Orations & essays of Edward John Phelps, diplomat and statesman

Contents

PAGE

Prefatory Note v

Memoir vii

Prefatory Note

The orations and essays of Mr. Phelps contained in this volume have been selected from a large number of his posthumous works. They cover a wide range of subjects, professional, literary, and biograj)hical, all treated with the same free hand and in liis customary clear, eloquent, and forceful style. The selections illustrate his stjie, his intellectual fibre, his unflinching courage, his strength, his mental grasp, his lofty and independent bearing in thought and action, and constitute a fitting memorial of the man.

J. G. McC.

of the seed of New England civilization of which this generation is reaping harvest.

William Phelps emigrated from England to this country in 1630 and founded the historic town of Windsor, Connecticut. His descendants for several generations filled prominent positions in civil life during the colonial period. John Phelps was an officer in the war of the American Revolution. Hon. Samuel S. Phelps, his son, was the father of Edward J. Phelps, and was a native of Litchfield, Connecticut. He graduated from Yale College in 181 1, and the year following removed to Middlebury, Vermont, where he resided until his death, in 1855. Soon after his arrival in Middlebury he was admitted to the bar, and entered at once upon a brilliantly successful professional career, which culminated, while yet a yoinig man, in his elevation to the Supreme Court of the State. At the bar he was the acknowledged leader, and his judicial service was not less distinguished. His judicial utterances were models of style in clearness and force of statement. He resigned from the bench to enter the United States Senate, in which he served twelve j^ears by election, and, later, one year by executive appointment, hi the roll of the Senate at that period are the names of Webster, Calhoun, Silas Wright, Chase, Benton, Clay, and others eminent if less famous. Chief Justice Chase once told the writer that in power of clear, convincing statement Judge Phelps was not excelled by any Senator of his time.

Judge Phelps was what might be termed regal in person. Of commanding stature, to rare symmetry of form he added a dignity of bearing which always commanded attention and admiration. The writer

viii has been thus particular in describing the mental and physical qualities of the sire, because the same characteristics reappeared in marked degree in his more distinguished son.

Mr. Phelps's mother died in his childhood. None of her contemporaries are living, but the fragrance of her memory survives. In grace and beauty of person and character she was of the type of womanhood which attracts and attaches all who come within the sphere of its influence.

From such stock came Edward John Phelps.

He was born July ii, 1822; entered Middlebury College at the early age of fourteen, and graduated therefrom in 1840. He taught a family school in Virginia for a year. The year following he attended a course of lectures in New Haven Law School. Returning to Middleburj', he studied law in the office of Hon. Horatio Seymour, and was admitted to the bar in 1843. He entered immediately upon the active practice of his profession. His success was instant and complete.

His first appearance in court was marked bj' the same easy grace, perfect self-possession, self-masterj', clear perception and statement of points in question, and the same play of wit and apt illustration which distinguished his professional efforts in his mature and later life. He seemed to the writer, who was a youtliful witness of his earliest efforts, to spring into the arena fully trained and equipped, versatile in gifts, with every faculty alert, and under instant and absolute control.

He was not a case lawyer. He was a great law^^er. He understood law as a science. He was thoroughly

ix grounded in its great fundamental principles. He could analyze and generalize equally well. He easily made his way, through intricacies which puzzle and confound the mere case lawj-er, to the fundamental principle which solved the problem. He would have made an admirable Chief Justice of the United States Supreme Court, an office he deserved and would have received but for the interference of a miserable political cabal. That great office would have been the fitting close of his professional career.

As it was, however, it had brilliant culmination in the great international tribunal at Paris, on the Bering Sea controversy. Under appointment by President Harrison, in 1893, he served as senior counsel for the United States government in that august covirt. His closing argument, extending over a period of eleven days, and covering three hundred and twenty-five printed pages of the official report of the proceedings, was an exhaustive, learned, and statesmanlike review of the history of the case, and of the j^rinciples of international law applicable thereto. At the close of the argument, M. de Courcelles, the president of the tribiuial, said to Mr. Phelps, in the name of the Court, after allusion to the difficult part he had discharged : " It (the task) has been discharged in such a manner as fully to deserve our admiration, blending the deep science of the lawyer with literary refinement and diplomatic dignitj'. I beg I may be allowed to consider the laurel you have won at this cosmopolitan bar as a fair addition to the wreath of honors you have conquered on different fields, both in the New and the Old World."

