USA > Kentucky > A history of Kentucky and Kentuckians; the leaders and representative men in commerce, industry and modern activities, Volume I > Part 79
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tlement of estates, the transfer and descent of property, and similar or kindred subjects, were, during the Civil war, under the control of the local governments of the Confederate States, and what was done respecting such matters should not be held invalid or disregarded merely because those governments were organized in hostility to the Union established by the Na- tional Constitution; Lottery Cases, sustaining the power of Congress to forbid the transpor- tation of lottery tickets among the several states ; Jacobson v. Massachusetts, sustaining a compulsory vaccination law in Massachusetts ; Northern Securities Co. v. United States, hold- ing that a certain agreement which destroyed or tended to destroy competition in transporta- tion between the Northern Pacific Railroad Company and the Great Northern Railroad Company, was in violation of the Sherman Anti-Trust act, as forbidding competition in interstate commerce; Union Bridge Co. v. United States, holding that Congress, under its power to regulate interstate commerce could invest the Secretary of War, upon notice and hearing, to determine whether a particular structure was an obstruction to the free navi- gation of a waterway of the United States, and, therefore, acting by the Secretary of War, could require a state corporation, operat- ing a bridge over a navigable waterway of the United States, to alter such bridge at the ex- pense of such corporation, so that it would cease to be an obstruction to free navigation and this, although the bridge had been origi- nally constructed under the authority of the State and may not, when constructed, have been an obstruction to free navigation ; Okla- homa v. Atchison, Topeka & Santa Fe Ry. Co., holding that although the Constitution gave the Supreme court original jurisdiction of all suits "in which a state be party," a state could not bring suit in that court simply be- cause the state chose to make itself strictly a party plaintiff of record, when the real purpose of such a suit was simply to vindicate the
rights of the people generally and to enforce the state's laws or public policy against wrong- doers generally ; that the remedy against a corporation or citizen who, by violating the laws of the state, causes injury to particular individuals or interests was a suit in the proper court by the injured party against the wrong- doer.
Of his dissenting opinions, those which were most widely read, and which at the time attract- ed attention are : Civil Rights Cases, relating to the validity of the Civil Rights statute of 1873; Hurtado v. California, involving the validity under the Constitution of the United States of a statute of California, allowing a person charged with felony or other crime, to be proceeded against by Criminal Information, not by indictment; United States v. E. C. Knight Co., relating to a combination under the control, by one company, of 98 per cent of the sugar refining companies of the United States engaged in manufacture and sale of sugar ; Pollock v. Farmers' Loun & Trust Co. (on re- hearing, involving the validity of the Income Tax established by Congress ; Plessy v. Fergu- son, relating to a statute of Louisiana requiring the separation of whites and negroes in cars and trains ; Hawaii v. Mankichi, relating to the validity of certain regulations established in Hawaii in reference to criminal prosecutions ; and United States v. Hodges, involving the power of Congress to reach by statute and by prosecutions in the Federal Courts cases of combinations among whites to prevent negroes solely because of their race, from working at a particular place or at such places as the mem- bers of that race chose of their own accord to render services for others.
An extract from Justice Harlan's dissenting opinion in the Mankichi case well illustrates his judicial tone; thus: "In my judgment, neither the life, nor the liberty, nor the prop- erty of any person, within any territory or country over which the United States is sov- ereign, can be taken, under the sanction of any
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civil tribunal, acting under its authority, by any form of procedure inconsistent with the Constitution of the United States. I stand by the doctrine that the Constitution is the su- preme law in every territory, as soon as it comes under the sovereign dominion of the United States for purposes of civil administra- tion, and whose inhabitants are under its en- tire authority and jurisdiction. I could not otherwise hold without conceding the power of Congress, the creature of the Constitution, by mere non-action to withhold vital constitutional guarantees from the inhabitants of a territory governed by the authority, and only by the au- thority, of the United States. Such a doctrine would admit of the exercise of absolute, arbi- trary legislative power under a written Consti- tution, full of restrictions upon Congress, and designed to limit the separate departments of Government to the exercise of only expressly enumerated powers and such other powers as may be implied therefrom-each department always acting in subordination to that instru- ment as the supreme law of the land. Indeed it has been announced by some statesmen that the Constitution should be interpreted to mean not what its words naturally, or usually, or even plainly, import, but that the apparent necessities of the hour, or the apparent ma- jority of the people, at a particular time, de- mand at the hands of the judiciary. I cannot assent to any such view of the Constitution."
