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The Great Speeches and Orations of Daniel Webster by Daniel Webster

Part 19 out of 25

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court was opened.

Mr. Binney observed to the court, that he had omitted to notice, in
his argument, that, in regard to the statutes of Uniformity and
Toleration in England, whilst the Jewish Talmuds for the
propagation of Judaism alone were not sustained by those statutes,
yet the Jewish Talmuds for the maintenance of the poor were
sustained thereby. And the decisions show that, where a gift had
for its object the maintenance and education of poor Jewish
children, the statutes sustained the devise. In proof of this he
quoted 1 Ambler, by Blunt, p. 228, case of De Costa, &c. Also, the
case of Jacobs v. Gomperte, in the notes. Also, in the notes, 2
Swanston, p. 487, same case of De Costa, &c. Also, 7 Vesey, p. 423,
case of Mo Catto v. Lucardo. Also, Sheppard, p. 107, and Boyle, p.
43.

Another case was that of a bequest given to an object abroad, and
in the decision the Master of the Rolls considered that religious
instruction was not a necessary part of education. See, also, the
case of The Attorney-General v. The Dean and Canons of Christ
Church, Jacobs, p. 485.

Mr. Binney then quoted from Noah Webster the definition of the word
"tenets," to show that Mr. Webster did not give the right
definition when he said that "tenets" meant "religion."

Mr. Webster then rose and
said:--#/

The arguments of my learned friend, may it please your honors, in
relation to the Jewish laws as tolerated by the statutes, go to maintain
my very proposition; that is, that no school for the instruction of
youth in any system which is in any way derogatory to the Christian
religion, or for the teaching of doctrines that are in any way contrary
to the Christian religion, is, or ever was, regarded as a charity by the
courts. It is true that the statutes of Toleration regarded a devise for
the maintenance of poor Jewish children, to give them food and raiment
and lodging, as a charity. But a devise for the teaching of the Jewish
religion to poor children, that should come into the Court of Chancery,
would not be regarded as a charity, or entitled to any peculiar
privileges from the court.

When I stated to your honors, in the course of my argument on Saturday,
that all denominations of Christians had some mode or provision for the
appointment of teachers of Christianity amongst them, I meant to have
said something about the Quakers. Although we know that the teachers
among them come into their office in a somewhat peculiar manner, yet
there are preachers and teachers of Christianity provided in that
peculiar body, notwithstanding its objection to the mode of appointing
teachers and preachers by other Christian sects. The place or character
of a Quaker preacher is an office and appointment as well known as that
of a preacher among any other denomination of Christians.

I have heretofore argued to show that the Christian religion, its
general principles, must ever be regarded among us as the foundation of
civil society; and I have thus far confined my remarks to the tendency
and effect of the scheme of Mr. Girard (if carried out) upon the
Christian religion. But I will go farther, and say that this school,
this scheme or system, in its tendencies and effects, is opposed to all
religions, of every kind. I will not now enter into a controversy with
my learned friend about the word "tenets," whether it signify opinions
or dogmas, or whatever you please. Religious tenets, I take it, and I
suppose it will be generally conceded, mean religious opinions; and if a
youth has arrived at the age of eighteen, and has no religious tenets,
it is very plain that he has no religion. I do not care whether you call
them dogmas, tenets, or opinions. If the youth does not entertain
dogmas, tenets, or opinions, or opinions, tenets, or dogmas, on
religious subjects, then he has no religion at all. And this strikes at
a broader principle than when you merely look at this school in its
effect upon Christianity alone. We will suppose the case of a youth of
eighteen, who has just left this school, and has gone through an
education of philosophical morality, precisely in accordance with the
views and expressed wishes of the donor. He comes then into the world to
choose his religious tenets. The very next day, perhaps, after leaving
school, he comes into a court of law to give testimony as a witness.
Sir, I protest that by such a system he would be disfranchised. He is
asked, "What is your religion?" His reply is, "O, I have not yet chosen
any; I am going to look round, and see which suits me best." He is
asked, "Are you a Christian?" He replies, "That involves religious
tenets, and as yet I have not been allowed to entertain any." Again, "Do
you believe in a future state of rewards and punishments?" And he
answers, "That involves sectarian controversies, which have carefully
been kept from me." "Do you believe in the existence of a God?" He
answers, that there are clashing doctrines involved in these things,
which he has been taught to have nothing to do with; that the belief in
the existence of a God, being one of the first questions in religion, he
is shortly about to think of that proposition. Why, Sir, it is vain to
talk about the destructive tendency of such a system; to argue upon it
is to insult the understanding of every man; _it is mere, sheer, low,
ribald, vulgar deism and infidelity_![2] It opposes all that is in
heaven, and all on earth that is worth being on earth. It destroys the
connecting link between the creature and the Creator; it opposes that
great system of universal benevolence and goodness that binds man to his
Maker. _No religion till he is eighteen!_ What would be the condition of
all our families, of all our children, if religious fathers and
religious mothers were to teach their sons and daughters no religious
tenets till they were eighteen? What would become of their morals, their
character, their purity of heart and life, their hope for time and
eternity? What would become of all those thousand ties of sweetness,
benevolence, love, and Christian feeling, that now render our young men
and young maidens like comely plants growing up by a streamlet's
side,--the graces and the grace of opening manhood, of blossoming
womanhood? What would become of all that now renders the social circle
lovely and beloved? What would become of society itself? How could it
exist? And is that to be considered a charity which strikes at the root
of all this; which subverts all the excellence and the charms of social
life; which tends to destroy the very foundation and frame-work of
society, both in its practices and in its opinions; which subverts the
whole decency, the whole morality, as well as the whole Christianity
and government, of society? No, Sir! no, Sir!