But it should be said that Mr. Phelps was more than a mere lawyer. He possessed those gifts of wit and fancy which enriched and enhvened the driest themes. His tact was equal to his wit. He would flash a playful, mirth-provoking ilkistration into an erudite discussion of a legal problem, to the amused relief of a grave Court, and pass on without a break in the severe logic of his argument.

Who but Mr. Phelps could have convulsed Court and Bar by inimitably fiuinj' comments on the dry doctrine of estoppel en pais in a Vermont cause celehre, now historic?

His able and scholarly address on Chief Justice Marshall before the American Bar Association, at Saratoga, in 1879, commanded the enthusiastic admiration of representative lawyers assembled from all parts of the country, and extended his reputation, not only as an able lawj-er, but also as a man of broad literary culture and statesmanlike quality.

General recognition of his eminent ability and accomplishments came to him later in his life. He was more than three-score years old, in 188,5, ^\■hen President Cleveland sent him to the Court of St. James as resident American Minister. With what unqualified success he acquitted himself in this arena is known and acknowledged on both sides of the Atlantic. In the new and broader field of diplomacj' and statesmanshii) his success was as eminent as in his professional life.

He was a master in the art of letter-writing. His familiar letters are charming and inimitable, hi these he gave fidl play to his wit and fancv. They reveal the sweet, genial temper of the man no less than his versatility.

The same qualities pervaded his familiar conversa-

xi tion. His discourse, oral and written, was clear, concise, and elegant.

He had such mental integrity' and clearness of mental vision, such facility and felicitj" of expression, such aptitude in illustration, such sense of fitness which sureh' set limit to undue and imwise extravagances of thought or expression, such culture and learning, combined with such genial, graceful, and winning personality, that he possessed the rare requisites of a born teacher, for the term nascitur non fit applies to the teacher not less than to the poet. His lectures on medical jurisprudence in the Vermont Universit}', on constitutional law at Harvard University, and at Yale as Kent professor of law from 1881 to the date of his death, at New Haven, March 9, 1900, illustrated his peculiar gifts as a teacher.

In the class-room his exposition of recondite themes was masterly; stripping them of technical verbiage, he laid bare in clear, simple terms the basic principle, and inquiry could go no further. Nor was such exposition ever barren, but always enlivened at intervals by some witty or humorous turn, which, while it amused his pupil, served also to emphasize the point in hand. He loved the law and could vitalize its principles. In the class-room his very personality was an inspiration.

He was artistic in temperament in every fibre of his being. He was affluent in .sympathy with the best and most beautiful in art and nature and humanity. He was high-souled, and so was fastidious. He loved what was most beautiful and harmonious in the composition of colors, what was most graceful and symmetrical in form.

xii

He loved the mountains of Vermont. He loved the forests that crown them and the brooks that wind and sing beneath their shade. He loved the wild note of the hermit tliriish and the odor of the woods.

He loved music, especially the old melodies which so sweetly interpret the old ballads of England, Scotland, and Ireland.

A nature so keenl}^ attuned to harmonies must be sensitive to discords, and he had instinctive dislike of every shade of vulgarity, and hatred of shams and hj'pocrisy. He was guiltless of pretence; he alwavs had the courage of his convictions and was fearless in their expression.

He loved his friends with loyal steadfastness. In their sorrows and trials he was as tender and S3'mpathetic as a woman. His courtesy was unfailing. His wit never woiuided nor offended. It was impersonal.

