22. Chickamauga.—In the centre Rosecrans and Bragg spent the first six months of the year, as it were glaring at each other. Nothing was done by the main armies, but the far-ranging cavalry raids of the Confederates under J. H. Morgan and other leaders created much excitement, especially "Morgan's Raid" (June 27-July 26), through Indiana, Kentucky and Ohio, which states had hitherto little or no experience of the war on their own soil. At last the Army of the Cumberland advanced. Rosecrans manoeuvred his opponent out of one position after another until Bragg was driven back into Chattanooga. These operations were very skilfully conducted by Rosecrans and his second-in-command, Thomas, and, at a trifling cost, advanced the Union outposts to the borders of Georgia. Burnside and the new Army of the Ohio had now cleared east Tennessee and occupied Knoxville (September 2), and meanwhile Rosecrans by a brilliant movement, in which he displayed no less daring in execution than skill in planning, once more manoeuvred Bragg out of his position and occupied Chattanooga. But he had to fight to maintain his prize, and in the desperate battle of Chickamauga (q.v.) on the 19th and 20th of September, Bragg, reinforced by Longstreet from Virginia, won a complete victory. Thomas's defence won him the popular title of the "Rock of Chickamauga" and enabled Rosecrans to draw off his men, but the critical position of the Army of the Cumberland in Chattanooga aroused great alarm.
23. Chattanooga.—Grant was now given supreme command in the west, and the Army of the Tennessee (now under Sherman) and two corps from Virginia under Hooker were hurried by rail to Tennessee. In spite of his good record Rosecrans was deprived of his command. But Thomas, his successor, was one of the greatest soldiers of the war, and Grant's three generals, all men of great ability, set to work promptly. Hooker defeated Longstreet at Wauhatchie and revictualled Chattanooga (q.v.), and on the 23rd, 24th and 25th of November the three armies attacked Bragg's position. On the left Sherman made little progress; on the right, however, Hooker and the men from the Potomac army fought and won the extraordinary "Battle above the Clouds" on Lookout Mountain, and on the 25th the Confederate centre on Missionary Ridge was brilliantly stormed by Thomas and the Army of the Cumberland. Grant's triumph was decisive of the war in the west, and with Burnside's victory over Longstreet at Knoxville, the struggle for Tennessee was over. Vicksburg, Gettysburg and Chattanooga ended the crisis of the war, which had been at its worst for the Union in this year. Henceforth the South was fighting a hopeless battle.
24. Plan of Campaign for 1864.—Grant, now the foremost soldier in the Federal army, was on the 9th of March 1864 commissioned lieutenant-general and appointed general-in-chief. Halleck, Lincoln and Stanton, the intractable, if energetic, war secretary, now stood aside, and the efforts of the whole vast army were to be directed and co-ordinated by one supreme military authority. Sherman was to command in the west, Grant's headquarters accompanied Meade and the Army of the Potomac. The general plan was simple and comprehensive. Meade was to "hammer" Lee, and Sherman, at the head of the armies which had been engaged at Chattanooga and Knoxville, was to deal with the other great field army of Confederates under Johnston, and as far as possible gain ground for the Union in the south-east. Sherman's own plans went farther still, and included an eventual invasion of Virginia itself from the south, but this was not contemplated as part of the immediate programme. Butler with the new Army of the James was to move up that river towards Richmond and Petersburg. Subsidiary forces were to operate on the sea-board, in the Shenandoah Valley and elsewhere. At this time took place the Red River Expedition, which was intended for the subjugation of western Louisiana. The troops of General Banks and the war vessels under Admiral Porter moved up the Red river, and on the 16th of March 1864 reached Alexandria. Skirmishing constantly with the Confederates under Kirby Smith and Taylor, the Federals eventually on the 8th and 9th of April suffered serious reverses at Sabine Cross Roads and Pleasant Hill. Banks thereupon retreated, and, high water in the river having come to an end, the fleet was in the gravest danger of being cut off, until Colonel Bailey suggested, and rapidly carried out, the construction of a dam and weir over which the ships ran down to the lower waters. Eventually the various forces retired to the places whence they had come.
25. The Wilderness Campaign.—Virginia was now destined to be the scene of the bloodiest fighting of the whole war. Grant and Meade, reinforced by Burnside's IX. Corps to a strength of 120,000 men, crossed the Rapidan on the 4th of May with the intention of attacking Lee's inner flank, that nearer Richmond. With a bare 70,000 men the Confederate general struck at the flank of Grant's marching columns in that same Wilderness where Jackson had won his last battle twelve months before. The battle of the Wilderness (q.v.) went on for two days, with little advantage to either side. On his part Grant had lost 18,000 men. Lee had lost fewer, but could ill spare them, and Longstreet had been severely wounded (May 5-6). Grant, astonished perhaps, but here as always resolute, tried again to reach Lee's right wing, and on the 8th another desperate battle began at Spottsylvania (q.v.) Court House. The fighting on this field lasted ten days, at the end of which Grant had doubled his losses and was as far as ever from success. On the 21st of May, with extraordinary pertinacity, he sent Meade and Burnside once more against the inner flank of the Army of northern Virginia. The action of North Anna ended like the rest, though on this occasion the loss was small. A week later the Federals, again moving to their left, arrived upon the ground on which McClellan had fought two years before, and at Cold Harbor (Porter's battle-field of Gaines' Mill) the leading troops of the Army of the James joined the lieutenant-general. Meanwhile the minor armies had come to close quarters all along the line. The Army of the James moved towards Richmond on the same day on which the Army of the Potomac crossed the Rapidan. On the 16th of May Butler fought the indecisive battle of Drury's Bluff against Beauregard, in consequence of which he had to retire to Bermuda Hundred, whence most of his troops were sent to join Grant. At the same time the Union troops under Sigel in the Shenandoah Valley were defeated at New Market (May 15). General Hunter, who replaced Sigel, won a combat at Piedmont, and marched on the 8th of June towards Lynchburg. The danger threatening this important point caused Lee to send thither General Early with the remnants of Jackson's old Valley troops. Hunter's assault (June 18) failed, and the Federals, unable to hold their ground, had to make a circuitous retreat to the Potomac by way of West Virginia.
26. Cold Harbor.—On the 3rd of June at Cold Harbor (q.v.) took place the last of Grant's "hammering" battles in the open fields. The attack of the Federals failed utterly; not even Fredericksburg was so disastrous a defeat. Six thousand men fell in one hour's fighting, and the total losses on this field, where skirmishing went on for many days, were 13,000. But Grant was as resolute as ever. His forces once more manoeuvred against Lee's inner flank, still found no weak spot, and eventually arrived upon the James. The river was crossed, Lee as usual conforming to the movement, and on the 15th of June the Federals appeared before the works of Petersburg (q.v.). Here, and in the narrow neck of land between the Appomattox and the James, was the ganglion of the Confederacy, and the struggle for its possession was perhaps the greatest of modern history. A first assault made at once (June 15-18) failed with a loss of 8150 men. Two sharp combats followed on the 22nd of June and the 2nd of July, as Grant once more began to feel Lee's right. But the anniversary of Gettysburg saw Lee's works still intact, and 72,000 men of the Army of the Potomac and the Army of the James had fallen since the campaign had opened two months before. History has few examples to show comparable to this terrible campaign in Virginia. The ruthless determination of the superior leaders had been answered splendidly by the devotion of the troops, but the men of Chancellorsville and Gettysburg were mostly dead or wounded, and the recruits attracted by bounties or compelled by the "draft," which had at last been enforced in the North, proved far inferior soldiers to the gallant veterans whom they replaced.