And here let me turn to the consideration of the question, What is an
oath? I do not mean in the variety of definitions that may be given to
it as it existed and was practised in the time of the Romans, but an
oath as it exists at present in our courts of law; as it is founded on a
degree of consciousness that there is a Power above us that will reward
our virtues and punish our vices. We all know that the doctrine of the
English law is, that in the case of every person who enters court as a
witness, be he Christian or Hindoo, there must be a firm conviction on
his mind that falsehood or perjury will be punished, either in this
world or the next, or he cannot be admitted as a witness. If he has not
this belief, he is disfranchised. In proof of this, I refer your honors
to the great case of Ormichund against Barker, in Lord Chief Justice
Willes's report. There this doctrine is clearly laid down. But in no
case is a man allowed to be a witness that has no belief in future
rewards and punishments for virtues or vices, nor ought he to be. We
hold life, liberty, and property in this country upon a system of oaths;
oaths founded on a religious belief of some sort. And that system which
would strike away the great substratum, destroy the safe possession of
life, liberty, and property, destroy all the institutions of civil
society, cannot and will not be considered as entitled to the protection
of a court of equity. It has been said, on the other side, that there
was no teaching _against_ religion or Christianity in this system. I
deny it. The whole testament is one bold proclamation against
Christianity and religion of every creed. The children are to be brought
up in the principles declared in that testament. They are to learn to be
suspicious of Christianity and religion; to keep clear of it, that their
youthful heart may not become susceptible of the influences of
Christianity or religion in the slightest degree. They are to be told
and taught that religion is not a matter for the heart or conscience,
but for the decision of the cool judgment of mature years; that at that
period when the whole Christian world deem it most desirable to instil
the chastening influences of Christianity into the tender and
comparatively pure mind and heart of the child, ere the cares and
corruptions of the world have reached and seared it,--at that period the
child in this college is to be carefully excluded therefrom, and to be
told that its influence is pernicious and dangerous in the extreme. Why,
the whole system is a constant preaching against Christianity and
against religion, and I insist that there is no charity, and can be no
charity, in that system of instruction from which Christianity is
excluded. I perfectly agree with what my learned friend says in regard
to the monasteries of the Old World, as seats of learning to which we
are all indebted at the present day. Much of our learning, almost all of
our early histories, and a vast amount of literary treasure, were
preserved therein and emanated therefrom. But we all know, that although
these were emphatically receptacles for literature of the highest order,
yet they were always connected with Christianity, and were always
regarded and conducted as religious establishments.

Going back as far as the statutes of Henry the Fourth, as early as
1402,[3] in the act respecting charities, we find that one hundred years
before the Reformation, in Catholic times, in the establishment of every
charitable institution, there was to be proper provision for religious
instruction. Again, after the time of the Reformation, when those
monastic institutions were abolished, in the 1st Edw. VI. ch. 14, we
find certain _chantries_ abolished, and their funds appropriated to the
instruction of youth in the grammar schools founded in that reign, which
Lord Eldon says extended all over the kingdom. In all these we find
provision for religious instruction, the dispensation of the same being
by a teacher or preacher. In 2 Swanston, p. 529, the case of the Bedford
Charity, Lord Eldon gives a long opinion, in the course of which he
says, that in these schools care is taken to educate youth in the
Christian religion, and in all of them the New Testament is taught, both
in Latin and Greek. Here, then, we find that the great and leading
provision, both before and after the Reformation, was to connect the
knowledge of Christianity with human letters. And it will be always
found that a school for instruction of youth, to possess the privileges
of a charity, must be provided with religious instruction.

For the decision, that the essentials of Christianity are part of the
common law of the land, I refer your honors to 1 Vernon, p. 293, where
Lord Hale, who cannot be suspected of any bigotry on this subject, says,
that to decry religion, and call it a cheat, tends to destroy all
religion; and he also declares Christianity to be part of the common law
of the land. Mr. N. Dane, in his Abridgment, ch. 219, recognizes the
same principle. In 2 Strange, p. 834, case of The King v. Wilson, the
judges would not suffer it to be debated that writing against religion
generally is an offence at common law. They laid stress upon the word
"generally," because there might arise differences of opinion between
religious writers on points of doctrine, and so forth. So in Taylor's
case, 3 Merivale, p. 405, by the High Court of Chancery, these doctrines
were recognized and maintained. The same doctrine is laid down in 2
Burn's Ecclesiastical Law, p. 95, Evans v. The Chamberlain of London;
and in 2 Russell, p. 501, The Attorney-General v. The Earl of Mansfield.

There is a case of recent date, which, if the English law is to prevail,
would seem conclusive as to the character of this devise. It is the case
of The Attorney-General v. Cullum, 1 Younge and Collyer's Reports, p.
411. The case was heard and decided in 1842, by Sir Knight Bruce,
Vice-Chancellor. The reporter's abstract, or summary, of the decision is
this: "COURTS OF EQUITY, IN THIS COUNTRY, WILL NOT SANCTION ANY SYSTEM
OF EDUCATION IN WHICH RELIGION IS NOT INCLUDED."

The charity in question in that case was established in the reign of
Edward the Fourth, for the benefit of the community and poor inhabitants
of the town of Bury St. Edmunds. The objects of the charity were
various: for relief of prisoners, educating and instructing poor people,
for food and raiment for the aged and impotent, and others of the same
kind. There were uses, also, now deemed superstitious, such as praying
for the souls of the dead. In this, and in other respects, the charity
required revision, to suit it to the habits and requirements of modern
times; and a scheme was accordingly set forth for such revision by the
master, under the direction of the court. By this scheme there were to
be schools, and these schools were to be closed on Sundays, although the
Scriptures were to be read daily on other days. This was objected to,
and it was insisted, on the other hand, that the masters and mistresses
of the schools should be members of the Church of England; that they
should, on every Lord's day, give instruction in the doctrines of the
Church to those children whose parents might so desire; but that all the
scholars should be required to attend public worship every Lord's day in
the parish church, _or other place of worship, according to their
respective creeds_.

The Vice-Chancellor said, that the term "education" was properly
understood, by all the parties, to comprehend religious instruction;
that the objection to the scheme proposed by the master was not that it
did not provide for religious instruction according to the doctrines of
the Church of England, but that it did not provide for religious
instruction at all. In the course of the hearing, the Vice-Chancellor
said, that any scheme of education, without religion, would be worse
than a mockery. The parties afterwards agreed, that the masters and
mistresses should be members of the Church of England; that every school
day the master should give religious instruction, during one hour, to
all the scholars, _such religious instruction to be confined to the
reading and explanation of the Scriptures_; that on every Lord's day he
should give instruction in the liturgy, catechism, and articles of the
Church of England, and that the scholars should attend church every
Lord's day, _unless they were children of persons not in communion with
the Church of England_. In giving the sanction of the court to this
arrangement, the Vice-Chancellor said, that he wished to have it
distinctly understood that the ground on which he had proceeded was not
a preference of one form of religion to another, but the necessity, if
the matter was left to him judicially, to adopt the course of requiring
the teachers to be members of the Church of England.