He loved and was familiar with the best English literature. His vigorous, trained intellect, his literary culture, his artistic temperament, and his great versatility would have insured his success in any field of intellectual effort. Among the distinguished statesmen, scholars, and lawyers who constitute the ofiicial life of England Mr. Phelps was an acknowledged peer. And at a banquet given by them in his honor, in 1889, at the close of his official service, he bade farewell to his friends and to England in a short, wholly" impromptu speech of matchless grace and elegance. Lord Rosebery wrote the same evening to the gracious ladjwho for more than half a century shared the life of the guest of the occasion, and who still survives him, as follows :

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"I cannot go to bed without sending you a line of congratulation on ywir great triumph of to-night. The assembly was unique in its character and its warmth ; and what it gave in enthusiasm, Mr. Phelps restored in a speech so exquisite, that, on an occasion which seemed beyond the reach of eloquence to improve, it crowned the sensations of the audience. The only thing wanting was j'our presence."

The unfeigned regret of his English friends at his departure was mingled with expressions of sincere personal regard and respectful admiration for the man who had so ably and tactfully- discharged the delicate and difficult functions of representative of this great government at the Court of St. James.

While Mr. Phelps's surviving friends are justly proud of his splendid record, yet not for that alone or chiefly will those who knew him best cherish his memory, but more and rather for what he was to them in his charming personalit}-.

He has gone. "His works do follow him." In his few (alas! too few) public addresses, thrown off at intervals in a busy professional life, he has left an enduring memorial of his mental powers and accomplishments. Valuable as they are, both in style and substance, they rather suggest the idea of how much more he might have done in the same line had he given his rare powers e.Kclusively to the work of a litter alert r and publicist. Few men possess such a range of diversified gifts. Fewer still attain success in so many diverse fields of mental effort. From the beginning to the end of his long career his intellectual growth was continuous. He never sought office nor honors.

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When from time to time they came to him unsoHcited, he took up the burden of attendant responsibihty with an easy confidence in himself quite remote from any feehng of overweening vanity'. He rose to the demand of each occasion as it came, with serene assurance of a success which never failed.

His work as a lawyer, teacher, publicist, litterateur has passed into history, the common legacy of the race. The memorj^ of his rare personality, his delightful, genial companionship, his loyal friendship, abides and will remain the cherished inheritance of those who best Iviiew Edward J. Phelps, and could call him by the sacred name of friend.

John W. Stewart.

I

ORATION

DELIVERED AT BENNINGTON, VERMONT, AUGUST I9, 189I AT THE DEDICATION OF THE

BENNINGTON BATTLE MONUMENT

Vermont consecrates to-day her first liistoric monument. But not hers alone. New Hampshire and Massachusetts, who fought with her and for her at Bennington, have joined in erecting this memorial of their common history. And they are here, by a splendid representation, to share in the triumph of its completion, and to give to the occasion, by the distinction of their presence, a higher dignity, a more generous grace.

The day has a still larger significance. It is trebly fortunate. It marks not only the anniversary of the battle, and the hajipy consummation in this structure of the exertions of fifteen years, but likewise the centennial of the entrance of Vermont into the Federal Union. It unites in its suggestions the great memories and the great hope in the life of our commonwealth, the expiring century and the limitless fviture. It is fit that we should signalize such an occasion. Well may Vermont throw open this day her gates and her heart. Well may she call her children home. And with a display uncommon to her simple life, with trumpets, and banners, and acclamations, and the triumphant voice of cannon, offer imbounded welcome to the great concourse that has gathered to her festival.

It is appropriate and gralif5nng that the chief magistrate of the nation should be at such a time our most honored guest. In this scene, party differences are forgotten. We are only Americans. And in loj'alty to that great office, and respect for the incumbent who fills it so well, we are all tliis day on the President's side.

History is full of battles. All its pages are stained with blood. Instruments, for the most part, of ambition, of tyranny, and of crime. It would have been well for the world to be spared the misery the}' wrought. It woidd be well for its histor}' if their memorjr could perish. But there have been battles nevertheless whose smoke went up like incense; consecrated in the sight of Heaven by the cause they maintained. Such was that for which this shaft shall henceforth stand.