27. Petersburg.—There was no formal siege of Lee's position. A vast network of fortifications covered the front of both armies, whose flank extended far to the south-west, Grant seeking to capture, Lee to defend, the Danville railway by which the Confederates received their supplies. Richmond, though no longer of paramount importance, was no less firmly held than Petersburg, and along the whole long line fighting went on with little interruption. On the 30th of July the Federal engineers exploded a mine under the hostile works, and Burnside's corps rushed to the assault. But the attempt ended in failure—the first defeat of the Army of the Potomac which could fairly be called discreditable. Still, Lee was losing men, few it is true, but most precious, since it was impossible to replace them, while the North poured unlimited numbers into the Federal camps. The policy of "attrition" upon which Grant had embarked, and which he was carrying through regardless of his losses, was having its effect. About this time Early, freed from the opposition of Hunter's forces, made a bold stroke upon Washington. Crossing the Potomac, he marched eastward, and, defeating a motley force (action of the Monocacy) which General Lew Wallace had collected to oppose him, appeared before the lines of Washington. The Federal capital was at the moment almost denuded of troops, and forces hastily despatched from the James only arrived just in time to save it. Thereupon the Confederates retired, narrowly escaping Hunter, and the brief campaign came to an end with an engagement at Kernstown. Early had been nearer to the immediate success than Lee had been in 1862 and 1863, but he had failed utterly to relax Grant's hold on Petersburg, which was becoming daily more crushing.
On the decisive theatre the Federals made their way, little by little and at a heavy cost, to the Weldon railway, and beyond it to the westward. Lee's lines were becoming dangerously extended, but he could not allow the enemy to cut him off from the west. On the 25th of August there was a battle at Reams Station, in which the Federals were forced back, and the famous II. Corps under Hancock was for the first time routed. But Grant was tireless, and five days later another battle was fought, at Peebles Farm, in which the lost ground was regained. Butler and the Army of the James at the same time won some successes in front of the Richmond works. One more attempt to outflank Lee to the westward was made by Grant without success, before winter came on, and the campaign closed with an expedition, under the direction of General Warren, which destroyed the Weldon line. Grant had not reached Lee's flank at any point, and his casualties from first to last had been unprecedentedly heavy, but "hammering" was steadily prevailing where skill and valour had failed.
28. Sheridan's Valley Campaign.—In the closing months of the year Grant's brilliant cavalry commander Sheridan had been put in command of an army to operate against Early in the Valley. The Federals in this quarter had hitherto suffered from want of unity in the command (e.g. Banks, Fremont and McDowell in 1862). The Army of the Shenandoah would not be thus handicapped, for Sheridan was a leader of exceptional character. The first encounter took place on the Opequan near Winchester. Early was defeated, but not routed (September 19), and another battle took place near Strasburg (Fisher's Hill) on the 22nd. Always disposing of superior numbers, Sheridan on this occasion won an important victory without much loss. A combat which took place, at Mount Jackson, during the pursuit, again ended successfully, and the triumphant Federals retired down the Valley, ruthlessly destroying everything which might be of the slightest value to the enemy. Early sharply followed them up, his men infuriated by the devastation of the "Granary of the Confederacy." At Cedar Creek (q.v.), during a momentary absence of the Federal commander, his camps were surprised by Early (October 19). The Army of the Shenandoah was routed and driven towards the Potomac. But the gallant stand of the old Potomac troops of the VI. Corps checked the Confederates. Sheridan arrived on the scene to find a new battle in progress. He was at his best at such a moment, and the rallied Federals under his command swept all before them. The victory was decisive, and, the country being now bare of supplies, the Army of the Shenandoah was sent to reinforce Grant, while the remnant of Early's forces also went to Petersburg. Sheridan's campaign was a famous episode of the war. It was conducted with skill, though, with twice the numbers of the enemy at his command, Sheridan's victory was a foregone conclusion. But he had at least shown that he possessed to an unusual degree the real attribute of a great captain—power over men.
29. Sherman and Johnston.—Meanwhile Sherman had fought his Atlanta campaign. General Johnston opposed him almost on the old Chickamauga battle-ground, where the Federal commander, after a brief campaign in Mississippi and Alabama, the result of which was to clear his right flank (February 3-March 6, 1864), collected his armies—the Army of the Tennessee under McPherson, the Army of the Cumberland under Thomas (Hooker's troops had now become part of this army) and the Army of the Ohio under Schofield. In the celebrated campaign of Atlanta the highest manoeuvring skill was displayed by both the famous commanders. Whilst Grant, with his avowed object of crushing Lee's army, lost no opportunity of fighting a battle coute que coute, Sherman, intent rather on the conquest of territory, acted on different lines. Johnston, than whom there was no better soldier in the Confederate service when a careful defence was required, disposed of sensibly inferior forces, and it was to be expected that the 18th-century methods of making war by manoeuvring and by combats, not battles, would receive a modern illustration in Georgia. Operations began early in May 1864, and five days of manoeuvring and skirmishing about Resaca and Rocky Face ended in Johnston's retirement to Resaca. A fortnight later the same manoeuvres, combined with constant "tapping" at the Confederate defences, caused him to fall back again. At Adairsville the same process was gone through, and Johnston retired to Cassville, where he offered battle. Sherman was far too wary to be drawn into an action under unfavourable conditions. If each general had been able to obtain a great battle upon his own terms, each would have fought most willingly, for neither desired a useless prolongation of the war. As it was, both declined to risk a decision. Johnston's inferiority in numbers was now becoming lessened as Sherman had to detach more and more troops to his ever-lengthening communications with Chattanooga. Another manoeuvre brought about a heavy combat near Dallas (Pickett's Mills and New Hope Church, May 25- 27). After a time Johnston fell back, and on the 6th of June the Federals appeared before Marietta (q.v.). Hitherto neither leader had offered a weak spot to his opponent, though the constant skirmishing had caused a loss of 9000 men to Sherman and about two- thirds of that number to the Confederates. At this moment Sherman suddenly changed his policy and sent his troops straight against the hostile entrenchments. The neighbourhood of Marietta witnessed for the next fortnight very heavy fighting, notably at Pine Mountain on the 14th and Kenesaw on the 27th, both actions being frontal assaults gallantly pushed home and as gallantly repulsed. Sherman acted thus in order to teach his own men and the enemy that he was not "afraid," and the lesson was not valueless. He then resumed his manoeuvring, which was now facilitated by improved weather and better roads.
30. Atlanta.—Johnston in due time evacuated the Marietta lines. On the 7th of July his fortifications on the Chattahoochee river were turned, and he fell back into the Atlanta (q.v.) position, which was carefully prepared, like all the others, beforehand. Here Johnston was deprived of his command. His campaign had not been unsuccessful, for Sherman had never succeeded in taking him at a disadvantage, but the whole of the South, including President Davis and his chief of staff General Bragg, clamoured for a more "energetic" policy, and General J. B. Hood was put in command on the understanding that he should "fight." The new general, whose bold and skilful leading had been conspicuous on most of the Virginia battlefields, promptly did so. At first successful, the Confederates had in the end to retire. A few days after this battle (called Peach Tree Creek) took place the battle of Atlanta, which was fiercely contested by the veterans of both sides, and in which McPherson, one of the best generals in the Union army, was killed. Still, Hood was again beaten. The Army of the Tennessee, under its new commander General O. O. Howard, fought and won the battle of Ezra Church on the 28th of July, and, Atlanta being now nearly surrounded, Hood was compelled to adopt the Fabian methods of his predecessor, and fell back to the southward. An attack on the Army of the Ohio near Jonesboro concluded the Atlanta campaign, which left Sherman in control of Atlanta, but hampered by the necessity of preserving his communications with Chattanooga and weakened by a total loss of 30,000 men. In this celebrated campaign the American generals rivalled if they did not excel the exploits of Marlborough, Eugene and Villars, under allied conditions.