This case clearly shows, that, at the present day, a school, founded by
a charity, for the instruction of children, cannot be sanctioned by the
courts as a charity, unless the scheme of education includes religious
instruction. It shows, too, that this general requisition of the law is
independent of a church establishment, and that it is not religion in
any particular form, but religion, religious and Christian instruction
in some form, which is held to be indispensable. It cannot be doubted
how a charity for the instruction of children would fare in an English
court, the scheme of which should carefully and sedulously exclude all
religious or Christian instruction, and profess to establish morals on
principles no higher than those of enlightened Paganism.

Enough, then, your honors, has been said on this point; and I am willing
that inquiry should be prosecuted to any extent of research to
controvert this position, that a school of education for the young,
which rejects the Christian religion, cannot be sustained as a charity,
so as to entitle it to come before the courts of equity for the
privileges which they have power to confer on charitable bequests.

Mr. Webster then replied to the remarks of Mr. Binney, in relation
to the Liverpool Blue Coat School, and read from the report of Mr.
Bache on education in Europe, Mr. Bache having been sent abroad by
the city of Philadelphia to investigate this whole matter of
education.

If Mr. Girard had established such a school as that, it would have been
free from all those objections that have been raised against it. This
Liverpool Blue Coat School, though too much of a religious party
character, is strictly a church establishment. It is a school
established on a peculiar foundation, that of the Madras system of Dr.
Bell. It is a monitorial school; those who are advanced in learning are
to teach the others in religion, as well as secular knowledge. It is
strictly a religious school, and the only objection is, that in its
instruction it is too much confined to a particular sect.

Mr. Binney observed that there was no provision made for clergymen.

That is true, because the scheme of the school is monitorial, in which
the more advanced scholars instruct the others. But religious
instruction is amply and particularly provided for.

Mr. Webster then referred to Shelford, p. 105, and onward, under
the head "Jews," in the fourth paragraph, where, he stated, the
whole matter, and all the cases, as regarded the condition and
position of the Jews respecting various charities, were given in
full.

He then referred to the Smithsonian legacy, which had been
mentioned, and which he said was no charity at all, nor any thing
like a charity. It was a gift to Congress, to be disposed of as
Congress saw fit, for scientific purposes.

He then replied, in a few words, to the arguments of Mr. Binney in
relation to the University of Virginia; and said that, although
there was no provision for religious instruction in that
University, yet he supposed it would not be contended for a moment
that the University of Virginia was a charity, or that it came
before the courts claiming of the law of that State protection as
such. It stood on its charter.

I repeat again, before closing this part of my argument, the
proposition, important as I believe it to be, for your honors'
consideration, that the proposed school, in its true character, objects,
and tendencies, is derogatory to Christianity and religion. If it be so,
then I maintain that it cannot be considered a charity, and as such
entitled to the just protection and support of a court of equity. I
consider this the great question for the consideration of this court. I
may be excused for pressing it on the attention of your honors. It is
one which, in its decision, is to influence the happiness, the temporal
and the eternal welfare, of one hundred millions of human beings, alive
and to be born, in this land. Its decision will give a hue to the
apparent character of our institutions; it will be a comment on their
spirit to the whole Christian world. I again press the question to your
honors: _Is a clear, plain, positive system for the instruction of
children, founded on clear and plain objects of infidelity, a charity in
the eye of the law, and as such entitled to the privileges awarded to
charities in a court of equity?_ And with this, I leave this part of the
case.

THIRD DAY.

I shall now, may it please your honors, proceed to inquire whether there
is, in the State of Pennsylvania, any settled public policy to which
this school, as planned by Mr. Girard in his will, is in opposition; for
it follows, that, if there be any settled public policy in the laws of
Pennsylvania on this subject, then any school, or scheme, or system,
which tends to subvert this public policy, cannot be entitled to the
protection of a court of equity. It will not be denied that there is a
general public policy in that, as in all States, drawn from its history
and its laws. And it will not be denied that any scheme or school of
education which directly opposes this is not to be favored by the
courts. Pennsylvania is a free and independent State. She has a popular
government, a system of trial by jury, of free suffrage, of vote by
ballot, of alienability of property. All these form part of the general
public policy of Pennsylvania. Any man who shall go into that State can
speak and write as much as he pleases against a popular form of
government, freedom of suffrage, trial by jury, and against any or all
of the institutions just named; he may decry civil liberty, and assert
the divine right of kings, and still he does nothing criminal; but if,
to give success to such efforts, special power from a court of justice
is required, it will not be granted to him. There is not one of these
features of the general public policy of Pennsylvania against which a
school might not be established and preachers and teachers employed to
teach. That might in a certain sense be considered a school of
education, but it would not be a charity. And if Mr. Girard, in his
lifetime, had founded schools and employed teachers to preach and teach
in favor of infidelity, or against popular government, free suffrage,
trial by jury, or the alienability of property, there was nothing to
stop him or prevent him from so doing. But where any one or all of these
come to be provided for a school or system as a charity, and come before
the courts for favor, then in neither one, nor all, nor any, can they be
favored, because they are opposed to the general public policy and
public law of the State.

These great principles have always been recognized; and they are no more
part and parcel of the public law of Pennsylvania than is the Christian
religion. We have in the charter of Pennsylvania, as prepared by its
great founder, William Penn,--we have in his "great law," as it was
called, the declaration, that the preservation of Christianity is one of
the great and leading ends of government. This is declared in the
charter of the State. Then the laws of Pennsylvania, the statutes
against blasphemy, the violation of the Lord's day, and others to the
same effect, proceed on this great, broad principle, that the
preservation of Christianity is one of the main ends of government. This
is the general public policy of Pennsylvania. On this head we have the
case of Updegraph v. The Commonwealth,[4] in which a decision in
accordance with this whole doctrine was given by the Supreme Court of
Pennsylvania. The solemn opinion pronounced by that tribunal begins by a
general declaration that Christianity is, and has always been, part of
the common law of Pennsylvania.