If battles were to be accounted great in proportion to the nimibers engaged, Bennington would be but small. In comparison with Marathon, and Waterloo, and Gettysburg, it was in that view only an affair of outposts. But it is not numbers alone that give importance to battle-fields. The fame of Thermopylae would not have survived had the Greeks been a great armj^ instead of three hvmdred. It is the cause that is fought for, the heroism and self-sacrifice displayed, and the consequences which follow, moral and political as well as military, that give significance to conflicts of arms. Judged by these standards, Bennington ma}^ well be reckoned among the memorable battles of the world.

It was, on our side, the people's fight. No government directed or supplied it ; no regular force was conceined ; it was a part of no organized campaign. New Hampsliire sent her hastily embodied militia, not the less vokmteers. In Vermont and Massachusetts it was the spontaneous uprising of a rural and peaceloving population, to resist invasion, to defend their homes, to vindicate their right of self-government. Lexington and Bunker Hill were in tliis respect its onlyparallels in the Revolutionary war.

The march of Burgoyne from Canada to the Hudson had been till then a continuous victory. He was a brave and skilful soldier, leading a well-appointed and powerful army. Ticonderoga, the key and stronghold of the northern frontier, had fallen unexpectedly without a blow. The Vermonters retreating thence had been overtaken and utterly defeated at Hubbardton. The advance of the British to Stillwater had been almost unopposed ; and there was as yet no promise of effectual resistance. Even Washington, steel-proof against despair, wrote that he saw not how Burgoyne's march to Albany could be checked.

The situation of the inhabitants of the Hampshire Grants was most critical. Their whole frontier was open to the incursions of an enemy whose allies were savages. They had been totally neglected by Congress ; not a step had been taken for their relief. Scattered sparsely through the country upon their farms, without any organized State government, almost destitute of the material of war, except the firearms in their houses, they still had no thought of flight or submission. They called upon God first, in a day of fasting and prayer, appointed by their Convention, and not only appointed but solemnly kept. And then they called upon New Hampshire and John Stark. New Hampshire, ablaze with patriotic feeling, issued instant orders for her mihtia to march. Stark's reply was brief, for he was not a man of words. "I am on the way," said he, "with all the men I can muster." With the eye of a born soldier, he saw that the Vermonters were right when the}' declared, that there could be no frontier but a frontier of armed men. That the Hampshire Grants must be held, because no enemy could be resisted to whom the gates of the country were thus thrown open. And that the effectual blow against Burgoyne must be struck on his flank.

Full justice has been done, in history- and tradition, to the bravery and the patriotism of John Stark. But his great qualities as a general have not been set forth as they deserve. No better piece of military work was seen in the Revolution than he did in that brief and sudden campaign. He concentrated the scattered militia at Charleston with a rapidity that was marvellous. He was impeded by the want of the most necessary and ordinary supplies. Detained, he wrote for lack of bullet moulds; "but one pair in town;" for they had their own bullets to cast; destitute, he wrote again, even of camp kettles; striving in vain to get three or four field -pieces mounted; the powder he had depended upon half spoiled. Yet, receiving his orders on the 22d of Juh', while the militia were all at their homes, he marched with the last of them from Charleston, on the 3d of August. On the 7th he was at Manchester, through the wilderness and across the Green Mountains, by incapable roads, and without any adequate transportation. On the 9th he was at Bennington, with his own forces and the Massachusetts and Vennont men organized and in hand.

S

On the 13th he engaged the enem^-; on the i6th the battle was fought. If there had been no battle at all, such celerity and jirecision of movement, with an irregular force, in the face of such difficulties, would alone have been generalship of the highest order.

At Manchester he was met by a peremptory order from Congress to march at once to join Schu^-ler, leaving the Grants to their fate. He refused to obey it. The cause was more to him than Congress, and he understood its necessities better than they did. On the 19th, three days after the battle, but before the news of it had reached them, that body adopted a resolution that his conduct was prejudicial to discipline, and injurious to the common cause, and demanding of New Hampshire to revoke the orders under which he was acting. Three days later, thev sent him a vote of thanks, their only contribution to the victory that caused the destruction of Burgoyne.

