, "A
bill to suppress Insurrection and Sedition."
Henry Anthony, senator from Rhode Island and owner of its Providence
Journal, was the presiding officer that morning. At a nod from the senator,
Fomey rose, cleared his throat, and took a sip of water. Most of the senators
thought he was sipping gin, which he sometimes did on a dull day with
nothing to read but interminable amendments, but he never linked arms with
John Barleycorn on historic occasions.
Which this session surely would be. The bill under consideration was noth-
ing short of nationwide martial law. Stung by the defeat at Bull Run, the
Republican war hawks proposed to empower military commanders to seize
and hold as prisoners any civilians "aiding or abetting" the rebellion, to
ignore the civil courts and to try them by court-martial. The military com-
mander could execute those found guilty.
The legislation superseding the authority of civil courts, which also re-
quired loyalty oaths of all suspects, struck Forney as kind of sweeping, but
the Senate had already approved a great many stunning actions undertaken
by the President. What made this morning's session interesting, potentially
dramatic, was the rumor that there was to be a clash between the two most
articulate, and most diametrically opposed, men in the Senate: Breckinridge
and Baker.
That packed the galleries. As Forney droned his way through the ten sec-
tions of the bill, he glanced up at the press section, which was jammed.
Forney nodded to Adams Hill, of the New York Tribune, and his correspon-
dent, George Smalley, in whose arms Forney had gratefully passed out after a
tenth round of drinks the night before. The section reserved for important
visitors was packed as well: guests included the entire Blair family, it seemed,
from the old man to his daughter Lizzie; Addie Douglas, the senator's
widow, was sitting with her cousin Rose Greenhow, presenting what Forney
knew to be the most socially prominent pair of unattached women in Wash-
ington. One of the President's secretaries, Hay, whom Forney had found to be
a bit of a snob with his college-boy airs and graces, was accompanying a
woman related to the President's wife who was living at the Mansion. Next to
them, Anna Ella Carroll, the Maryland political lady Forney knew to be
Lincoln's agent in keeping Maryland's Governor Hicks in line for the Union.
At the last moment, Kate Chase had made her entrance with Lord Lyons.
Breckinridge had asked the president pro tern for a delay to allow Baker to
arrive, and another piece of legislation, to authorize a national loan, had been
taken up first. Still no Ned Baker. It was assumed his military duties in the
field had taken priority, and the insurrection-sedition bill was brought up.
Senator Lyman Trumbull of Illinois, a Lincoln ally and the bill's author, then
spoke in its favor. "Let me tell you, senators," he assured his colleagues, "it is
no new feature for courts-martial in times of rebellion, insurrection, and civil
war to bring men before them, sentence them, and shoot them, without the
intervention of any kind of grand or petit jurors."
The Chair recognized Breckinridge of Kentucky. Forney wondered why
this man kept coming back every day to ram his head against the wall of
resentment. The giants of the South had left the Senate and were creating
their own government in Richmond. With no deep-Southern votes in the
United States Senate to restrain them, the remaining senators could not only
pass legislation the South had blocked for generations, but take up measures
to crush the rebellion and punish the rebels.
Only Breckinridge remained behind, a voice from the Senate's divided past,
seeking vainly to obstruct the near-united will of the people of the North. The
traditions of the Senate gave him full hearing, and with Anthony in the Chair
this morning he would have no difficulty gaining recognition, but rumblings
had been heard that more than a limit to patience was involved: the Ken-
tuckian inveighing against war was seen to be speaking for the South, and in
wartime such advocacy smacked of a high crime.
The word "treason" was muttered but never spoken on the Senate floor.
Breckinridge, even when accusing Wade and Chandler of plotting to precipi-
tate the war in order to abolish slavery, took care not to step beyond the
limits of toleration. The week before, the sentiment whipped up by Breckin-
ridge in Kentucky had caused his fellow senator from Kentucky, the vener-
able and strongly pro-Union Crittenden, to propose a resolution limiting the
purpose of the war: "Resolved, that this war is not waged for any purpose of
overthrowing or interfering with the rights or established institutions of any
states, but to preserve the Union with all the dignity, equality, and rights of
the several states unimpaired." Crittenden's anti-abolition compromise had
passed, thirty to five, to the outrage of radical Ben Wade and his water-
carrier, Henry Wilson, who called it "a complete surrender to the demands of
slave propagandism." The passage of such a resolution, mollifying the loyal
slave owners of the border states, proved that the presence of Breckinridge
still had an effect.
The presiding officer recognized the junior senator from Kentucky. "This
bill, sir," said Breckinridge in a mild tone of voice, "provides for the destruc-
tion of political and personal rights everywhere, and would operate as harshly
on nonseceded as seceded states. I wish it were published in every newspaper
in the United States. I believe if that were done, it would meet the universal
condemnation of the people."