I have said, your honors, that our system of oaths in all our courts, by
which we hold liberty and property, and all our rights, is founded on or
rests on Christianity and a religious belief. In like manner the
affirmation of Quakers rests on religious scruples drawn from the same
source, the same feeling of religious responsibility.

The courts of Pennsylvania have themselves decided that a charitable
bequest, which counteracts the public policy of the State, cannot be
sustained. This was so ruled in the often cited case of the Methodist
Church v. Remington. There, the devise was to the Methodist Church
generally, extending through the States and into Canada, and the trust
was declared void on this account alone; namely, that it was
inconsistent with the public policy of the State, inconsistent with the
general spirit of the laws of Pennsylvania. But is there any comparison
to be made between that ground on which a devise to a church is declared
void, namely, as inconsistent with the public policy of the State, and
the case of a devise which undermines and opposes the whole Christian
religion, and derides all its ministers; the one tending to destroy all
religion, and the other being merely against the spirit of the
legislation and laws of the State, and the general public policy of
government, in a very subordinate matter? Can it be shown that this
devise of a piece of ground to the Methodist Church can be properly set
aside, and declared void on general grounds, and not be shown that such
a devise as that of Mr. Girard, which tends to overturn as well as
oppose the public policy and laws of Pennsylvania, can also be set
aside?

Sir, there are many other American cases which I could cite to the court
in support of this point of the case. I will now only refer to 8
Johnson, page 291.

It is the same in Pennsylvania as elsewhere, the general principles and
public policy are sometimes established by constitutional provisions,
sometimes by legislative enactments, sometimes by judicial decisions,
and sometimes by general consent. But however they may be established,
there is nothing that we look for with more certainty than this general
principle, that Christianity is part of the law of the land. This was
the case among the Puritans of New England, the Episcopalians of the
Southern States, the Pennsylvania Quakers, the Baptists, the mass of the
followers of Whitefield and Wesley, and the Presbyterians; all brought
and all adopted this great truth, and all have sustained it. And where
there is any religious sentiment amongst men at all, this sentiment
incorporates itself with the law. _Every thing declares it._ The massive
cathedral of the Catholic; the Episcopalian church, with its lofty spire
pointing heavenward; the plain temple of the Quaker; the log church of
the hardy pioneer of the wilderness; the mementos and memorials around
and about us; the consecrated graveyards, their tombstones and epitaphs,
their silent vaults, their mouldering contents; all attest it. _The dead
prove it as well as the living._ The generations that are gone before
speak to it, and pronounce it from the tomb. We feel it. All, all,
proclaim that Christianity, general, tolerant Christianity, Christianity
independent of sects and parties, that Christianity to which the sword
and the fagot are unknown, general, tolerant Christianity, is the law of
the land.

Mr. Webster, having gone over the other points in the case, which
were of a more technical character, in conclusion,
said:--#/

I now take leave of this cause. I look for no good whatever from the
establishment of this school, this college, this scheme, this experiment
of an education in "practical morality," unblessed by the influences of
religion. It sometimes happens to man to attain by accident that which
he could not achieve by long-continued exercise of industry and ability.
And it is said even of the man of genius, that by chance he will
sometimes "snatch a grace beyond the reach of art." And I believe that
men sometimes do mischief, not only beyond their intent, but beyond the
ordinary scope of their talents and ability. In my opinion, if Mr.
Girard had given years to the study of a mode by which he could dispose
of his vast fortune so that no good could arise to the general cause of
charity, no good to the general cause of learning, no good to human
society, and which should be most productive of protracted struggles,
troubles, and difficulties in the popular counsels of a great city, he
could not so effectually have attained that result as he has by this
devise now before the court. It is not the result of good fortunes, but
of bad fortunes, which have overriden and cast down whatever of good
might have been accomplished by a different disposition. I believe that
this plan, this scheme, was unblessed in all its purposes, and in all
its original plans. Unwise in all its frame and theory, while it lives
it will lead an annoyed and troubled life, and leave an unblessed memory
when it dies. If I could persuade myself that this court would come to
such a decision as, in my opinion, the public good and the law require,
and if I could believe that any humble efforts of my own had contributed
in the least to lead to such a result, I should deem it the crowning
mercy of my professional life.

[Footnote 1: Foster's Essay on the Evils of Popular Ignorance, Section
IV.]

[Footnote 2: The effect of this remark was almost electric, and some one
in the court-room broke out in applause.]

[Footnote 3: 2 Pickering, p. 433.]

[Footnote 4: 11 Sergeant & Rawle, p. 394.]

MR. JUSTICE STORY.[1]

[At a meeting of the Suffolk Bar, held in the Circuit Court Room,
Boston, on the morning of the 12th of September, the day of the funeral
of Mr. Justice Story, Chief Justice Shaw having taken the chair and
announced the object of the meeting, Mr. Webster rose and spoke
substantially as follows.]

Your solemn announcement, Mr. Chief Justice, has confirmed the sad
intelligence which had already reached us, through the public channels
of information, and deeply afflicted us all.

JOSEPH STORY, one of the Associate Justices of the Supreme Court of the
United States, and for many years the presiding judge of this Circuit,
died on Wednesday evening last, at his house in Cambridge, wanting only
a few days for the completion of the sixty-sixth year of his age.

This most mournful and lamentable event has called together the whole
Bar of Suffolk, and all connected with the courts of law or the
profession. It has brought you, Mr. Chief Justice, and your associates
of the Bench of the Supreme Court of Massachusetts, into the midst of
us; and you have done us the honor, out of respect to the occasion, to
consent to preside over us, while we deliberate on what is due, as well
to our own afflicted and smitten feelings, as to the exalted character
and eminent distinction of the deceased judge. The occasion has drawn
from his retirement, also, that venerable man, whom we all so much
respect and honor, (Judge Davis,) who was, for thirty years, the
associate of the deceased upon the same Bench. It has called hither
another judicial personage, now in retirement, (Judge Putnam,) but long
an ornament of that Bench of which you are now the head, and whose
marked good fortune it is to have been the professional teacher of Mr.
Justice Story, and the director of his early studies. He also is present
to whom this blow comes near; I mean, the learned judge (Judge Sprague)
from whose side it has struck away a friend and a highly venerated
official associate. The members of the Law School at Cambridge, to which
the deceased was so much attached, and who returned that attachment with
all the ingenuousness and enthusiasm of educated and ardent youthful
minds, are here also, to manifest their sense of their own severe
deprivation, as well as their admiration of the bright and shining
professional example which they have so loved to contemplate,--an
example, let me say to them, and let me say to all, as a solace in the
midst of their sorrows, which death hath not touched and which time
cannot obscure.

