Book Three: The Honest Silence Part Six: The Lords' Price Characters
Chapter Twenty-nine
Public Authority
Henry Ashton. Parliament House, in the United Kingdom of America. Thursday, 28 June 1866.
The ministry got a statute. The Lords got a definition. Nobody had to say out loud that the two were incompatible.
The bill was brought into the Commons on Monday the sixteenth of April, the day the schooner came up the river from King George for the seven, and it was argued for eleven weeks, in both Houses. I heard as much of the argument as a man with a desk in the drawing office could contrive to hear, which was a good deal, because the member from Ohio was generous with his tickets and the department was not strict about the afternoons that summer.
I have the printed bill on the table in front of me as I write. It was sold at the door of the House for a few pence, and I bought a copy on the first day and have it still, with my pencil in the margins. I am going to give Your Majesty one clause of it in its own words, because it was printed and sold at the door, and anybody may have it, and because it is not in the Act. It stood immediately after the clause that said what the bill meant by public authority, and it read:
And it is further declared and enacted, that the rights secured by this Act are the rights of every person within the King’s American dominions, and are not the rights of persons in their relation to the federal authority only; and accordingly every legislature, court, magistrate, sheriff, registrar, officer and public body of every polity of the Union is bound by this Act in the same measure as the officers of the federal government, any law, usage, constitution or practice of such polity to the contrary notwithstanding.
That was the clause. The rest of the bill said what the rights were: to make a contract, and to hold land and sell it, and to go to law, and to give evidence in a court, and to be a person there like any other person. That clause said who was bound to respect them. Everybody in the House knew that it was the point of the bill. The member from Ohio said to me in the lobby on the first day, holding his copy open at it with his thumb, that the rest of the bill was a list and that this was a law, and that the Lords would take it out if it was the last thing they did.
The ministry’s case was made chiefly by its law officers, and above all by the Attorney-General, a dry, careful man who spoke for most of a day, and it came to one thing: that to free four million people without making them persons in law was a fraud upon them, and that the Parliament, in the Measure, had abolished a status and had put nothing in its place. A freedman who could not make a contract, or hold a field, or go to law, or swear in a court against the man who had wronged him, was not free in any sense that a court could do anything about. That was the ministry’s case. The opposition’s case was not a defence of slavery. Slavery was gone, and nobody in either House spoke for it, or wished it back aloud. It was a defence of the polities. It was argued, and argued well, by men who had voted for the Measure the year before; and it said that a statute which bound the polities’ own legislatures and courts and sheriffs was an intrusion by the federal Parliament into the internal government of the polities, which the Charter had never permitted and to which no polity had ever consented. Both cases were serious. I want Your Majesty to understand that. I sat in the gallery through a good deal of both, and I could not have answered either of them, and I do not think the men who were answering them could, either. They could only outvote them, and in the Commons they did.
West Virginia was admitted in June.
It had been a polity in everything but law since the collapse, with its own assembly and its own seal, and its capital at Charles Town, eight miles from Harpers Ferry; and in June it became one in law, the Commonwealth of West Virginia, and the Legislature at Richmond consented to it. It was a bargain, and nobody pretended otherwise. The federal Treasury took over a part of Virginia’s old debt, and the new polity took a share of the rest, and Virginia was to have its own government back sooner than it would otherwise have had it; and in exchange the Legislature at Richmond voted for the separation, in form and in writing. I have heard it called duress in Richmond, and consent openly given in Charles Town, and a purchase, in plain terms, in the capital, by men who were glad of it. I think it was all three. The Colonel advised the ministry on it, I was told. He did not tell me what he advised, and I did not ask.
I was at Charles Town myself that month, on the department’s business, with the maps of the new boundary, and it was then that I stood in the courthouse there, as I told Your Majesty at the beginning of this account, and looked at the room where John Brown was not tried. It is a plain room. They were hanging a new coat of arms over the bench, with the date on it, and a man on a ladder asked me to tell him whether it was straight. It was not, and I told him so, and he moved it.