Meanwhile the men of the Grants had not been idle. Every nerve had been strained in their own behalf. The Council of Safety, improvised for the occasion, .sat continuously at Bennington, assuming all the powers of government. Every available man turned out. No woman bid husband, son, or brother stay. Such scanty supplies as by the utmost exertion could be collected, were thrown into the common stock. The very daj' before the battle, expresses were sent out through the farm-houses to gather lead, " urgently needed," said the Council. The woods were on fire. Not with the transient blaze that sweeps through the dry leaves and is gone, but with the deep, unquenchable combustion that burns in the roots and the earth.

Of the stores that had been previously gathered at

Bennington, much has been said, and but Httle is known. Their importance has probably been exaggerated. That Burgoj-ne needed them, such as they were, and desired still more to deprive his enemy of them, may be true. But they were bj^ no means the principal object of the expedition he sent out, altogether disproportioned to so small a matter. He saw as clearly as Stark did that his left was the dangerous quarter. It was not the feeble resistance before him that he was afraid of, which had not j-et fired an effectual shot. It was what he well called " the gathering storm that was hanging on his left. " He perceived that he must strike a blow in that quarter which v\ould put down opposition, and make safe his flank and his rear. He meant to mount his dismounted dragoons on horses obtained in the Grants, and to occupy and secure that ground. The troops he sent out were therefore choice and well commanded, and followed b}' a strong support. And their orders were, not merely to capture Bennington, but to cross the countrj' to Rockingham, and thence march to Albany.

The British commander proceeded with the caution the importance of his expedition demanded. When he found that he must fight, and perceived the resolute and thorough soldiership of Stark's movements, he chose a position with excellent judgment, intrenched himself strongly, and placed his troops and his guns to the best advantage. Stark could not wait, as he would have done, for his enemy's advance. He was unable to subsist his ill-provided forces long, nor could he keep them from homes that were suffering for their presence. His only chance was to attack at once, and his dispositions for it, most abh' seconded by

Warner, his right-hand man, were masterly beyond criticism. He had no artillery, no cavalry, no transportation, no commissariat but the ^vomen on the farms. Half of his troops were without bayonets, and even ammimition had to be husbanded. He lacked everything but men, and his men lacked everything but hardihood and indomitable resolution. Upon all known rules and experience of warfare, the successful storming, by a hastily organized militia, of an intrenched position at the top of a hill, held by an adequate regular force, would have been declared impossible. But it was the impossible that happened, in a rout of the veterans that amounted to destruction. History and literature, eloquence and poetry have combined to enshrine in the memory of mankind those decisive charges, at critical moments, by which great battles have been won and epochs in the life of nations determined. I set against the splendor of them all that final onset up yonder hill and over its breastworks of those New England farmers, on whose faces desperation had kindled the supernatural light of battle which never shines in vain. That field was the last hope of the Hampshire Grants. They were fighting for all they had on earth, whether of possessions or of rights. They could not go home defeated, for they would have had no homes to go to. The desolate land that Burgoyne would have left New York would have taken. Not a man was there by compulsion, or upon the slightest expectation of personal advantage or reward. The spirit which made the day possible was shown in that Stephen Fay, of Bennington, who had five sons in the fight. When the first-born was brought home to him dead,

II

"I thank God," he said, "that I had a son wiHing to give his hfe for his country."

Such, in merest and briefest outhne, was Bennington. Its stor3', imperfectly preserved, comes down to us only in flashes, but they are flashes of glorious light. Its consequences were immediate and far-reaching. It was the first success of the Revolution which bore an}' fruit. Its guns sounded the first notes in the knell which announced that the power of Great Britain over the colonies she had created and had .sacrificed was passing away. Burgoyne heard it, and knew what it meant. Washington heard it, and, hearing, took heart again. Confidence replaced despair. Gates succeeded Schuyler in command at Saratoga, and the militia jioured into his camp. The invincibilitj' of the British commander was gone. He fought desperately, but in vain. On the 17th of October he surrendered.