Mr. Chief Justice, one sentiment pervades us all. It is that of the most
profound and penetrating grief, mixed, nevertheless, with an assured
conviction, that the great man whom we deplore is yet with us and in the
midst of us. He hath not wholly died. He lives in the affections of
friends and kindred, and in the high regard of the community. He lives
in our remembrance of his social virtues, his warm and steady
friendships, and the vivacity and richness of his conversation. He
lives, and will live still more permanently, by his words of written
wisdom, by the results of his vast researches and attainments, by his
imperishable legal judgments, and by those juridical disquisitions which
have stamped his name, all over the civilized world, with the character
of a commanding authority. "Vivit, enim, vivetque semper; atque etiam
latius in memoria hominum et sermone versabitur, postquam ab oculis
recessit."

Mr. Chief Justice, there are consolations which arise to mitigate our
loss, and shed the influence of resignation over unfeigned and
heart-felt sorrow. We are all penetrated with gratitude to God that the
deceased lived so long; that he did so much for himself, his friends,
the country, and the world; that his lamp went out, at last, without
unsteadiness or flickering. He continued to exercise every power of his
mind without dimness or obscuration, and every affection of his heart
with no abatement of energy or warmth, till death drew an impenetrable
veil between us and him. Indeed, he seems to us now, as in truth he is,
not extinguished or ceasing to be, but only withdrawn; as the clear sun
goes down at its setting, not darkened, but only no longer seen.

This calamity, Mr. Chief Justice, is not confined to the bar or the
courts of this Commonwealth. It will be felt by every bar throughout the
land, by every court, and indeed by every intelligent and well-informed
man in or out of the profession. It will be felt still more widely, for
his reputation had a still wider range. In the High Court of Parliament,
in every tribunal in Westminster Hall, in the judicatories of Paris and
Berlin, of Stockholm and St. Petersburg, in the learned universities of
Germany, Italy, and Spain, by every eminent jurist in the civilized
world, it will be acknowledged that a great luminary has fallen from the
firmament of public jurisprudence.

Sir, there is no purer pride of country than that in which we may
indulge when we see America paying back the great debt of civilization,
learning, and science to Europe. In this high return of light for light
and mind for mind, in this august reckoning and accounting between the
intellects of nations, Joseph Story was destined by Providence to act,
and did act, an important part. Acknowledging, as we all acknowledge,
our obligations to the original sources of English law, as well as of
civil liberty, we have seen in our generation copious and salutary
streams turning and running backward, replenishing their original
fountains, and giving a fresher and a brighter green to the fields of
English jurisprudence. By a sort of reversed hereditary transmission,
the mother, without envy or humiliation, acknowledges that she has
received a valuable and cherished inheritance from the daughter. The
profession in England admits with frankness and candor, and with no
feeling but that of respect and admiration, that he whose voice we have
so recently heard within these walls, but shall now hear no more, was,
of all men who have yet appeared, most fitted by the comprehensiveness
of his mind, and the vast extent and accuracy of his attainments, to
compare the codes of nations, to trace their differences to difference
of origin, climate, or religious or political institutions, and to
exhibit, nevertheless, their concurrence in those great principles upon
which the system of human civilization rests.

Justice, Sir, is the great interest of man on earth. It is the ligament
which holds civilized beings and civilized nations together. Wherever
her temple stands, and so long as it is duly honored, there is a
foundation for social security, general happiness, and the improvement
and progress of our race. And whoever labors on this edifice with
usefulness and distinction, whoever clears its foundations, strengthens
its pillars, adorns its entablatures, or contributes to raise its august
dome still higher in the skies, connects himself, in name, and fame, and
character, with that which is and must be as durable as the frame of
human society.

All know, Mr. Chief Justice, the pure love of country which animated the
deceased, and the zeal, as well as the talent, with which he explained
and defended her institutions. His work on the Constitution of the
United States is one of his most eminently successful labors. But all
his writings, and all his judgments, all his opinions, and the whole
influence of his character, public and private, leaned strongly and
always to the support of sound principles, to the restraint of illegal
power, and to the discouragement and rebuke of licentious and
disorganizing sentiments. "Ad rempublicam firmandam, et ad stabiliendas
vires, et sanandum populum, omnis ejus pergebat institutio."

But this is not the occasion, Sir, nor is it for me to consider and
discuss at length the character and merits of Mr. Justice Story, as a
writer or a judge. The performance of that duty, with which this Bar
will no doubt charge itself, must be deferred to another opportunity,
and will be committed to abler hands. But in the homage paid to his
memory, one part may come with peculiar propriety and emphasis from
ourselves. We have known him in private life. We have seen him descend
from the bench, and mingle in our friendly circles. We have known his
manner of life, from his youth up. We can bear witness to the strict
uprightness and purity of his character, his simplicity and
unostentatious habits, the ease and affability of his intercourse, his
remarkable vivacity amidst severe labors, the cheerful and animating
tones of his conversation, and his fast fidelity to friends. Some of us,
also, can testify to his large and liberal charities, not ostentatious
or casual, but systematic and silent,--dispensed almost without showing
the hand, and falling and distilling comfort and happiness, like the
dews of heaven. But we can testify, also, that in all his pursuits and
employments, in all his recreations, in all his commerce with the world,
and in his intercourse with the circle of his friends, the predominance
of his judicial character was manifest. He never forgot the ermine which
he wore. The judge, the judge, the useful and distinguished judge, was
the great picture which he kept constantly before his eyes, and to a
resemblance of which all his efforts, all his thoughts, all his life,
were devoted. We may go the world over, without finding a man who shall
present a more striking realization of the beautiful conception of
D'Aguesseau: "C'est en vain que l'on cherche a distinguer en lui la
personne privee et la personne publique; un meme esprit les anime, un
meme objet les reunit; l'homme, le pere de famille, le citoyen, tout est
en lui consacre a la gloire du magistrat."