Orville Browning, the junior senator from Illinois and a man Forney knew
to be nearly as intimate a friend of the Lincolns as Baker, asked if the speaker
would yield for a moment, which Breckinridge did.
"The senator from Kentucky has assailed the conduct of the Chief Execu-
tive in the chamber for the past week with a vehemence that borders on
malignity," said Browning. "I would caution him to speak with respect of our
commander in chief at such a perilous moment in our nation's history."
Breckinridge would not accept that. "I have criticized, with the freedom
that belongs to the representive of a sovereign state and the people, the con-
duct of the Executive. Towards that distinguished officer, I cherish no per-
sonal animosity. I deem him to be personally an honest man, and I believe
that he is trampling on the Constitution every day, with probable good mo-
tives."
"Your sarcasm does you no honor, Senator."
Breckinridge bridled. "I am quite aware that all I say is received with a
sneer of incredulity in this body. But let the future determine who was right
and who was wrong. We are making our record here; I, my humble one, amid
the aversion of nearly all who surround me. I have forgotten what an approv-
ing voice sounds like, and am surrounded by scowls."
Forney heard a sound in the rear and looked toward the eastern entrance to
the chamber. Senator Edward Baker, in the blue uniform and fatigue cap of a
United States Army colonel, dust-covered from hard riding, entered and
walked down the aisle to his seat. He laid his officer's sword on his desk and
sat down, the clanking heard by everyone in the room. Forney was ambiva-
lent about the appearance of Baker: glad to have a champion of the President
who could take on Breckinridge in debate, uncomfortable about his appear-
ance on the Senate floor in uniform. The soldier-senator made martial law, an
abstract term, seem vividly martial.
"What is this bill," Breckinridge continued, warming to his task, "but
vesting first in the discretion of the President, to be by him detailed to a
subaltern military commander, the authority to enter the commonwealth of
Kentucky, to abolish the state, to abolish the judiciary, and to substitute just
such rules as that military commander may choose. This bill contains provi-
sions conferring authority which never was exercised in the worst days of
Rome, by the worst of her dictators."
"That son of a bitch is asking for it," Forney heard Ben Wade mutter.
"I have wondered why this bill was introduced," said Breckinridge. "Possi-
bly to prevent the expression of that reaction which is now evidently going on
in the public mind against these procedures so fatal to constitutional liberty.
The army may be used, perhaps, to collect the enormous direct taxes to come
to finance the war."
Forney held his breath; he wished he had gin in the water glass. The
Kentuckian was sticking this bill down Northern throats.
"Mr. President," Breckinridge told the Chair, "gentlemen here talk about
the Union as if it was an end instead of a means. Take care that in pursuing
one idea you do not destroy not only the Constitution of your country, but
sever what remains of the federal union."
"A question," said Senator Baker.
"I prefer no interruptions," said the Kentuckian; "the senator from Cali-
fornia will have the floor later."
"Oregon," said Baker.
"The senator seems to have charge of the whole Pacific coast," the Ken-
tuckian said with a small smile, withdrawing his deliberate mistake, which
Forney presumed was intended to cause some dissension in Western ranks.
"Oregon, then." He became deadly serious again. "I desire the country to
know this fact: that it is openly avowed upon this floor that the Constitution
is put aside in a struggle like this. You are acting just as if there were two
nations upon this continent, one arrayed against the other; some twenty mil-
lion on one side, and some twelve million on the other as to whom the
Constitution is naught, and the rules of war alone apply.
"The 'war power,' whatever that means, applies to external enemies only. I
do not believe it applies to any of our political communities bound by the
Constitution in this association. Nor do I believe that the founders ever con-
templated the preservation of the Union of these states by one half the states
warring on the other half.
"Mr. President, we are on the wrong tack; we have been from the begin-
ning. The people begin to see it. Here we have been hurling gallant fellows on
to death, and the blood of Americans has been shedfor what? To carry out
principles that three fourths of them abhor; for the principles of despotism
contained in this bill before us."
Senator Baker rose in his seat and remained standing, ostentatiously but
patiently waiting his turn to speak.
"Nothing but ruin, utter ruin, to the North and South, to the East and
West, will follow the prosecution of this contest," the Kentuckian continued,
his outdoor stump-speaker voice growing in volume, resonating throughout
the room like the doom he was prophesying. "You may look foward to innu-
merable armies. You may look forward to raising and borrowing vast trea-
sures for the purpose of ravaging and desolating this continent. At the end,
we will be just where we are now. Or if you are gloriously victorious, and
succeed in ravaging the South, what will you do with it? Can you not see
what is so plain to the world, that what you insist on seeing as a mere faction
is a whole people, wanting to go its own way?