These words which "have gone down in the record forever,". subjoined to his letter or res- ignation from the army, establish as his one and main purpose at all times to stand by the Constitution and the Country and to perpet- uate the genius of American institutions.
In this connection, it will be proper to refer to the interesting fact that two of Justice Harlan's opinions, one representing the Court and one a dissenting opinion, have been printed in the Congressional Record-Continental I'all Paper Co. v. Voight & Sons Co., relating to a certain combination in the manufacture and
sale of wall paper which was held to be a crim- inal offense against the Sherman Anti-Trust law ; and Exparte Young, in which Justice Har- Jan dissented upon the ground that the Federal court could not, in any case, restrain the Attor- ney General of a state by injunction from bringing actions in the State courts to enforce a State law prescribing rates for freights and passengers on railroads doing business in such State, although such rates are alleged to be confiscatory in their operation. Attention is also called to a notable speech made by the Justice at a banquet given in his honor in New York in 1907 by the society in that city known as "The Kentuckians." By order of the Senate. that speech was published in the "Congres- sional Record" along with a speech in that body by Senator Teller. In his remarks on that oc- casion the Justice expressed fully his views as to the principles and form of our governments, National and State. Among other things, he said: "A National government for national affairs and State governments for State affairs is the foundation rock upon which our institu- tions rest. Any serious departure from that principle would bring disaster upon the Ameri-
* can system of free Government. * The American people are more determined than at any time in their history to maintain both National and State Rights, as those rights exist under the Union ordained by the Constitution. * *
* They will not patiently consider any suggestion or scheme that involves a Union upon any other basis. They will maintain, at whatever cost and in all their integrity, both National and State Rights. The peo- ple of the United States cherish, and will com- pel adherence to, the fundamental doctrine that the States are vital parts of the American system of government ; and they will insist with no less determination upon the recognition of the just powers of the States-to be exerted always in subordination to the Supreme Law of the Land-as essential to the preservation of our liberties. If then the matchless
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government devised by the fathers and or- Bench have not been confined solely to judicial dained by the People of the United States is work. In 1892 he was invited by President Harrison to serve on the Bering Sea Tribunal of Arbitration for which provision was made by the treaty between the United States and Great Britain in relation to the Pribiloff seals. The late Senator Morgan of Alabama was the other American representative on that Tribu- nal. The other members were Lord Justice Hannen of Great Britain, Sir John Thompson of Canada, Marquis Venosta of Italy, Judge Cram of Norway and Baron de Courcel of France. The Tribunal met in Paris in 1893. Its professed object was to devise ways and means for the preservation of those seals against the destruction by Pelagic Sealing. One of the questions in the case was whether Bering Sea was to be treated as an open sea, or could the United States regard it as a closed sea over which it could exercise paramount jurisdiction. Upon that question Senator Morgan alone voted that it could be treated as a closed sea, under the control of the United States. Harlan voted the other way. The United States only partially succeeded at the Arbitration. Harlan and Morgan both insisted that the Tribunal had the right to and should establish a zone around the Pribiloff Islands, the summer home of the seals where the pups were born and trained to travel in water. The Tribunal established the zone, but it was one which Harlan and Morgan protested was too narrow and insufficient. Subsequent events have demonstrated they were right, for the Government is now, after many years of inaction, neglect and indiffer- ence to the fate of the Pribiloff seals, trying to get more stringent regulations by the United States, Great Britain, Japan and Russia, which will protect them against the heartless assaults of Pelagic Sealers. Mr. Justice Harlan has been heard to say that he takes as much pride in his opinions or remarks before that Tribunal as in any of his judicial or quasi-judicial work. to be preserved and handed down intact to posterity, National power and State power must go hand in hand in harmony with the Constitution. If those powers clash, the para- mount authority of the Union within its pre- scribed sphere of action must prevail. Such is the express mandate of the Constitution, and such our common sense and experience tell us must always be the case, if liberty regulated by law is not to perish from our land. The Nation being supreme within the sphere of its action as defined by the Constitution, its au- thority, when legally exerted, binds every State as well as all individuals within the territory of the United States. The glory of the Re- public is that its affairs are regulated by a written Constitution-the fundamental law which distributes the powers of government among three separate, co-equal and co-ordinate departments, each exerting the authority, and only the authority, conferred upon it-and which Constitution, until amended in the mode prescribed by itself, must be deemed supreme over the Congress, over the President, over the courts, over the States and over the people themselves. * The National Govern- ment, it should be ever remembered, is one of limited, delegated powers, and is not a pure democracy, in which the will of a popular ma- jority as expressed at the polls at a particular time becomes immediately the supreme law. It is a representative Republic, in which the will of the people is to be ascertained in a pre- scribed mode, and carried into effect only by appointed agents designated by the people themselves, in the manner indicated by law. It would be a calamity unspeakable if our insti- tutions and the sacred rights of life, liberty and property should be put at the mercy of a majority unrestrained by a written supreme law binding every department of government, even the people themselves."