In the same month the Lords divided on the franchise condition: that the assemblies of the rebel polities, when they were restored, should be elected on a franchise that included the freedmen.
The Colonel voted for it. He did not speak. He sat on the cross benches through the debate, I was told, with his hands on his knees, and when the House divided he got up and went out into the lobby with the men who were for it, and the House watched him go; and the next morning it was in every newspaper in America, in the division list, and I read it at breakfast at the widow’s, and put the paper down, and picked it up and read it again. It was carried. I had not expected his vote. I want to be honest about that, because I have been asked since whether I knew, being so much with him, and I did not. I had sat on his terrace through a summer of Sundays and listened to him talk about horses, and I had not the least idea. Nobody had. Nobody who thought they knew him had any idea at all.
I asked him for the order for the gallery myself, for the day the Lords were to take the clause. It was the first thing I had ever asked of him for myself, in all the years I had known him; and he signed it at the table on the terrace on the Sunday before, without asking me why, as I had never asked him.
They took it on Thursday the twenty-eighth of June. The motion to leave it out was moved by a lord from one of the loyal polities that had held slaves, who had voted for the Measure, and who said so; and the case he made was the opposition’s case, the case for the polities, and he made it with great courtesy and at great length, and it was answered by the ministry’s lords, and the answer was the ministry’s case, and nobody in the chamber, I think, was moved one inch by anything that was said on either side.
When the House divided, the Colonel got up from the cross bench, without having said a word, and went out into the lobby against leaving it out: with the ministry’s lords, and the bishops of the northern sees, and a handful of others. I watched the chamber watch him go. There was a sound in it as he went, not loud, of men turning in their seats to see; and on the benches opposite there were men who had known him for thirty years, who had been surprised by his vote on the franchise not a fortnight before, and were surprised again, and did not hide it.
The clause was struck out. I did not write down the numbers, and I have not looked for them since. It was enough that it was struck out, and that he had voted to keep it, and lost.
He came out at the end, as he had in the July before, with his hat in his hand, and saw me at the foot of the gallery stairs. This time he did not ask me whether the gallery could hear. He said, “Good night, Mr Ashton,” and went out to his carriage.
The bill went back to the Commons, without its clause, and on Monday the second of July, eleven weeks to the day from its first reading, the Prime Minister moved that the House agree with the Lords, and made it a question of confidence.
It was the third time. He had staked the ministry on conscription in the war, and on the Measure, and now on this; and it was the Lords who had made him do it, because a ministry that had brought in a bill for the sake of a clause could not ask its friends to swallow the bill without the clause on any lesser terms. I was in the gallery, on the member from Ohio’s ticket. The Prime Minister spoke for an hour. I will give Your Majesty the substance, as I have given his speeches before. He said that an Act which reached the federal authority was an Act, and that an Act which reached the polities was a bill that would not pass, and that the House must choose between them that night, because there was no third thing on the table. He said that the guarantees, once they were on the statute book, could be extended later, by a Parliament that had the votes, and that they could not be extended if they were not there. And he said that the assemblies of the rebel polities, when they were restored, would be elected on the new franchise, and would not need to be compelled, because the men who sat in them would be the men the Act had been written for.
Men on his own side stood up and told him that he was wrong, and some of them voted against him, because the clause was gone; and the opposition voted against him because the bill was there at all. Mr Douglass told him in terms that he was wrong, I read, and so did others who had more reason to know than I. The ministry carried it, a little after midnight, narrowly. The member from Ohio voted with the ministry. He said to me afterwards on the steps, very tired, that it was a statute, Major, and that you could not amend a thing that was not there; and then he said that he hoped to God the Prime Minister was right about the assemblies, and went home.
The Governor-General gave the Crown’s assent on Wednesday the fourth of July, which is Charter Day, two days later.