Mr. Chief Justice, one may live as a conqueror, a king, or a magistrate;
but he must die as a man. The bed of death brings every human being to
his pure individuality; to the intense contemplation of that deepest and
most solemn of all relations, the relation between the creature and his
Creator. Here it is that fame and renown cannot assist us; that all
external things must fail to aid us; that even friends, affection, and
human love and devotedness, cannot succor us. This relation, the true
foundation of all duty, a relation perceived and felt by conscience and
confirmed by revelation, our illustrious friend, now deceased, always
acknowledged. He reverenced the Scriptures of truth, honored the pure
morality which they teach, and clung to the hopes of future life which
they impart. He beheld enough in nature, in himself, and in all that can
be known of things seen, to feel assured that there is a Supreme Power,
without whose providence not a sparrow falleth to the ground. To this
gracious being he trusted himself for time and for eternity; and the
last words of his lips ever heard by mortal ears were a fervent
supplication to his Maker to take him to himself.

[Footnote 1: The following letter of dedication to the mother of Judge
Story accompanied these remarks in the original edition:--

"_Boston, September 15, 1845._

"VENERABLE MADAM,--I pray you to allow me to present to you the brief
remarks which I made before the Suffolk Bar, on the 12th instant, at a
meeting occasioned by the sudden and afflicting death of your
distinguished son. I trust, dear Madam, that as you enjoyed through his
whole life constant proofs of his profound respect and ardent filial
affection, so you may yet live long to enjoy the remembrance of his
virtues and his exalted reputation.

"I am, with very great regard,

"Your obedient servant,

"DANIEL WEBSTER.

"TO MADAM STORY."]

THE RHODE ISLAND GOVERNMENT.

AN ARGUMENT MADE IN THE SUPREME COURT OF THE UNITED STATES, ON THE 27TH
OF JANUARY, 1848, IN THE DORR REBELLION CASES.

[The facts necessary to the understanding of these cases are
sufficiently set forth in the commencement of Mr. Webster's argument.
The event out of which the cases arose is known in popular language as
the _Dorr Rebellion_. The first case (that of Martin Luther against
Luther M. Borden and others) came up by writ of error from the Circuit
Court of Rhode Island, in which the jury, under the rulings of the court
(Mr. Justice Story), found a verdict for the defendants; the second case
(that of Rachel Luther against the same defendants) came up by a
certificate of a division of opinion. The allegations, evidence, and
arguments were the same in both cases.

The first case was argued by Mr. Hallet and Mr. Clifford
(Attorney-General) for the plaintiffs in error, and by Mr. Whipple and
Mr. Webster for the defendants in error. Mr. Justice Catron, Mr. Justice
Daniel, and Mr. Justice McKinley were absent from the court, in
consequence of ill health. Chief Justice Taney delivered the opinion of
the court, affirming the judgment of the court below in the first case,
and dismissing the second for want of jurisdiction. Mr. Justice Woodbury
dissented, and delivered a very elaborate opinion in support of his view
of the subject.]

There is something novel and extraordinary in the case now before the
court. All will admit that it is not such a one as is usually presented
for judicial consideration.

It is well known, that in the years 1841 and 1842 political agitation
existed in Rhode Island. Some of the citizens of that State undertook to
form a new constitution of government, beginning their proceedings
towards that end by meetings of the people, held without authority of
law, and conducting those proceedings through such forms as led them, in
1842, to say that they had established a new constitution and form of
government, and placed Mr. Thomas W. Dorr at its head. The previously
existing, and then existing, government of Rhode Island treated these
proceedings as nugatory, so far as they went to establish a new
constitution; and criminal, so far as they proposed to confer authority
upon any persons to interfere with the acts of the existing government,
or to exercise powers of legislation, or administration of the laws. All
will remember that the state of things approached, if not actual
conflict between men in arms, at least the "perilous edge of battle."
Arms were resorted to, force was used, and greater force threatened. In
June, 1842, this agitation subsided. The new government, as it called
itself, disappeared from the scene of action. The former government, the
Charter government, as it was sometimes styled, resumed undisputed
control, went on in its ordinary course, and the peace of the State was
restored.

But the past had been too serious to be forgotten. The legislature of
the State had, at an early stage of the troubles, found it necessary to
pass special laws for the punishment of the persons concerned in these
proceedings. It defined the crime of treason, as well as smaller
offences, and authorized the declaration of martial law. Governor King,
under this authority, proclaimed the existence of treason and rebellion
in the State, and declared the State under martial law. This having been
done, and the ephemeral government of Mr. Dorr having disappeared, the
grand juries of the State found indictments against several persons for
having disturbed the peace of the State, and one against Dorr himself
for treason. This indictment came on in the Supreme Court of Rhode
Island in 1844, before a tribunal admitted on all hands to be the legal
judicature of the State. He was tried by a jury of Rhode Island, above
all objection, and after all challenge. By that jury, under the
instructions of the court, he was convicted of treason, and sentenced to
imprisonment for life.

Now an action is brought in the courts of the United States, and before
your honors, by appeal, in which it is attempted to prove that the
characters of this drama have been oddly and wrongly cast; that there
has been a great mistake in the courts of Rhode Island. It is alleged,
that Mr. Dorr, instead of being a traitor or an insurrectionist, was the
real governor of the State at the time; that the force used by him was
exercised in defence of the constitution and laws, and not against them;
that he who opposed the constituted authorities was not Mr. Dorr, but
Governor King; and that it was _he_ who should have been indicted, and
tried, and sentenced. This is rather an important mistake, to be sure,
if it be a mistake. "Change places," cries poor Lear, "_change places_,
and _handy-dandy_, which is the justice and which the thief?" So our
learned opponents say, "Change places, and, _handy-dandy_, which is the
governor and which the rebel?" The aspect of the case is, as I have
said, novel. It may perhaps give vivacity and variety to judicial
investigations. It may relieve the drudgery of perusing briefs,
demurrers, and pleas in bar, bills in equity and answers, and introduce
topics which give sprightliness, freshness, and something of an uncommon
public interest to proceedings in courts of law.