Justice Harlan's labors since coming to the
On December 9. 1902 the Bar of the Supreme Court of the United States tendered a banquet
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to Mr. Justice Harlan on his twenty-fifth anni- versary as Justice-a recognition not often known in professional and judicial annals. At that banquet the President of the United States (Mr. Roosevelt ) spoke the following words, viz .: "It is not an idle boast of this country when we speak of the Court upon which Mr. Justice Harlan sits as the most illustrious and important Court in all the civilized world. It is not merely our own people who say that-it is the verdict of other nations as well. Mr. Justice Harlan has served for a quarter of a century on that Court. During that time he has exercised an influence over the judicial states- manship of the country of a kind such as is possible only under our own form of govern- ment. For the Judges of the Supreme Court of the land must be not only great jurists, but they must be great constructive statesmen. And the truth of what I say is illustrated by every study of American statesmanship, for in not one serious study of American political life will it be possible to omit the immense part played by the Supreme Court in the creation, not merely the modification, of the great poli- cies through and by means of which the country has moved on to its present position." These are words of mighty import spoken by a great man. In 1910, the Bench and Bar of Albany gave a banquet at which Justice Harlan was present ; Governor Hughes (now Associate Justice) re- ferring to him, said that he "had read many, if not all, of the opinions delivered by the Jus- tice, and he was prepared to say that as much as in the case of any judge-either in England or in the United tates-his opinions were domi- nated by the principles of justice."
In tracing the career of such a man, there comes a time when all comparisons cease, for "none but himself can be his parallel." But an honored name in a high place naturally sug- gests the names of others of the kind. Mar- shall was born in 1755 and lived eighty years; Harlan was born in 1833. two years before Marshall died. Thus the two careers extend
over a period of more than a century and a half. Both endured all the horrors and priva- tions of war and developed into great construc- tive statesmen. Marshall spent his early life in the country. He was a student by nature, but without those privileges which attended some of the great Judges of England, notably among them, Lord Mansfield, to whom Erskine referred as "that great and venerable magis- trate who had presided so long in this court and high tribunal ( King's Bench ) that the old- est of us do not remember him with any other impression than the awful form and figure of Justice." Marshall had a military career un- der Washington, which ended in 1781 ; a suc- cessful political and legal career, and later be- came the great Chief Justice. Harlan also had a military career, a successful politi- cal and legal career, and has been the cen- tral figure of the Supreme Court for a quarter of a century. Marshall's opinions were broad in their range, far-reaching in their effect, and remind us of the placid flow of a great river. Harlan's opinions are smooth, studied, careful and ringing. His dissents remind one of the swinging of a heavy sledge.
There is to him a further service to his country. For twenty years he lectured at the George Washington University on the Consti- tution of the United States. During that period a procession of law students from all parts of the nation to the number of probably ten thou- sand passed before him and upon whom he shed "the illuminations of his mighty mind," in his characteristic way, expounding the Con- stitution and the great opinions of Marshall. Those students are now among the Nation's public men and lawyers, and hold within their hearts and souls the principle that this is a gov- ernment of laws and not of men, and that the Constitution and all laws passed in pursuance thereof are the Supreme Law of the land. For no student who attended his lectures will either forget the man nor what he heard him say. His love for people, particularly the stu-
PUB E' LIBRARY
TUTOR, LENOX TEL . FOUNDATIONS
SBB Buckner Sient Som. b. S.A.