He did not do it in the plain room at the back of Government House, where nearly everything the Crown does in America is done. He came down to Parliament House in his carriage, and went into the Lords, and sat on the Throne, with the doors of the chamber open and the galleries full and the street outside full; and the Gentleman Usher of the Ebony Rod went down the long lobby and summoned the Commons, and they came up the lobby and stood at the bar, with the Prime Minister at their head, as they do at the opening of a Parliament. I was in the gallery. I had not asked anybody for the order this time; the galleries were open, I was told, because Mr Chase had asked that they should be. He had chosen the day and the place himself, and it was said in the capital that he had chosen them so that it should be seen.
He did not speak. He was not there to speak. The clerk read the title of the Act, and the Clerk of the Parliaments said the old form of words, and the Governor-General bowed his head, very slightly, and it was done. He sat for a moment longer in the chair, a big, grave man in black, with his hands on its arms; and I looked at him in it, and thought of the other chair, at Charles Town in South Carolina, on its dais, which had been made for a representative of Your Majesty to sit in and give assent to the bills that were laid on the table at its foot, and in which nobody had ever sat. And I understood, watching Mr Chase, that this was the whole of what that chair had been made for, and that it had never been able to do it, because nobody had ever been willing to sit in it on these terms: to be seen to do what a Parliament had asked, and nothing else, and to say nothing about it.
The Colonel’s letter to his son was written in the middle of July.
I was at Arlington in the evening, as I often am when my work allows, and he was at the table on the terrace with his letter book and a letter he had finished, and he looked up as I came along the crest, and called me up. He said, “Mr Ashton. You have made a good many fair copies for me. I should be obliged if you would make one more.” His daughters were at a neighbour’s that evening, and they generally kept his book. He gave me the letter and the book, and sat back in his chair and looked at the river while I wrote.
It was to his son William, whom the family call Rooney, who had written to ask him about his votes. I copied it into the book, as I was asked, and so I can give Your Majesty the whole of it, because I have it in my own hand as well as in his:
You ask how I could vote as I did, and you are entitled to ask. I have not changed my opinions about the capacities of the race, and I do not expect to. But men who have served cannot be refused. They stood in the lines when they were asked, some of them on ground I had built, and they were not asked whether they were fit. A country that takes a man’s service and then tells him he is not a citizen has made a bargain it had no right to make, and I will not be a party to it.
It was dated at Arlington, and signed.
I gave him back the book, and he read the copy through, and blotted it, and thanked me, and said nothing else about it then or since; and when his daughters came home he went in. I sat on at the table for some time.
It is not a kind letter, and I do not think it was meant to be. He told his son first, before anything else, that he had not changed his opinions, and did not expect to; and then he told him why he had voted against them. I had seen the men he meant. I had seen them in the ditch with picks and on the parapet with spades, on ground he had built and I had drawn, in the winter when there was no winter, and I had stood with one of them at the end of a row of graves below that terrace. And I had copied it, as I copy everything, in my best hand, which is better than his: the same hand in which I had written, on the board’s form, two summers before, Daniel; aged thirty-two; smith. I sat at the table on the terrace with the light going, and thought about bargains, and about who had made them, and with whom, and on what terms; and the Colonel’s lamp went on in the window behind me, and I went home.
I went to see Daniel at the end of July.
He had taken his discharge in the winter, when his time was out, and he had a forge of his own now, or half of one, with a partner, in the street below the canal where I had found old Abel two years before; and he was married, to the woman I had seen on his arm at the watch night. I went on a Saturday afternoon, when I knew the forge would be cold, and he was in the yard in his shirt-sleeves, mending a cart, and he straightened up when he saw me, and did not salute, and did not put out his hand, and waited.
His wife came to the door of the house behind the forge. He said, “My wife, Mr Ashton. Mrs King.” I bowed to her, and she inclined her head and looked at me for a moment, and went in again. It was the first time I had heard the name spoken aloud since the member from Ohio read it on the floor of the Commons. And it was the first time he had ever called me Mr Ashton. He had called me Mr Henry until he enlisted, and sir in the regiment, because the regulations required it; and now he called me what the Colonel calls me, and I understood that he had chosen it as carefully as he had chosen his name.
I told him what I had come for. I had come with two things, and I said them as plainly as I could, because I had rehearsed them for a month and I did not trust myself to say them any other way.