"To accomplish your purpose, it will be necessary to subjugate, to conquer,
ay, to exterminatenearly ten million people! Does anybody here not know
that? Does anyone here hope vainly for conquest without carnage?"
His voice ceased its cannonade and dropped to a tone of reason. "Let us
pause while there is still time for men of good will to draw back from hatred
and bloodshed. Let the Congress of the United States respond here and now
to the feeling, rising all over this land, in favor of peace."
He took his seat. Every eye in the chamber swung to Senator Baker.
"A few words as to the senator's predictions," Ned Baker began, as quietly
and conversationally as his opponent had begun. "The senator from Ken-
tucky stands up here in a manly way, in opposition to what he sees as the
overwhelming sentiment of the Senate, and utters reproof, malediction, and
prediction combined. Well, sir, it is not every prediction that is prophecy.
"What would have been thought," he went on, still conversationally, "if in
another capitol, in another republic, in a yet more martial age, a senator as
grave, not more eloquent or dignified than the senator from Kentucky, yet
with the Roman purple flowing over his shoulders, had risen in his place,
surrounded by all the illustrations of Roman glory, and declared that advanc-
ing Hannibal was just, and that Carthage ought to be dealt with in terms of
peace?
"What would have been thought," Baker's voice rose, "if, after the battle of
Cannae, a senator there had risen in his place and denounced every levy of
the Roman people, every expenditure of its treasures, and every appeal to the
old glories?"
Baker's rhetorical question was answered by a senator near himFes-
senden of Maine, Forney thoughtequally versed in classical history. "He
would have been buried from the Tarpeian Rock!"
"Yes, a colleague more learned than I says that the speaker of such words
would have been hurled from the Tarpeian Rock. It is a grand commentary
on the American Constitution that we permit such words as spoken by the
senator from Kentucky to be uttered here and now.
"But I ask the senator, what, save to send aid and comfort to the enemy, do
these predictions of his amount to? Every word thus uttered falls as a note of
inspiration upon every Confederate ear. Every sound thus spoken is a word
and from his lips a mighty wordof kindling and triumph to a foe that
determines to advance.
"For me, amid temporary defeat, disaster, disgrace, it seems that my duty
calls me to utter another word, and that word is, war! Bold, sudden, forward,
determined war, according to the laws of war, by armies and by military
commanders clothed with full power, advancing with all the past glories of
the Republic urging them on to conquest.
"I do not stop to consider whether it is 'subjugation' or not. The senator
animadverts to my use of 'subjugation.' Why play on words? We propose to
subjugate rebellion into loyalty; we propose to subjugate insurrection into
peace; we propose to subjugate Confederate anarchy into constitutional
Union liberty.
"And when we subjugate South Carolina, what will we do? We shall com-
pel its obedience to the Constitution of the United States; that is all. The
senator knows that we propose no more. I yield for his reply."
Breckinridge had been angered, Forney knew, by that Tarpeian Rock busi-
ness; although its significance eluded the Pennsylvania newsman, evidently it
meant a great deal to senators who thought of themselves as linear descen-
dants of the Roman lawgivers.
"By whose indulgence am I speaking?" The Kentuckian's voice was shak-
ing as he sought to control his rage. "Not by any man's indulgence. I am
speaking by the guarantees of that Constitution which seems to be here now
so little respected.
"When the senator asked what would have been done with a Roman sena-
tor who had uttered such words as mine, a certain senator on this floor
whose courage has much risen of late"the contempt in that last phrase was
aimed at Charles Sumner, who, Breckinridge evidently thought, was his in-
sulter"replied in audible tones, 'He would have been hurled from the Tar-
peian Rock.' Sir, if ever we find an American Tarpeian Rock, and a suitable
victim is to be selected, the people will turn, not to me, but to that senator
who has been the chief author of the public misfortunes.
"Let him remember, too, that while in ancient Rome the defenders of the
public liberty were sometimes torn to pieces by the people, yet their memories
were cherished in grateful remembrance; while to be buried from the Tarpe-
ian Rock was ever the fate of usurpers and tyrants."
Forney nodded understanding; so that was the obscure reference that got
Breck's dander up; it was amazing what got under the skin of some of these
senators.
"I reply with just indignation," Breckinridge said, leveling a finger at Sum-
ner, "at such an insult offered on the floor of the Senate Chamber to a senator
who is speaking in his place."
Forney wished he could send him a note that it was Fessenden, not Sum-
ner, who had so learnedly insulted him, but that would not have made much
difference; Sumner of Massachusetts was the radical Republican Breckinridge
believed to be the instigator of Lincoln's punitive actions.
"War is separation," Breckinridge was saying, which Forney remembered
was a favorite phrase of John Calhoun's. "War is disunion, eternal and final
disunion. We have separation now; it is only made worse by war, and war will
extinguish all those sentiments of common interest and feeling which might
lead to a political reunion founded upon consent and upon a conviction of its
advantages.