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dents, and all the beautiful in the higher and better life is peculiarly manifested by his con- stant devotion to a Men's Bible Class in the New York Avenue Presbyterian Church, Washington, where for twenty years he has been found every Sunday morning from Octo- ber to June expounding the Scriptures. His outdoor exercise and recreation is golf.
The history of Kentucky, to say nothing of the Nation, could not be truly or fully out- lined without referring to the life and public services of Justice Harlan. "His fame, like a mighty river, will grow wider and deeper as it rolls downward." And while his name will always hold place with the great men of his race and will likewise be honored and revered "whenever constitutional liberty shall exist on earth," yet the true glory belongs to Kentucky, for he sprung from her soil and was trained and nurtured in our midst during the formative period of his life.
As Kentucky has but one living Justice of the Supreme Court so she and the South have but one living Lieutenant General of the Con- federate Army. There are mushroom imita- tions of that rank found here and there, who sprang up after the storm of war had passed, but these may be passed over without further mention. General Buckner won his high rank by gallant and meritorious service in actual warfare and bears it today modestly, as be- comes a soldier.
Gen. Simon Bolivar Buckner was born April 21, 1823, in the house at Glen Lily, Hart coun- ty, Kentucky, in which he today resides. He was the son of Aylette Hartswell Buckner, who was born in Albemarle county, Virginia, Jan- uary 13, 1793, and of Elizabeth Ann (More- head) Buckner, born in Kentucky August 9, 1801. General Buckner's father was brought to Kentucky by his parents at an early age and spent his long and useful life in this state. The military ardor of the son was a direct inherit- ance from the father, who as a volunteer soldier joined the army under General Harri-
soll, and was with that officer at the battle of the Thames.
General Buckner received his primary edu- cation in academies at Hodgenville and Hop- kinsville, and received his appointment to West Point, in June, 1840, from the Hon. Philip Triplett, of Owensboro, then the member of Congress from the district in which the young student's father resided. General Buckner pursued the regular course after admission to West Point and graduated in 1844, being at once commissioned a Second Lieutenant in the 6th United States Infantry. Two years later found the young officer in Mexico, where he participated in the siege of Vera Cruz and sub- sequently in the battles of Cerro Gordo, San Antonio, Churbusco, Molina del Rey, Chapul- tepec, Garita del Bela, and in a skirmish at Amazoque, ending his splendid service in that struggle by assisting in the capture of the City of Mexico. He was painfully wounded at Churubusco, August 20, 1847, and was brevet- ted as First Lieutenant for gallantry at that battle. A short time later, September 8, 1847, he received another promotion to brevet Cap- tain.
The war with Mexico having ended, he re- turned with the army to the United States and was ordered to West Point as Assistant In- structor in infantry tactics remaining there for two years. In 1850, he was promoted to First Lieutenant in the line, his brevets in Mexico being honorary, not giving him active rank in accordance therewith. In 1851, he was in command at Fort Atkinson in the then turbu- lent and dangerous Indian Territory where his soldierly conduct won him promotion to Cap- tain in 1852. Ordered to New York City, he was in the Subsistence department until 1855, when he resigned from the army and retired to private life, residing for some time in Chica- go, during which time he was on the staff of the Governor of Illinois, and when the trouble with the Mormons in Utah caused the sending of an armed force there under command of
Vol. 1-35.
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Col. Albert Sidney Johnston, he was appointed Colonel of an Illinois regiment of volunteers for service in Utah, but the ending of the Mor- mon troubles prevented the regiment from see- ing active service.