31. The March to the Sea.—Although General Canby, with a Federal force in the south, had been ordered to capture Mobile early in the year—after which he was to operate towards Atlanta—Mobile still flew the Confederate flag, and Hood, about to resume the offensive, was thus able to base himself on Montgomery in order to attack Sherman in flank and rear. But the Federal commander was not to be shaken off from his prize. He held firmly to Atlanta, clearing the city of non- combatants and in other ways making ready for a stubborn defence. Thomas and the Army of the Cumberland were sent back to guard Tennessee. A heavy attack on the post of Allatoona (to the garrison of which Sherman sent the famous message, "Hold the fort, for I am coming") was repulsed (October 5). The main armies quickly regained contact, each edging away northwestwards towards the Tennessee and coming into contact at Gaylesville, Alabama, and again at Decatur. General Slocum with Hooker's old Potomac troops garrisoned Atlanta, and every important post along the railway to Chattanooga was held in force. Sherman had now resolved to execute his plan of a march through Georgia to the sea and thence through the Carolinas towards Virginia, destroying everything of military value en route. With the provisos that if Lee turned upon Sherman, Grant must follow him up sharply, and that Thomas could be left to deal with Hood (both of which could be, and were, done), the scheme might well be decisive of the war. Preparations were carefully made. Fifty thousand picked men were to march through Georgia with Sherman, and Thomas was to be reinforced by all other forces available. There was no force to oppose the "March to the Sea." Hood was far away on the Tennessee, which he crossed on the 29th of October at Tuscumbia, making for Nashville. Want of supplies checked the Confederates after a few marches, while Schofield was pressing forward to meet them at Pulaski and Thomas was gathering, at Nashville, a motley army drawn from all parts of the west. It was at this same time that Sherman broke up his railway communication, destroying Atlanta as a place of arms, and set out on his adventurous expedition. There was little in his path. Skirmishes at Macon and Milledgeville alone varied the daily routine of railway-breaking and supply-finding, in which a belt of country 60 m. wide was absolutely cleared. On the 10th of December the army, thoroughly invigorated by its march, appeared before the defences of Savannah. On the 13th of December a division stormed Fort McAllister, and communication was opened with the Federal fleet. The march concluded with the occupation of Savannah on the 20th.
32. Nashville.—Hood, at a loss to divine Sherman's purpose, hastened on into Tennessee amidst weather which would have stopped most troops. Schofield met him on the Duck river, while Thomas was shaping his army in rear. Hood manoeuvred Schofield out of his lines and pushed on once more. At Franklin Schofield had to accept battle, and thirteen distinct assaults on his works were made, all pushed with extraordinary fury and lasting far into the night. Thomas ordered his lieutenant to retire on Nashville, Hood following him up, impressing recruits, transports and supplies, and generally repeating the scenes of Bragg's march of 1862. The civil authorities and the lieutenant-general also urgently demanded that Thomas should advance. Constancy of purpose was the salient feature of Thomas's military character. He would not fight till he was ready. But this last great counterstroke of the Confederacy alarmed the whole North. So great was the tension that Grant finally sent General J. A. Logan to take command. But before Logan arrived, Thomas had on the 15th and 16th of December fought and won the battle of Nashville (q.v.), the most crushing victory of the whole war. Hood's army was absolutely ruined. Only a remnant of it reassembled beyond the Tennessee.
33. The Carolinas.—From Savannah, Sherman started on his final march through the Carolinas. Columbia, his first objective, was reached on the 17th of February 1865. As usual, all that could be of possible value to the enemy was destroyed and, by some accident, the town itself was burned. Sherman, like Sheridan, was much criticized for his methods of reducing opposition, but it does not seem that his "bummers" were guilty of wanton cruelty and destructiveness, at least in general, though the cavalry naturally gave more ground for the accusation than the main body of the army. And the methods of the Confederates had on occasion been somewhat similar. The Confederate general Hardee managed to gather some force (chiefly from the evacuated coast towns) wherewith to oppose the onward progress of the Federals. As commander-in-chief, Lee now reappointed Johnston to command, and the latter soon attacked and very nearly defeated his old opponent at Bentonville (March 19-20). But the "bummers" were no mere marauders, but picked men from the armies that had won Vicksburg and Chattanooga, and, though surrounded, held their ground stoutly and successfully. Advancing once more, they were joined at Goldsboro by the forces lately besieging Fort Fisher (see below), and nearly 90,000 men marched northward towards Virginia, pushing Johnston's weak army before them. Meanwhile the bulk of the forces at Nashville had been sent to the north-east to close Lee's escape to the mountains, and in March the final campaign had opened at Petersburg.
34. The Final Campaign.—At last Lee's men had lost heart in the unequal struggle. Sheridan raided the upper James and destroyed all supplies. Grant lay in front of the Army of northern Virginia with 125,000 men, and when active operations began Lee had no resource but to try and escape to the south-west in order to join Johnston. The western movement was covered by a furious sortie from the lines of Petersburg, which was repulsed with heavy loss. Grant felt that this was a mere feint to screen some other move, and instantly carried the Army of the Potomac to the westward, leaving a bare screen of troops in his lines. On the 29th of March the movement began, followed in rapid succession by the combats of White Oak Road and Dinwiddie Court House and Sheridan's great victory of Five Forks. At the same time the VI. Corps at last carried the Petersburg lines by storm. Thereupon Lee and Longstreet evacuated the Petersburg and Richmond lines and began their retreat. Their men were practically starving, though their rearguard showed a brave front. The remnant of Ewell's corps was cut off at Sailor's Creek, and when Sheridan got ahead of the Confederates while Grant furiously pressed them in the rear, surrender was inevitable (April 8). On the 9th the gallant remnant of the Army of northern Virginia laid down its arms at Appomattox Court House, and the Confederacy came to an end. Johnston surrendered to Sherman at Durham Station on the 26th, and soon afterwards all the remaining Confederate soldiers followed their example. So ended the gigantic struggle, as to the conduct of which it is only necessary to quote, with a more general application, the envoi of a Federal historian, "It has not seemed necessary to me to attempt a eulogy of the Army of the Potomac or the Army of northern Virginia." The general terms of surrender were that the Confederates should give up all material, and sign a parole not to take up arms again. There were no manifestations of triumph or exultation on the part of the victors, the lot of the vanquished was made as easy as possible, and after a short time the armies melted into the mass of the people without disturbance or disorder. A general amnesty proclaimed by the president of the United States on the 29th of May was the formal ending of the Civil War.
35. Character of the War.—No undisciplined levies could have fought as did the armies on both sides. Grave faults the men had, from the regular's point of view. They required humouring, and their march discipline was very elastic. But in battle the "thinking bayonets" resolutely obeyed orders, even though it were to attack a Marye's Hill, or a "Bloody Angle," for they had undertaken their task and would carry it through unflinchingly. So much may be said of both armies. The great advantage of the Confederate—an advantage which he had in a less degree as against the hardier and country-bred Federal of the west—was that he was a hunter and rider born and bred, an excellent shot, and still not infrequently settled his quarrels by the duel. The town-bred soldier of the eastern states was a thoughtful citizen who was determined to do his duty, but he had far less natural aptitude for war than his enemy from the Carolinas or his comrade from Illinois or Kansas. At the same time the more varied conditions of urban life made him more adaptable to changes of climate and of occupation than the "Southron." Irish brigades served on both sides and shot each other to pieces as at Fredericksburg. They had the reputation of being excellent soldiers. The German divisions, on the other hand, were rarely as good as the rest. The leading of these men was in the hands, as a rule, of regular or ex-regular officers, who made many mistakes in their handling of large masses, but had been taught at West Point and on the Indian frontier to command men in danger, and administer them in camp. The volunteer officers rarely led more than a division. When given high command at once they usually failed, but the best of them rose gradually to the superior ranks; Logan, for instance, became an army commander, Sickles, Terry and others corps commanders. Cleburne, one of the best division commanders of the South, had been a corporal in the British army. Meagher, the leader of the "Irish brigade" at Fredericksburg, was the young orator of the "United Irishmen." But Lee, the Johnstons, McClellan, Grant and Sherman had all served in the old army. Most of them were young men in 1861. Stuart was twenty-eight, Sheridan thirty, Grant and Jackson under forty, while some of the subordinate generals were actually fresh from West Point.