If Bennington had not been fought, or had been fought without success, the junction between Clinton and Burgoyne could not have been prevented, and his surrender would not have taken place. "If I had succeeded there," he wrote to his government, "I should have marched to Albany."

But Bennington was only an episode in the early life of Vermont. Striking, heroic, conspicuous, yet still but an epi-sode. The outbreak of the Revolution found the people of the Hampshire Grants already engaged in a contest with the powerful Colony of New York, which had for ten years taxed their utmost resources. The first to occupy the unbroken wilderness which is now Vermont, they had taken and paid for their titles to the lands, as a part of the Colony of New Hampshire, under regular grants from its governor as vicegerent of the British Crown. They had organized townships, built roads, cleared forests, and established their homes. Up to that time the territory had been universally regarded as a part of New Hampshire, and the early maps so laid it down. New York, for more than a hundred years from the date of her charter, had attempted no jurisdiction over it. But after the New Hampshire grants had been made and occupied, New York set up the claim that her eastern boundar}?^ was the Connecticut River. The line between that province and New Hampshire was so loosely defined in the charters, issued when the geography of the country was almost imknown, that it was impossible to be determined by their language. The charters were, in fact, conflicting. The greater influence of New York, and her better means of prosecuting her case before the Privy Council, obtained from the Crown, in 1764, an order establishing the Connecticut as the dividing line. But tliis was only the arbitrary adjustment of a boundary, incapable of other settlement. Its legal effect was prospective, not retroactive. It established jurisdiction, it did not invalidate titles previousl}'^ vested, under which a prior and adverse possession existed, and which had been derived from the common source of title, the King, of whom the contesting governors were alike the agents, and while the territory was de facto a part of New Hampshire. Nor was it the intention of the Crown or of the Privy Coiuicil that it should have such an effect. When in 1767, three years later, the settlers, resisting the efforts of New York to confiscate their lands, succeeded by great exertions in bringing the case again before that body, upon its unanimous and emphatic judgment, further grants by New York of lands granted by New Hampshire prior to 1764 were positively prohibited b}^ the King.

Notwithstanding this explicit order, the Colonial government of New York continued to make grants, in large quantities, of lands occupied adverse^ under the New Hampshire titles, without the least regard to the rights of the inhabitants, or the distressing consequences in which they would be involved. These grants were made not to settlers, but to speculators and political favorites, upon payment of enormous fees to the governor. Not even compensation was offered for the improvements which had given the lands all the value they had, re.scued them from the savage and the wild beast, and made them habitable bj' man. No greater outrage had been attempted under the forms of English law since the days of Jeffrey's. It would not onty have been in violation of fundamental principles if it had been done bj^ the Crown, but it was in direct contravention of the orders of the Crown, based upon the judgment of the Privj^ Council.

The occupants of the Hampshire Grants had no means of legal resistance. They were without money, withovit counsel, without influence. They made one effort at defence in a suit tried at Alban}', but soon found they had no justice to expect in that quarter. Then they set the authority of New York at defiance, and resolved to protect themselves. Sheriffs who came into the Grants to execute writs were turned back. Militia sent to support them were repulsed. Rights which the law should have defended were maintained by force.

But with the first guns of the Revolution, the people of the Grants threw themselves into that struggle, without regard to its effect upon the contest, to them much more important, in which they were already engaged. Ticonderoga was taken bj^ Ethan Allen, and Crown Point by Warner. They marched in force upon the disastrous expedition against Canada, where Allen was left a prisoner. They turned out on the approach of Burgoyne to garrison Ticonderoga, in such strength that men enough were not left at home to transport the supplies, which, out of their slender resources, they poured into that fortress. They were with Arnold in his desperate battles on Lake Champlain. They fought under Warner at Hubbardton, before Bennington, and with Gates at Bemis Heights and Saratoga afterwards. They pursued the British who retreated from Ticonderoga after Burgoyne's surrender, capturing the last prisoners, and firing the last shots at the remains of that expedition.