"Let this war go on, however, you will see further separation. Let this war
go on, and the people of the West see the beautiful features of the old Confed-
eracy beaten out of shape by the brutalizing hand of war, and they will turn
aside in disgust from the sickening spectacle and become a separate nation."
That was too much for Baker, who did represent most of the west coast.
"The Pacific states," he thundered back, clattering as he rose, "will be true to
the Union to the last of her blood and her treasure.
"I confess, Mr. President, that I would not have predicted three weeks ago
the disasters which have overtaken our arms. But I ask the senator from
Kentucky, will he tell me it is our duty to stay here, within fifteen miles of the
enemy seeking to advance upon us every hour, and talk about nice questions
of constitutional construction? Are we to stop and talk about rising sentiment
against the war in the North? Are we to predict evil and flinch from what we
predict? Is it not the manly part to go on as we have begun, to raise money, to
levy armies, to prepare to advance?"
Forney looked around the room at the rapt attention shown to the senator
in uniform; the Senate wanted him to speak for all of them in crushing the
fear and guilt raised by the Kentuckian.
"To talk to us about stopping is idle; we will never stop. Will the senator
yield to rebellion? Will he shrink from armed insurrection? Will his state
justify it? Shall we send a flag of truce? What would he have us do? Or would
he conduct the war so feebly, that the whole world would smile at us in
derision?
"What would he have us do?" Baker hammered home his series of ques-
tions like nails in the lid of a pine coffin. "Those speeches of his, sown broad-
cast over the land, what clear distinct meaning have they? Are they not meant
for disorganization in our very midst? Are they not intended to dull our
weapons? Are they not intended to destroy our zeal? Are they not intended to
animate our enemies? Sirare they not words of brilliant, polished treason?"
The senators and the crowd in the gallery let out a roar. The dread word
had been said: Breckinridge, the secret spokesman for the rebellion in the
heart of the Union, had been branded a traitor to his face by the senator who
stood closest to Abraham Lincoln.
After much gavel-pounding by Senator Anthony, the chamber quieted. The
Chair recognized Breckinridge, whose response was delivered in a muted
voice.
"The senator asks me, 'What would you have us do?' I have already indi-
cated what I would have us do. I would have us stop the war.
"We can do it. There is none of that inexorable necessity to continue this
war which the senator seems to suppose. I do not hold that constitutional
liberty on this continent is bound up in this fratricidal, devastating, horrible
contest. Upon the contrary, I fear it will find its grave in it."
Everyone heard, nobody listened. He continued in the same resigned, al-
most despairing tone. "The senator is mistaken in supposing that we can
reunite these states by war. He is mistaken in supposing that if twenty million
on one side subjugate twelve million on the other side, that you can restore
constitutional government as our fathers made it."
Deep breath. "Sir, I would prefer to see these states all reunited upon true
constitutional principles to any other object that could be offered me in life.
But I infinitely prefer to see a peaceful separation of these states, than to see
endless, aimless, devastating war, at the end of which I see the grave of public
liberty and personal freedom."
Forney winced at the terrible admission: Breckinridge had finally come out
for "peaceful separation"for secession. That did it; he was on the record as
being on the other side.
Baker rose again, a whip crack in his hand, that he lightly tapped against
his boot. "The senator is right about the devastation ahead. There will be
privation; there will be loss of luxury; there will be graves reeking with blood,
watered with tears. When that is said, all is said. If we have the country, the
whole country, the Union, the Constitution, free governmentwith these
there will return all the blessings of a well-ordered civilization. The path of
the whole country will be one of greatness and peace such as would have been
ours today, if it had not been for the treason for which the senator from
Kentucky too often seeks to apologize." Ned Baker was finished speaking; he
laid the whip crack next to the sword lying across his desk and took his seat.
"You say that the opinions I express," replied Breckinridge, "are but bril-
liant treason. Mr. President, if I am speaking treason, I am not aware of it. I
am speaking what I believe to be for the good of my country. If I am speaking
treason, I am speaking it in my place in the Senate."
Forney caught Breck's legal points: first, he had no intent of committing
the capital offense, and second, he spoke from his elected post of privilege,
and could not be prosecuted for what he said from that place.
The senator stood in silence for a moment, considering what he was about
to say with care. "If my opinions do not reflect the judgment of the people I
represent," Breckinridge concluded, "I am not a man to cling to the emolu-
ments of public life. If the commonwealth of Kentucky, instead of attempting
to mediate as a neutral in this struggle, shall throw her energies into the strife
on the side of what I believe to be a war of subjugation and annihilation, then
she shall take her course. I am her son and will share her destiny, but she will
be represented by some other man on the floor of this Senate."