36. Strategy and Tactics.—The roughness of much of the country gave a peculiar tone to the strategy of the combatants. Roads were untrustworthy, rivers swelled suddenly, advance and retreat were conditioned and compelled, especially in the case of the ill-equipped Confederates, by the exigencies of food supply. Long forward strides of the Napoleonic type were rarely attempted; "changes of base" were indeed made across country, and over considerable distances, as by Sherman in 1864, but ordinarily either the base and the objective were connected by rail or water, or else every forward step was, after the manner of Marlborough's time, organized as a separate campaign. Hence field fortifications played an unusually prominent part, time and material being available as a rule for works of solid construction. In isolated instances of more rapid campaigning—e.g. Antietam and Gettysburg—they were of subordinate importance. The attack and defence of these entrenchments led to tactical phenomena of unusual interest. Cavalry could not bring about the decision in such country, and sought a field for its restless activity elsewhere. Artillery had fallen, technically, far behind the infantry arm, and in face of long- range rifle fire could not annihilate the hostile line with case-shot fire as in the days of Napoleon. In a battle such as Chancellorsville or the Wilderness guns were almost valueless, since there was little open space in which they might be used. It thus fell to the infantry to attack and defend with its own weapons, and the defence was, locally, almost inexpugnable behind its tall breastworks. One line of works could be stormed, but there were almost always two or three retrenchments behind. The attacking infantry, who found it necessary to cross a fire-swept zone 1000 yds. broad, had to be used resolutely in masses, line following line, and each carrying forward the wrecks of its predecessor. Partial attacks were invariably costly failures. The use of masses was never put in practice more sternly than by Grant in 1864. At the same time, as has been said, the cavalry arm found plenty of work. The horses were not trained for European shock- tactics, nor did the country offer charging room, and though melees of mounted men engaging with sword and pistol were not infrequent, the usual method of fighting was dismounted fire action, which was practised with uncommon skill by the troopers on both sides. The far-ranging strategic "raid" was a notable feature of the war; freely employed by both sides, it was sometimes harmful, more usually profitable, especially to the South, by reason of the captures in material, the information acquired and the alarm and confusion created. These raids, and the more ordinary screening work, were never executed more brilliantly than by Lee's great cavalry general, "Jeb" Stuart, in Virginia, but the Federal generals, Pleasonton and Sheridan, did excellent work in the east, as also Wheeler and Forrest on the Confederate, Wilson and Grierson on the Federal, side in the west. The technical services, in which the mechanical skill and ingenuity of the American had full play, developed remarkable efficiency. Whether it was desired to build a railway bridge, disable a locomotive or cut a canal, the engineers were always ready with some happy expedient. On one occasion an infantry division of 8000 men repaired 102 miles of railway and built 182 bridges in 40 days, forging their own tools and using local resources. Many novelties, too, such as the field telegraph, balloons and signalling, were employed.
37. The Union and Confederate Navies.—The naval war had been likewise fruitful of lessons for the future. Though wooden ships were still largely employed, the ironclad even then had begun to take a commanding place, and the sailing ship at last disappeared from naval warfare. Mines, torpedoes and submarines were all employed, and with the "Monitor" may fairly be said to have begun the application of mechanical science to the uses of naval war. The Federal navy was enormously expanded. Three hundred and thirteen steamers were brought into the service. Sloops of an excellent type were built for work on the high seas, of which the celebrated "Kearsarge" was one. Gunboats were constructed so fast that they were called "ninety-day gunboats." Special reversible paddle steamers (called double-enders) were designed for service in the inlets and estuaries, and sixty-six ironclads were built and employed during the four years. Mississippi river steamers were armed with heavy guns and protected by armour, boiler-plates, cotton bales, &c., and some fast cruisers were constructed for ocean work, one of them actually reaching the high speed of 17.75 m. per hour. The existing Federal navy of 1861 already included some large and powerful modern vessels, such as the "Minnesota" and "Powhatan." To oppose them the Confederates, limited as they were for means, managed to construct various ironclads, and to improvise a considerable fleet of minor vessels, and, though a fighting navy never assembled under a Confederate flag-officer, the Southern warships found another more damaging and more profitable scope for their activity. It has been said that the blockade of the Confederate coast became in the end practically impenetrable, and that every attempt of the Confederate naval forces to break out was checked at once by crushing numerical preponderance. The exciting and profitable occupation of blockade- running led to countless small fights off the various harbours, and sometimes the United States navy had to fight a more serious action when some new "rebel" ironclad emerged from her harbour, inlet or sound.
38. Fort Fisher.—Many of the greater combats in which the navy was engaged on the coast and inland have been referred to above, and the fighting before Charleston, New Orleans, Mobile and Vicksburg is described in separate articles. One of the heaviest of the battles was fought at Fort Fisher in 1864. This place guarded the approaches to Wilmington, North Carolina. Troops under Butler and a large fleet under Admiral Porter were destined for this enterprise. An incendiary vessel was exploded close to the works without effect on the 23rd-24th of December, and the ships engaged on the 24th. The next day the troops were disembarked, only to be called off after a partial assault. Butler then withdrew, and Porter was informed on the 31st that "a competent force properly commanded," would be sent out. On the 8th of January 1865 General Terry arrived with the land forces, and the armada arrived off Fisher on the 12th. On the 13th, 6000 men were landed, covered by the guns of the fleet, and, after Porter had subjected the works to a terrific bombardment, Fisher was brilliantly carried by storm on the 15th. Reinforcements arriving, the whole force then marched inland to meet Sherman.
39. Other Naval Actions.—Apart from this, and other actions referred to, two incidents of the coast war call for notice—the career of the "Albemarle" and the duel between the "Atlanta" and the "Weehawken." The ironclad ram "Albemarle," built at Edwards' Ferry on the Roanoke river, had done considerable damage to the Federal vessels which, since Burnside's expedition to Newberne, had cruised in Albemarle Sound, and in 1864 a force of double-enders and gunboats, under Captain Melancton Smith, U.S.N., was given the special task of destroying the rebel ram. A naval battle was fought on the 5th of May 1864, in which the double-ender "Sassacus" most gallantly rammed the "Albemarle" and was disabled alongside her, and Smith's vessel and others, unarmoured as they were, fought the ram at close quarters. After this the ironclad retired upstream, where she was eventually destroyed in the most daring manner by a boat's crew under Lieutenant W. B. Cushing. Making his way up the Roanoke as far as Plymouth he there sank the ironclad at her wharf by exploding a spar-torpedo (October 27). On the 17th of June 1863 after a brief action the monitor "Weehawken" captured the Confederate ironclad "Atlanta" in Wassaw Sound, South Carolina. This duel resembled in its attendant circumstances the famous fight of the "Chesapeake" and the "Shannon." Captain John Rodgers, like Broke, was one of the best officers, and the "Weehawken," like the "Shannon," was known as one of the smartest ships in the service. Five heavy accurate shots from the Federal's turret guns crushed the enemy in a few minutes.