However difficult it may be, and I suppose it to be _wholly_ impossible,
that this court should take judicial cognizance of the questions which
the plaintiff has presented to the court below, yet I do not think it a
matter of regret that the cause has come hither. It is said, and truly
said, that the case involves the consideration and discussion of what
are the true principles of government in our American system of public
liberty. This is very right. The case does involve these questions, and
harm can never come from their discussion, especially when such
discussion is addressed to reason and not to passion; when it is had
before magistrates and lawyers, and not before excited masses out of
doors. I agree entirely that the case does raise considerations,
somewhat extensive, of the true character of our American system of
popular liberty; and although I am constrained to differ from the
learned counsel who opened the cause for the plaintiff in error, on the
principles and character of that American liberty, and upon the true
characteristics of that American system on which changes of the
government and constitution, if they become necessary, are to be made,
yet I agree with him that this case does present them for consideration.

Now, there are certain principles of public liberty, which, though they
do not exist in all forms of government, exist, nevertheless, to some
extent, in different forms of government. The protection of life and
property, the _habeas corpus_, trial by jury, the right of open trial,
these are principles of public liberty existing in their best form in
the republican institutions of this country, but, to the extent
mentioned, existing also in the constitution of England. Our American
liberty, allow me to say, therefore, has an ancestry, a pedigree, a
history. Our ancestors brought to this continent all that was valuable,
in their judgment, in the political institutions of England, and left
behind them all that was without value, or that was objectionable.
During the colonial period they were closely connected of course with
the colonial system; but they were Englishmen, as well as colonists, and
took an interest in whatever concerned the mother country, especially in
all great questions of public liberty in that country. They accordingly
took a deep concern in the Revolution of 1688. The American colonists
had suffered from the tyranny of James the Second. Their charters had
been wrested from them by mockeries of law, and by the corruption of
judges in the city of London; and in no part of England was there more
gratification, or a more resolute feeling, when James abdicated and
William came over, than in the American colonies. All know that
Massachusetts immediately overthrew what had been done under the reign
of James, and took possession of the colonial fort in the harbor of
Boston in the name of the new king.

When the United States separated from England, by the Declaration of
1776, they departed from the political maxims and examples of the mother
country, and entered upon a course more exclusively American. From that
day down, our institutions and our history relate to ourselves. Through
the period of the Declaration of Independence, of the Confederation, of
the Convention, and the adoption of the Constitution, all our public
acts are records out of which a knowledge of our system of American
liberty is to be drawn.

From the Declaration of Independence, the governments of what had been
colonies before were adapted to their new condition. They no longer owed
allegiance to crowned heads. No tie bound them to England. The whole
system became entirely popular, and all legislative and constitutional
provisions had regard to this new, peculiar, American character, which
they had assumed. Where the form of government was already well enough,
they let it alone. Where reform was necessary, they reformed it. What
was valuable, they retained; what was essential, they added, and no
more. Through the whole proceeding, from 1776 to the latest period, the
whole course of American public acts, the whole progress of this
American system, was marked by a peculiar conservatism. The object was
to do what was necessary, and no more; and to do that with the utmost
temperance and prudence.

Now, without going into historical details at length, let me state what
I understand the American principles to be, on which this system rests.

First and chief, no man makes a question, that the people are the source
of all political power. Government is instituted for their good, and its
members are their agents and servants. He who would argue against this
must argue without an adversary. And who thinks there is any peculiar
merit in asserting a doctrine like this, in the midst of twenty millions
of people, when nineteen millions nine hundred and ninety-nine thousand
nine hundred and ninety-nine of them hold it, as well as himself? There
is no other doctrine of government here; and no man imputes to another,
and no man should claim for himself, any peculiar merit for asserting
what everybody knows to be true, and nobody denies. Why, where else can
we look but to the people for political power, in a popular government?
We have no hereditary executive, no hereditary branch of the
legislature, no inherited masses of property, no system of entails, no
long trusts, no long family settlements, no primogeniture. Every estate
in the country, from the richest to the poorest, is divided among sons
and daughters alike. Alienation is made as easy as possible; everywhere
the transmissibility of property is perfectly free. The whole system is
arranged so as to produce, as far as unequal industry and enterprise
render it possible, a universal equality among men; an equality of
rights absolutely, and an equality of condition, so far as the different
characters of individuals will allow such equality to be produced. He
who considers that there may be, is, or ever has been, since the
Declaration of Independence, any person who looks to any other source of
power in this country than the people, so as to give peculiar merit to
those who clamor loudest in its assertion, must be out of his mind, even
more than Don Quixote. His imagination was only perverted. He saw things
not as they were, though what he saw were things. He saw windmills, and
took them to be giants, knights on horseback. This was bad enough; but
whoever says, or speaks as if he thought, that anybody looks to any
other source of political power in this country than the people, must
have a stronger and wilder imagination, for he sees nothing but the
creations of his own fancy. He stares at phantoms.

Well, then, let all admit, what none deny, that the only source of
political power in this country is the people. Let us admit that they
are _sovereign_, for they are so; that is to say, the aggregate
community, the collected will of the people, is sovereign. I confess
that I think Chief Justice Jay spoke rather paradoxically than
philosophically, when he said that this country exhibited the
extraordinary spectacle of many sovereigns and no subjects. The people,
he said, are all sovereigns; and the peculiarity of the case is that
they have no subjects, except a few colored persons. This must be rather
fanciful. The aggregate community is sovereign, but that is not _the_
sovereignty which acts in the daily exercise of sovereign power. The
people cannot act daily as the people. They must establish a government,
and invest it with so much of the sovereign power as the case requires;
and this sovereign power being delegated and placed in the hands of the
government, that government becomes what is popularly called THE STATE.
I like the old-fashioned way of stating things as they are; and this is
the true idea of a state. It is an organized government, representing
the collected will of the people, as far as they see fit to invest that
government with power. And in that respect it is true, that, though
_this_ government possesses sovereign power, it does not possess _all_
sovereign power; and so the State governments, though sovereign in some
respects, are not so in all. Nor could it be shown that the powers of
both, as delegated, embrace the whole range of what might be called
sovereign power. We usually speak of the States as sovereign States. I
do not object to this. But the Constitution never so styles them, nor
does the Constitution speak of the government here as the _general_ or
the _federal_ government. It calls this government the United States;
and it calls the State governments State governments. Still the fact is
undeniably so; legislation is a sovereign power, and is exercised by the
United States government to a certain extent, and also by the States,
according to the forms which they themselves have established, and
subject to the provisions of the Constitution of the United States.