The first was the forge at Marlfield. It was mine, and it was cold, with the grass growing in the hearth, and I had nobody to work it and never would; and I said that if he would go back to it, it was his, the forge and the shed and the ground it stood on, by deed, and that I would see the deed made and recorded.
He heard me out. Then he said, “I can’t go home, Mr Ashton.”
I asked him why not, though I knew.
He said that a man from his regiment, from the second company, had gone home in the winter to a county up the Rappahannock, where he had been held before the war, and that in March some men had come to his house in the night, on horses, with sacks over their heads, and taken him out and beaten him, and told him to leave the county; and that he had left it, and was in the capital now, and could not use his right hand. He said that the minister at his church had read the Act to them from the pulpit, a good part of it, the Sunday after the Governor-General signed it, and had explained it to them afterwards; and that it was a good Act, and that in King George it would not help him at all. He said, “It’s for the soldiers and the post office. It isn’t for the sheriff.” Then he said, “In King George I’d be a person in federal law. There isn’t any federal law in King George, Mr Ashton. There’s a captain on the green, writing letters.”
I could not tell him that he was wrong, because he was not. Under the Act he could make a contract and hold land and go to law and give evidence, against the Crown’s officers, anywhere in the Union; and in King George County the sheriff is not a federal officer, nor the county court, nor the registrar, nor the assembly at Richmond, and the captain on the green is a federal officer and has been told, in writing, that it is a matter for the courts. I had read the Act by then. I had read it more carefully than he had, and he understood it better.
The second thing was the money.
I told him that the Crown had paid me for him. He knew it; I do not know how, but he knew it, and I saw that he did. I told him that the sum the board had allowed for him could be separated from the rest, because it stood on the schedule beside his name, and that I had added to it the hire that Mr Coakley had paid me for him, year by year, for the years he was at the works, which I had worked out to the penny from my own books; and that I wanted him to have it, all of it, and that it was in the bank where the clerk had paid it, and that I had not touched it.
He did not answer for a long time. He looked at the cart, and at the cold forge, and at the door his wife had gone in at. Then he said, “No.”
I asked him why not. I had not meant to ask. He looked at me then, straight, as he had looked at me in the door of the forge at Falmouth, and he said, “We didn’t take the lower rate, Mr Ashton. In the regiment. We went a year without, sooner than take it.” I said that I remembered. He said, “That’s what they said I was worth. On your paper. I’m not going to take what they said I was worth.” And then he said, “You keep it. Keep it with the bond.”
That was all he said about it. He picked up his hammer and went back to the cart, and after a while I understood that I had been answered, and that I was not going to be answered again, and I said good afternoon to him, and he said good afternoon, Mr Ashton, and I walked home along the canal.
The board’s letter is in the box with the bond, and with the copy of the schedule, and with the executors’ paper of 1857. The money is in the bank, where the clerk paid it. I have not touched it. I cannot give it to him, because he will not take it; and I cannot give it to anybody else, because it is not anybody else’s; and I cannot keep it, and I have kept it. That is where it is, Sir. I have looked for a way out of it for the whole of this summer, and I have not found one, and I have come to think that there is not one, and that he did not mean me to find one.
I have the Act on the table beside the bill as I write. The clause is not in it. Every right in the Act is a right against public authority; that is how the Act is made, and I have read it often enough now to know. And this is what the Act says that public authority means:
In this Act, public authority means the Crown in right of the federal government of the Union, and the ministries, departments, officers, courts, forces, and bodies of that government; and does not include the government, legislature, courts, officers or bodies of any polity.
It is a very good sentence. I have read it a great many times, looking for what is wrong with it, as Mr Pell looked at the commissioners’ form in his yard at St Mary’s, and there is nothing wrong with it at all. A lawyer would understand it in a minute. Daniel understood it without being a lawyer. It says what the Act means, and it means exactly what it says, and every man in both Houses who voted for it knew what it said; and nobody had to stand up in either of them and say it aloud. I have said it aloud now, Sir, to you. I do not know that it will do any good. It is the last thing I have to tell Your Majesty about the law.