40. The Commerce-Destroyers.—Letters of marque were issued to Confederate privateers as early as April 1861, and Federal commerce at once began to suffer. When, however, surveillance became blockade, prizes could only with difficulty be brought into port, and, since the parties interested gained nothing by burning merchantmen, privateering soon died out, and was replaced by commerce-destroying pure and simple, carried out by commissioned vessels of the Confederate navy. Captain Raphael Sommes of the C.S.S. "Sumter" made a successful cruise on the high seas, and before she was abandoned at Gibraltar had made seventeen prizes. Unable to build at home, the Confederates sought warships abroad, evading the obligations of neutrality by various ingenious expedients. The "Florida" (built at Liverpool in 1861-1862) crossed the Atlantic, refitted at Mobile, escaped the blockaders, and fulfilled the instructions which, as her captain said, "left much to the discretion but more to the torch." She was captured by the U.S.S. "Wachusett" in the neutral harbour of Bahia (October 7, 1862). The most successful of the foreign-built cruisers was the famous "Alabama," commanded by Sommes and built at Liverpool. In the course of her career she burned or brought into port seventy prizes, fought and sank the U.S.S. "Hatteras" off Galveston, and was finally sunk by the U.S.S. "Kearsarge," Captain Winslow, off Cherbourg (June 19, 1864). The career of another promising cruiser, the "Nashville," was summarily ended by the Federal monitor "Montauk" (February 28, 1863). The "Shenandoah" was burning Union whalers in the Bering Sea when the war came to an end. None of the various "rams" built abroad for the "rebel" government ever came into action. The difficulties of coaling and the obligations of neutrality hampered these commerce-destroyers as much as the Federal vessels that were chasing them, but, in spite of drawbacks, the guerre de course was the most successful warlike operation undertaken by the Confederacy. The mercantile marine of the United States was almost driven off the high seas by the terror of these destructive cruisers.
41. Cost of the War.—The total loss of life in the Union forces during the four years of war was 359,528, and of the many thousands discharged from the services as disabled or otherwise unfit, a large number died in consequence of injuries or disease incurred in the army. The estimate of 500,000 in all may be taken as approximately correct. The same number is given as that of the Southern losses, which of course fell upon a much smaller population. The war expenditure of the Federal government has been estimated at $3,400,000,000; the very large sums devoted to the pensions of widows, disabled men, &c., are not included in this amount (Dodge). In 1879 an estimate made of all Federal war expenses up to that date, including pension charges, interest on loans, &c., showed a total of $6,190,000,000 (Dewey, Financial History of the United States.)
BIBLIOGRAPHY.—The United States government's Official Records of the Union and Confederate Armies (70 vols., most of which are divided into two or three "parts," and atlas, 1880-1900) include every important official document of either side that it was possible to obtain in the course of many years' work. A similar but less voluminous work is the Records of the Union and Confederate Navies (1894- ); The Rebellion Record (1862-1868), edited by F. W. Moore, a contemporary collection, has been superseded to a great extent by the official records, but is still valuable as a collection of unofficial documents of all kinds. Battles and Leaders of the Civil War (1887-1889) is a series of papers, covering the whole war, written by the prominent commanders of both sides. The sixteen volumes of the Campaigns of the Civil War (1881-1882) and the Navy in the Civil War (1883) (written by various authors) are of very unequal merit, but several of the volumes are indispensable to the study of the Civil War. Of general works the following are the best:- -Comte de Paris, History of the Civil War in America, translated from the French (1875-1888); Horace Greeley, The American Conflict (1864-1866); J. Scheibert, Der Burgerkrieg i. d. Nordam. Freistaaten (Berlin, 1874); Wood and Edmonds, Civil War in the United States (London, 1905); T. A. Dodge, Bird's Eye View of our Civil War (revised edition, 1887); E. A. Pollard, A Southern History of the War (1866). The contemporary accounts mentioned should be studied with caution. Of critical works, J. C. Ropes, The Story of the Civil War (1894-1898); G. F. R. Henderson, Stonewall Jackson and the American Civil War (London, 1898) and The Science of War, chapters viii. and ix. (London, 1905); C. C. Chesney, Essays in Military Biography (1874); Freytag-Loringhoven, Studien uber Kriegfuhrung, 1861-1865 (Berlin, 1901-1903), are the most important. Publications of the Military Historical Society of Massachusetts (vols. i.-x., 1881 onwards) also comprise critical accounts of nearly all the important campaigns. A critical account of the Virginian operations and the Chickamauga campaign is Gen. E. P. Alexander's Military Memoirs of a Confederate (1906). C. R. Cooper, Chronological and Alphabetical Record of the Great Civil War (Milwaukee, 1904) may be mentioned as a work of reference. A fairly complete bibliography will be found in J. N. Larned, Literature of American History (Boston, 1902), and useful lists in Ropes, op. cit., and in the Cambridge Modern History, vol. vii. p. 812. For biographies, memoirs and general works, see the lists appended to the various biographical articles and to the articles UNITED STATES and CONFEDERATE STATES. (C. F. A.)
AMERICAN LAW. The laws of the various states and territories of the United States rest at bottom on the same foundation as those of England, namely, the English common law as it existed at the beginning of the 17th century. (See ENGLISH LAW.) The only exceptions worth noting are to be found in the state of Louisiana, the territory of New Mexico, and the acquisitions following the Spanish war of 1898. Those derive most of their law from France or Spain, and thus remotely from the principles of Roman jurisprudence. A part also, but comparatively a small part, of the law of Texas, Missouri, Arizona and the Pacific states comes from similar sources. The United States as a whole has no common law, except so far as its courts have followed the rules of English common-law procedure in determining their own. Most of the positive law of the United States comes from the several states. It is the right of each state to regulate at its pleasure the general relations of persons within its territory to each other, as well as all rights to property subject to its jurisdiction. Each state has also its own system of adjective law. The trial courts of the United States of original jurisdiction follow in general the practice of the state in which they sit as to procedure in cases of common-law character. As to that in equity, or what means the same thing, chancery causes, they follow in general the practice of the English court of chancery as it existed towards the close of the 18th century, when the original Judiciary Act of the United States was adopted. The public statutes of the United States are to be found in the Revised Statutes of 1873, and in the succeeding volumes of the Statutes at Large, enacted by each Congress. Those of each state and territory are printed annually or biennially as they are enacted by each legislature, and are commonly revised every fifteen or twenty years, the revision taking the place of all former public statutes, and being entitled Revised Statutes, General Statutes, or Public Laws. The private or special laws of each state, so far as such legislation is permitted by its constitution, are in some states published separately, and made the subject of similar compilations or revisions; in others they are printed with the public session laws. American courts are often given power by statute to make rules of procedure which have the force of laws. Municipal subdivisions of a state generally have authority from the legislature to make ordinances or by-laws on certain subjects, having the character of a local law, with appropriate sanctions, commonly by fine or forfeiture.
Law in the United States has been greatly affected by the results of the Civil War. During its course (1861-1865) the powers of the president of the United States may be said to have been re-defined by the courts. It was its first civil war, and thus for the first time the exercise of the military authority of the United States within a state which had not sought its aid became frequent and necessary. Next followed the amendments of the Constitution of the United States having for their special purpose the securing beyond question of the permanent abolition of slavery and the civil and political rights of the coloured race. At the outset the Supreme Court of the United States was inclined to treat them as having a very limited operation in other directions. One of the provisions of the XIVth Amendment is that no state shall deny to any person within its jurisdiction the equal protection of the laws. The benefit of this guarantee was claimed by the butchers of New Orleans, in contending against a monopoly in respect of the slaughter of cattle granted by the state of Louisiana to a single corporation. Their suit was dismissed by the Supreme Court in 1873, with the expression of a doubt whether any action of a state not directed by way of discrimination against the negroes as a class, or on account of their race, would ever be held to come within the purview of the provision in question.1 The chief justice and three of his associates dissented from the judgment, holding that the XIVth Amendment did protect the citizens of the United States against the deprivation of their common rights by state legislation.2 Public sentiment supported the view of the minority, and it was not long before changes in the personnel of the court, occurring in common course, led it to the same conclusions. The protection of the XIVth Amendment is now invoked before it more frequently than is that afforded by any other article of the Constitution. In one of its recent terms twenty-one cases of this nature were decided.3 Very few of them related to the negro. Since the decision in the Slaughter-House Cases, the controversies as to the constitutional rights of the negro have been comparatively infrequent, but there has been a great and steadily increasing number in all the courts in the country, involving questions of discrimination in favour of or against particular individuals, or of changes affecting the rights of parties in the accustomed forms of judicial procedure.