Returning to Kentucky in 1860, the young officer was appointed Inspector General of the State Guard with the rank of Major General. By means of camps of instruction, he formed the State Guard into a compact body of young men fit for any service on the field. In the War Between the States, many of these young men as officers in the Federal or Confederate armies, won high distinction. In 1861 General Buckner was in Washington and, by reason of his military education and experience in actual warfare, was tendered by Mr. Lincoln a com- mission as Brigadier General in the Federal army which he declined. In September, 1861, having cast his fortunes with the South, he was appointed a Brigadier General and for a time was in command of all the Kentucky troops in the Confederate service. Subse- quently he was ordered with his command to Fort Donelson to reinforce the commands of Generals Pillow and Floyd, then threatened by the army under General Grant. Elsewhere in this volume is related the story of the flight of Pillow and Floyd, and of the self-sacrifice of General Buckner who, true soldier that he is, refused to seek personal safety in flight, but re- mained with the army and when his gallant troops were worn out with constant fighting which he shared, he surrendered to the over- whelming forces of General Grant who, in the old army, had been his friend but whom the exigencies of war had made his enemy. Sent to Fort Warren in Boston harbor, General Buckner remained a prisoner of war in soli- tary confinement for eight months. Being ex- changed, he was at once promoted to a Major Generalship in recognition of his gallant service at Fort Donelson. Ordered to report to Gen- eral Bragg at Chattanooga, he was placed in command of a division of General Hardee's
corps. He accompanied the army into Ken- tucky and had the honor to receive the surren- der of a large force of Federals at Munford- ville, the county seat of Hart county and with- in a few miles of his boyhood home. He was present with his division at Perryville, Ken- tucky, October 8, 1862, and participated in the severe struggle which marked that battle as the greatest ever fought in Kentucky. On the re- tirement of General Bragg from Kentucky, General Buckner was ordered to the command of the Department of Southern Alabama with headquarters at Mobile where his skill as an engineer did much toward perfecting the de- fenses of that city. In May, 1863, he was in command of the Department of East Tennes- see and Western Virginia with headquarters at Knoxville. He participated as a corps com- mander in the great battle of Chickamauga, September 19-20, 1863, in which struggle it has been stated that the percentage of killed and wounded as compared to the numbers engaged on the two sides, was greater than that of any other battle of the war. In the spring of 1864, General Buckner reported to Lieutenant Gen- eral James Longstreet and was ordered to join the Army of Northern Virginia. In Septem- ber, 1864, he was promoted to be a Lieutenant General and assigned to the command of a corps in the Trans-Mississippi Department where he was at the conclusion of the war. Re- ceiving orders from General Kirby Smith, his superior in rank, to "disband the troops under his command," General Buckner declined to obey the order but going under a flag of truce to New Orleans, he arranged for their sur- render on the same terms as had been granted to General Lee.
For some reason, never stated, the auto- cratic Secretary of War, Stanton, refused per- mission to General Buckner to return to Ken- tucky. He thereupon took up his residence in New Orleans and was connected with the press of that city as an editorial writer for three years. General Grant coming into the
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Presidency, set aside the despotic order of Stanton and General Buckner returned to his home and was editor of the Louisville Courier for a time previous to its consolidation witli the Journal.
Induced thereto by the urgent appeals of many of his former comrades and many friends in civil life, General Buckner became a candidate for Governor of Kentucky. His entrance into the contest was at too late a date as many who would cheerfully have supported him had he announced earlier, found them- selves pledged to other candidates. General Buckner's close friend, J. Proctor Knott, re- ceived the nomination and was chosen Gover- nor at the succeeding election. Four years later General Buckner was again a candidate and was nominated and elected Governor of Kentucky. There were those who, while his ardent friends, feared that a man trained as a soldier and more familiar with the camp than with civil affairs, might not be successful in the direction of the affairs of the state, but these were soon relieved of their fears for the able soldier at once demonstrated that the rights of the people were safe under his guid- ing hand. The legislature which was in ses- sion soon after he became Governor, poured bill after bill upon his desk, many of which were destined never to find their way to the book of statutes. No bill was too small to escape his watchful eye; no cunningly devised scheme to enrich its promoters ever secured his approval. He was a veritable sentinel on the watch tower of the state. Veto after veto stopped the progress of bills which were for the benefit of the few and against the real in- terests of the many. The hand which so long had held a sword, now grasped a pen and the principles set forth in his messages as those which he would unswervingly maintain, were those of a civilian and those messages, as was frequently said at the time, might have been written by a lawyer who had had long service on the bench. Men who had doubted the wis-
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