Down to 1868, when this amendment was adopted, it was, as to most matters, for the state alone to settle the civil rights and immunities of those subject to its jurisdiction. If they were to be free from arbitrary arrests, secure in liberty and property, equal in privilege and entitled to an impartial administration, it was because the constitution of the state so declared. Now they have the guarantee of the United States that the state shall never recede from these obligations. This has readjusted and reset the whole system of the American law of personal rights.4
The Supreme Court of the United States has used the great power thus confided to it with moderation. Its general rules of decision are well stated in these words of Mr Justice Brown, found in one of its recent opinions:—
"In passing upon the validity of legislation, attacked as contrary to the XIVth Amendment, it has not failed to recognize the fact that the law is, to a certain extent, a progressive science; that in some of the states methods of procedure, which at the time the constitution was adopted were deemed essential to the protection and safety of the people or to the liberty of the citizen, have been found to be no longer necessary; that restrictions which had formerly been laid upon the conduct of individuals, or of classes of individuals, had proved detrimental to their interests; while, upon the other hand, certain other classes of persons, particularly those engaged in dangerous or unhealthful employments, have been found to be in need of additional protection. Even before the adoption of the constitution, much had been done toward mitigating the severity of the common law, particularly in the administration of its criminal branch. The number of capital crimes, in this country at least, had been largely decreased. Trial by ordeal and by battle had never existed here, and had fallen into disuse in England. The earlier practice of the common law, which denied the benefit of witnesses to a person accused of felony, had been abolished by statute, though, so far as it deprived him of the assistance of counsel and compulsory process for the attendance of his witnesses, it had not been changed in England. But, to the credit of her American colonies, let it be said that so oppressive a doctrine had never obtained a foothold there. The 19th century originated legal reforms of no less importance. The whole fabric of special pleading, once thought to be necessary to the elimination of the real issue between the parties, has crumbled to pieces. The ancient tenures of real estate have been largely swept away, and land is now transferred almost as easily and cheaply as personal property. Married women have been emancipated from the control of their husbands, and placed upon a practical equality with them with respect to the acquisition, possession and transmission of property. Imprisonment for debt has been abolished. Exemptions from executions have been largely added to, and in most of the states homesteads are rendered incapable of seizure and sale upon forced process. Witnesses are no longer incompetent by reason of interest, even though they be parties to the litigation. Indictments have been simplified, and an indictment for the most serious of crimes is now the simplest of all. in several of the states grand juries, formerly the only safeguard against a malicious prosecution, have been largely abolished, and in others the rule of unanimity, so far as applied to civil cases, has given way to verdicts rendered by a three-fourths majority. This case does not call for an expression of opinion as to the wisdom of these changes, or their validity under the XIVth Amendment, although the substitution of prosecution by information in lieu of indictment was recognized as valid in Hurtado v. California, 110 U.S. 516. They are mentioned only for the purpose of calling attention to the probability that other changes of no less importance may be made in the future, and that while the cardinal principles of justice are immutable, the methods by which justice is administered are subject to constant fluctuation, and that the Constitution of the United States, which is necessarily and to a large extent inflexible and exceedingly difficult of amendment, should not be so construed as to deprive the states of the power to amend their laws so as to make them conform to the wishes of the citizens as they may deem best for the public welfare without bringing them into conflict with the supreme law of the land. Of course, it is impossible to forecast the character or extent of these changes, but in view of the fact that from the day Magna Carta was signed to the present moment, amendments to the structure of the law have been made with increasing frequency, it is impossible to suppose that they will not continue, and the law be forced to adapt itself to new conditions of society, and particularly to the new relations between employers and employees, as they arise."5
The Civil War deeply affected also the course of judicial decision in the southern states. During its progress it engaged the attention of a very large part of the population, and the business of the courts necessarily was greatly lessened. Upon its close political power passed, for a time, into new hands, and many from the northern and western states took prominent positions both at the bar and on the bench. The very basis of society was changed by the abolition of slavery. New state constitutions were adopted, inspired or dictated by the ideas of the North. The transport system was greatly extended, and commerce by land took to a large extent the place formerly filled by commerce by navigation. Manufacturing came in to supplement agricultural industry. Cities grew and assumed a new importance. Northern capital sought investment in every state. It was a natural consequence of all these things that the jurisprudence of the South should come to lose whatever had been its distinctive character. The unification of the nation inevitably tended to unify its law.
The Bar Association.
An important contribution towards this result was made by the organization of the American Bar Association in 1878. Of the fourteen signers of the call for the preliminary conference, five were from the southern states. Its declared objects were "to advance the science of jurisprudence, promote the administration of justice and uniformity of legislation throughout the Union, uphold the honour of the profession of the law, and encourage cordial intercourse among the members of the American Bar."
Law schools.
Largely through its efforts, the American law schools have taken on a new character. The course of study has been both broadened and prolonged, and the attendance of the students has increased in full proportion to the additions to the facilities for obtaining a more thorough training in the profession. When the association commenced its labours, those studying law in the offices of practising lawyers very largely outnumbered those found in the law school. The proportion is now reversed. During the year 1900, for instance, the state board of law examiners in New York examined 899 applicants for admission to the bar of that state. Of these all but 157 had received their legal education wholly or in part at a law school.6 In 1878 few law schools had adopted any system of examination for those desiring to enter them. Such a requirement for admission is now common. In only one school were opportunities then afforded for advanced studies by graduate students with a view to attaining the doctorate in law. Courses of this description are now offered by several of the university schools.
Reports.
A more scientific character has thus been taken on by American law. It is noticeable both in legal text-books and in the opinions of the courts of last resort. In the latter precision of statement and method in discussion are invited by the uniform practice of preparing written opinions. The original practice of reading these from the bench has been generally discontinued. They are simply handed down to an official reporter for publication, which is done at the expense of the government by which the court is commissioned. With the judicial reports of each state the lawyers of that state are required to be familiar; and this is rendered possible, even in the larger ones, by state digests, prepared every few years by private enterprise. Outside of the state their circulation is comparatively limited, though sets of all are generally found in each state library, and of many in the Bar libraries at the principal county seats. The private libraries of lawyers in large practice also often contain the reports of adjoining and sometimes those of distant states as well as those of their own and of the Supreme Court of the United States. The decisions of one state, however, are now best known in others through unofficial reports. One large publishing concern prints every case decided in the courts of last resort. They are published in several distinct series, those, for instance, coming from the northern Atlantic states being grouped together as the Atlantic Reporter, and those from the states on the Pacific coast as the Pacific Reporter. Another house has published a compilation professing to give all the leading American cases from the first to the latest volume of reports. Another makes a similar selection from the decisions of each year as they appear, and publishes them with critical annotations. There are also annual digests of a national character, comprehending substantially all American cases and the leading English cases reported during the preceding year.
These various publications are widely diffused, and so the American lawyer is enabled, in preparing for the argument of any cause involving questions of difficulty, to inform himself with ease of such precedents as may apply. A court in Texas is thus as likely to be made acquainted with a decision in Maine or Oregon as with one in any nearer state, and in the development of American law all American courts are brought in close touch with each other.
English and American law.
This tendency has been advanced by the steady growth of codification. That is beginning also to serve to bring English and American law nearer together in certain directions. A Negotiable Instruments Act, promoted by the American Bar Association and prepared by a conference of commissioners appointed by the several states to concert measures of uniform legislation, has been adopted in the leading commercial states. It is founded upon the English "Chalmers's Act," and the English decisions giving a construction to that have become of special importance. The acts of parliament known as the Employers' Liability Act and the Railway and Canal Traffic Act have also served as the foundation of similar legislation in the United States, and with the same result. Modern English decisions are, however, cited less frequently in American courts than the older ones; and the older ones themselves are cited far less frequently than they once were. In the development of their legislation, England and the United States have been in general harmony so far as matters of large commercial importance are concerned, but as to many others they have since 1850 drawn apart. Statutes, at one point or another, probably now affect the disposition of most litigated causes in both countries. Their application, therefore, must serve more or less to obscure or displace general principles, which might otherwise control the decision and make it a source of authority in foreign tribunals. The movement of the judicial mind in the United States, and also its modes and form of expression, have a different measure from that which characterizes what comes from the English bench. American judges are so numerous, and (except as to the Supreme Court of the United States) the extent of their territorial jurisdiction so limited, that they can give more time to the careful investigation of points of difficulty, and also to the methodical statement of their conclusions. Whatever they decide upon appeal being announced in writing, and destined to form part of the permanent published records of the state, they are expected and endeavour to study their words and frame opinions not only sound in law but unobjectionable as literary compositions.
The choice of American judges, particularly in the older states, has been not uninfluenced by these considerations. Marshall, Bushrod Washington, Story, Kent, Ware, Bradley, and many of their contemporaries and successors, were put upon the bench in part because of their legal scholarship and their power of felicitous expression. Hence the better American opinions have more elaboration and finish than many which come from the English courts, and are more readily accepted as authorities by American judges. But the great multiplication of reports has so widened the field of citation as in effect to reduce it. Each of the larger and older states has now a settled body of legal precedent of its own, beyond which its judges in most cases do not look. If a prior decision applies, it is controlling. If there be none, they prefer to decide the case, if possible, on principle rather than authority.
While the state courts are bound to accept the construction placed upon the Constitution and laws of the United States by the Supreme Court of the United States, and thus uniformity of decision is secured in that regard, the courts of the United States, on the other hand are as a rule obliged to accept in all other particulars the construction placed by the courts of each state on its constitution and laws. This often gives a seeming incongruity to the decisions of the Supreme Court of the United States. A point in a case coming up from one judicial circuit may be determined in a way wholly different from that followed in a previous judgment in a cause turning upon the same point, but appealed from another circuit, because of a departure from the common law in one state which has not been made in another. In view of this, a doctrine originally proposed by Mr Justice Story in 18427 has not been infrequently invoked of late years, which rests upon the assumed existence of a distinctive federal jurisprudence of paramount authority as to certain matters of general concern, as for example those intimately affecting commerce between the states or with foreign nations. The consequence is that a case involving such questions may be differently adjudged, according as it is brought in a state or in a federal court.8
The divergences now most noticeable between English and American law are in respect of public control over personal liberty and private property, criminal procedure and the scope of the powers of municipal corporations.
Under the constitutional provision that no one shall be deprived of life, liberty or property without due process of law, American courts frequently declare void statutes which in England would be within the acknowledged powers of parliament. These provisions are liberally expounded in favour of the individual, and liberty is held to include liberty of contract as well as of person. Criminal procedure is hedged about with more refinements and safeguards to the accused than are found in England, and on the other hand, prosecutions are more certain to follow the offence, because they are universally brought by a public officer at public expense. The artificiality of the proceedings is fostered by a general right of appeal on points of law to the court of last resort. It is in criminal causes involving questions of common-law liability and procedure9 that English law-books and reports are now most frequently cited. American municipal corporations are confined within much narrower limits than those of England, and their powers more strictly construed.
Trial by jury.
Trial by jury in civil causes seems to be declining in public esteem. The expenses necessarily incident to it are naturally increasing, and the delays are greater also from a general tendency, especially in cities, where most judicial business is transacted, to reduce the number of hours a day during which the court is in session. The requirement of unanimity is dispensed with in a few states, and it has been thus left without what many deem one of its essential features. The judge interposes his authority to direct and expedite the progress of the trial less frequently and less peremptorily than in England. A jury is waived more often than formerly, and there is a growing conviction that, with a capable and independent judiciary, justice can be looked for more confidently from one man than from thirteen.
The United States entered on the work of simplifying the forms of pleading earlier than England, but has not carried it so far. Demurrers have not been abandoned, and in some states little has been done except to replace one system of formality by another hardly less rigid. The general plan has been to codify the laws of pleading by statute. In a few states they have proceeded more nearly in accordance with the principles of the English Judicatare Act, and left details to be worked out by the judges, through rules of court.10
The legislature and the courts.
Most of the state constitutions assume that the powers of government can be divided into three distinct departments, executive, legislative and judicial; and direct such a distribution. In thus ignoring the administrative functions of the state, they have left a difficult question for the courts, upon which the legislature often seeks in part to cast them. The general tendency has been to construe, in such circumstances, the judicial power broadly, and hold that it may thus be extended over much which is rather to be called quasi-judicial.11 A distinction is taken between entrusting jurisdiction of this character to the courts, and imposing it upon them. Where the statute can be construed as simply permissive, the authority may be exercised as a matter of grace, when it would be peremptorily declined, were the meaning of the legislature that it must be accepted.12 The courts, for similar reasons, have generally declined (in the absence of any constitutional requirement to that effect) to advise the legislature, at its request, whether a proposed statute, if enacted, would be valid. While its validity, were it to be enacted, might become the subject of a judicial decision, it is thought for that reason, if for no other, to be improper to prejudge the point, without a hearing of parties interested. The constitutions of several states provide for such a proceeding, and in these the Supreme Court is not infrequently called upon in this way, and gives responses which are always considered decisive of legislative action, but would not be treated as conclusive in any subsequent litigation that might arise.
Police power of states.
The general trend of opinion in the Supreme Court of the United States since 1870, upon questions other than those arising under the XIVth Amendment, has been towards recognizing the police power of the several states as entitled to a broad scope. Even, for instance, in such a matter as the regulation of commerce between different states, it has been upheld as justifying a prohibition against running any goods trains on a Sunday, and a requirement that all railway cars must be heated by steam.13 In the "Granger Cases,"14 the right of the state to fix the rate of charges for the use of a grain elevator for railway purposes, and for general railway services of transportation, was supported, and although the second of these was afterwards overruled,15 the principle upon which it was originally rested was not shaken.
On the other hand, reasons of practical convenience have necessarily favoured the substantial obliteration of state lines as to the enforcement of statutory private rights. Massachusetts in 1840, six years before the passage of Lord Campbell's Act, provided a remedy by indictment for the negligent killing of a man by a railway company, a pecuniary penalty being fixed which the state was to collect for the benefit of his family. In most of the other states by later statutes a similar result has been reached through a civil action brought by the executor or administrator as an agent of the law. In some, however, the state must be the plaintiff; in others the widow, if any there be. The accident resulting in death often occurs in a state where the man who was killed does not reside, or in which the railway company does not have its principal seat. It may therefore be desirable to sue in one state for an injury in another. Notwithstanding such an action is unknown to the common law, and rests solely on a local statute, the American courts uniformly hold that, when civil in form, it can be brought under such statutes in any state the public policy of which is not clearly opposed to such a remedy. In like manner, the responsibilities of stockholders and directors of a moneyed corporation, under the laws of the state from which the charter is derived, are enforced in any other states in which they may be found. Thus a double liability of stockholders to creditors, in case of the insolvency of the company, or a full liability to creditors of directors who have made false reports or certificates regarding its financial condition, is treated as of a contractual nature, and not penal in the international sense of that term.16 As a judgment of one state has equal force in another, so far as the principle of res adjudicata is concerned, the orders of a court in a state to which a corporation owes its charter, made in proceedings for winding it up, may be enforced to a large extent in any other. The shareholders are regarded as parties by representation to the winding- up proceedings, and so bound by decrees which are incidental to it.17
The provisions of the United States law on different subjects and the literature concerning them are given in the separate articles. See the bibliography to the article LAW; also Cooley on The Constitutional Limitations which rest upon the Legislative Power of the States of the American Union; Andrews on American Law; and Russell on The Police Power of the State, and Decisions thereon as illustrating the Development and Value of Case Law. (S. E. B.)
1 The Slaughter-House Cases, 16 Wallace's Reports, 36, 81.
2 Ibid. 89, 111, 129.
3 Guthrie on the Fourteenth Amendment, 27.
4 Baldwin's Modern Political Institutions, 111, 112.
5 Holden v. Hardy, 169 United States Reports, 336, 385-387.
6 Columbia Law Review, i. 99.
7 Swift v. Tyson, 16 Peters' Reports, 1, 19.
8 See Forepaugh v. Delaware, Lackawanna & Western Railroad Company, 128 Pennsylvania State Reports, 267; Faulkner v. Hart, 82 New York Reports, 313; and Lake Shore & Michigan Southern Railway Company v. Prentice, 147 United States Reports, 101.
9 See, as examples, Commonwealth v. Rubin, 165 Massachusetts Reports, 453, in which Holmes, C.J., traces the rule that, if a man abuse an authority given him by the law, he becomes a trespasser ab initio, back to the Year Books; and Commonwealth v. Cleary, 172 Massachusetts Reports, 175, in which the same judge refers to Glanville and Fleta as authority for the proposition that the admission in evidence, in cases of rape, of complaints made by the woman soon after the commission of the offence is a perverted survival of the old rule that she could not bring an appeal unless she had made prompt hue and cry.
10 This has been carried furthest in Connecticut. See Botsford v. Wallace, 72 Connecticut Reports, 195.
11 Norwalk Street Railway Company's Appeal, 69 Connecticut Reports, 576; 38 Atlantic Reporter, 708.
12 Zanesville v. Zanesville Telephone Company, 63 Ohio State Reports, 442; 59 North-Eastern Reporter, 109.
13 New York Railroad v. New York, 165 United States Reports, 628.
14 Munn v. Illinois, 94 United States Reports, 113; Chicago Railroad Company v. Iowa, ibid. 155.
15 Wabash Railway Company v. Illinois, 118 United States Reports, 557; Reagan v. Farmers' Loan and Trust Company, 154 United States Reports, 362.
16 Huntington v. Attrill, 146 United States Reports, 657.
17 Great Western Telegraph Company v. Purdy, 162 United States Reports, 329; Fish v. Smith, 73 Connecticut Reports, 377; 47 Atlantic Reporter, 710.
Beginnings.
The earliest books which are commonly described as the beginnings of American literature were written by men born and bred in England; they were published there; they were, in fact, an undivided part of English literature, belonging to the province of exploration and geographical description and entirely similar in matter and style to other works of voyagers and colonizers that illustrate the expansion of England. They contain the materials of history in a form of good Elizabethan narrative, always vigorous in language, often vivid and picturesque. John Smith (1579-1631) wrote the first of these, A True Relation of such Occurrences and Accidents of Note as hath happened in Virginia (1608), and he later added other accounts of the country to the north. William Strachey, a Virginian official of whom little is known biographically, described (1610) the shipwreck of Sir Thomas Gates on the Bermudas, which is believed to have yielded Shakespeare suggestions for The Tempest. Colonel Henry Norwood (d. 1689), hitherto unidentified, of Leckhampton, Gloucestershire, a person eminent for loyalty in the reign of Charles I. and distinguished in the civil wars, later governor of Tangiers and a member of parliament for Gloucester, wrote an account of his voyage to Virginia as an adventurer, in 1649. These are characteristic works of the earliest period, and illustrate variously the literature of exploration which exists in numerous examples and is preserved for historical reasons. The settlement of the colonies was, in general, attended by such narratives of adventure or by accounts of the state of the country or by documentary record of events. Thus George Alsop (b. 1638) wrote the Character of the Province of Maryland (1666), and Daniel Denton a Brief Description of New York (1670), and in Virginia the progress of affairs was dealt with by William Stith (1689-1755), Robert Beverly (f. 1700), and William Byrd (1674-1744). Each settlement in turn, as it came into prominence or provoked curiosity, found its geographer and annalist, and here and there sporadic pens essayed some practical topic. The product, however, is now an indistinguishable mass, and titles and authors alike are found only in antiquarian lore. The distribution of literary activity was very uneven along the sea-board; it was naturally greatest in the more thriving and important colonies, and bore some relation to their commercial prosperity and political activity and to the closeness of the connexion with the home culture of England. From the beginning New England, owing to the character of its people and its ecclesiastical rule, was the chief seat of the early literature, and held a position apart from the other colonies as a community characterized by an intellectual life. There the first printing press was set up, the first college founded, and an abundant literature was produced.
The characteristic fact in the Puritan colonies is that literature there was in the hands of its leading citizens and was a chief concern in their minds. There were books of exploration and description as in the other colonies, such as William Wood's (d. 1639) New England's Prospect (1634), and John Josselin's New England's Rarities (1672), and tales of adventure in the wilderness and on the sea, most commonly described as "remarkable providences," in the vigorous Elizabethan narrative; but besides all this the magistracy and the clergy normally set themselves to the labour of history, controversy and counsel, and especially to the care of religion. The governors, beginning with William Bradford (1590-1657) of Plymouth, and John Winthrop (1588-1649) of Massachusetts Bay, wrote the annals of their times, and the line of historians was continued by Winslow, Nathaniel Morton, Prince, Hubbard and Hutchinson. The clergy, headed by John Cotton (1585-1652), Thomas Hooker (1586-1647), Nathaniel Ward (1579- 1652), Roger Williams (1600-1683), Richard Mather (1596-1669), John Eliot (1604-1690), produced sermons, platforms, catechisms, theological dissertations, tracts of all sorts, and their line also was continued by Shepard, Norton, Wise, the later Mathers and scores of other ministers. The older clergy were not inferior in power or learning to the leaders of their own communion in England, and they commanded the same prose that characterizes the Puritan tracts of the mother country; nor did the kind of writing deteriorate in their successors. This body of divines in successive generations gave to early New England literature its overwhelming ecclesiastical character; it was in the main a church literature, and its secular books also were controlled and coloured by the Puritan spirit. The pervasiveness of religion is well illustrated by the three books which formed through the entire colonial period the most popular domestic reading of the Puritan home. These were The Bay Psalm Book (1640), which was the first book published in America; Michael Wigglesworth's (1631-1705) Day of Doom (1662), a doggerel poem; and the New England Primer (c. 1690), called "the Little Bible." The sole voice heard in opposition was Thomas Morton's satirical New English Canaan (1637), whose author was sent out of the colony for the scandal of Merrymount, but satire itself remained religious in Ward's Simple Cobbler of Agawam (1647). Poetry was represented in Anne Bradstreet's (1612-1672) The Tenth Muse lately sprung up in America (1650), and was continued by a succession of doggerel writers, mostly ministers or schoolmasters, Noyes, Oakes, Folger, Tompson, Byles and others. The world of books also included a good proportion of Indian war narratives and treatises relating to the aborigines. The close of the 17th century shows literature, however, still unchanged in its main position as the special concern of the leaders of the state. It is Chief-Justice Samuel Sewall's (1652-1730) Diary (which remained in manuscript until 1878) that affords the most intimate view of the culture and habits of the community; and he was known to his contemporaries by several publications, one of which, The Selling of Joseph (1700), was the first American anti-slavery tract.