Well, then, having agreed that all power is originally from the people,
and that they can confer as much of it as they please, the next
principle is, that, as the exercise of legislative power and the other
powers of government immediately by the people themselves is
impracticable, they must be exercised by REPRESENTATIVES of the people;
and what distinguishes American governments as much as any thing else
from any governments of ancient or of modern times, is the marvellous
felicity of their representative system. It has with us, allow me to
say, a somewhat different origin from the representation of the commons
in England, though that has been worked up to some resemblance of our
own. The representative system in England had its origin, not in any
supposed rights of the people themselves, but in the necessities and
commands of the crown. At first, knights and burgesses were summoned,
often against their will, to a Parliament called by the king. Many
remonstrances were presented against sending up these representatives;
the charge of paying them was, not unfrequently, felt to be burdensome
by the people. But the king wished their counsel and advice, and perhaps
the presence of a popular body, to enable him to make greater headway
against the feudal barons in the aristocratic and hereditary branch of
the legislature. In process of time these knights and burgesses assumed
more and more a popular character, and became, by degrees, the guardians
of popular rights. The people through them obtained protection against
the encroachments of the crown and the aristocracy, till in our day they
are understood to be the representatives of the people, charged with the
protection of their rights. With us it was always just so.
Representation has always been of this character. The power is with the
people; but they cannot exercise it in masses or _per capita_; they can
only exercise it by their representatives. The whole system with us has
been popular from the beginning.

Now, the basis of this representation is suffrage. The right to choose
representatives is every man's part in the exercise of sovereign power;
to have a voice in it, if he has the proper qualifications, is the
portion of political power belonging to every elector. That is the
beginning. That is the mode in which power emanates from its source, and
gets into the hands of conventions, legislatures, courts of law, and the
chair of the executive. It begins in suffrage. Suffrage is the
delegation of the power of an individual to some agent.

This being so, then follow two other great principles of the American
system.

1. The first is, that the right of suffrage shall be guarded, protected,
and secured against force and against fraud; and,

2. The second is, that its exercise shall be prescribed by previous law;
its qualifications shall be prescribed by previous law; the time and
place of its exercise shall be prescribed by previous law; the manner of
its exercise, under whose supervision (always sworn officers of the
law), is to be prescribed. And then, again, the results are to be
certified to the central power by some certain rule, by some known
public officers, in some clear and definite form, to the end that two
things may be done: first, that every man entitled to vote may vote;
second, that his vote may be sent forward and counted, and so he may
exercise his part of sovereignty, in common with his fellow-citizens.

In the exercise of political power through representatives we know
nothing, we never have known any thing, but such an exercise as should
take place through the prescribed forms of law. When we depart from
that, we shall wander as widely from the American track as the pole is
from the track of the sun.

I have said that it is one principle of the American system, that the
people limit their governments, National and State. They do so; but it
is another principle, equally true and certain, and, according to my
judgment of things, equally important, that the people often _limit
themselves_. They set bounds to their own power. They have chosen to
secure the institutions which they establish against the sudden impulses
of mere majorities. All our institutions teem with instances of this. It
was their great conservative principle, in constituting forms of
government, that they should secure what they had established against
hasty changes by simple majorities. By the fifth article of the
Constitution of the United States, Congress, two thirds of both houses
concurring, may propose amendments of the Constitution; or, on the
application of the legislatures of two thirds of the States, may call a
convention; and amendments proposed in either of these forms must be
ratified by the legislatures or conventions of three fourths of the
States. The fifth article of the Constitution, if it was made a topic
for those who framed the "people's constitution" of Rhode Island, could
only have been a matter of reproach. It gives no countenance to any of
their proceedings, or to any thing like them. On the contrary, it is one
remarkable instance of the enactment and application of that great
American principle, that the constitution of government should be
cautiously and prudently interfered with, and that changes should not
ordinarily be begun and carried through by bare majorities.

But the people limit themselves also in other ways. They limit
themselves in the first exercise of their political rights. They limit
themselves, by all their constitutions, in two important respects; that
is to say, in regard to the qualifications of _electors_, and in regard
to the qualifications of the _elected_. In every State, and in all the
States, the people have precluded themselves from voting for everybody
they might wish to vote for; they have limited their own right of
choosing. They have said, We will elect no man who has not such and such
qualifications. We will not vote ourselves, unless we have such and such
qualifications. They have also limited themselves to certain prescribed
forms for the conduct of elections. They must vote at a particular
place, at a particular time, and under particular conditions, or not at
all. It is in these modes that we are to ascertain the will of the
American people; and our Constitution and laws know no other mode. We
are not to take the will of the people from public meetings, nor from
tumultuous assemblies, by which the timid are terrified, the prudent are
alarmed, and by which society is disturbed. These are not American modes
of signifying the will of the people, and they never were. If any thing
in the country, not ascertained by a regular vote, by regular returns,
and by regular representation, has been established, it is an exception,
and not the rule; it is an anomaly which, I believe, can scarcely be
found.

It is true that at the Revolution, when all government was immediately
dissolved, the people got together, and what did they do? Did they
exercise sovereign power? They began an inceptive organization, the
object of which was to bring together representatives of the people, who
should form a government. This was the mode of proceeding in those
States where their legislatures were dissolved. It was much like that
had in England upon the abdication of James the Second. He ran away, he
abdicated. He threw the great seal into the Thames. I am not aware that,
on the 4th of May, 1842, any great seal was thrown into Providence
River! But James abdicated, and King William took the government; and
how did he proceed? Why, he at once requested all who had been members
of the old Parliament, of any regular Parliament in the time of Charles
the Second, to assemble. The Peers, being a standing body, could of
course assemble; and all they did was to recommend the calling of a
convention, to be chosen by the same electors, and composed of the same
numbers, as composed a Parliament. The convention assembled, and, as all
know, was turned into a Parliament. This was a case of necessity, a
revolution. Don't we call it so? And why? Not merely because a new
sovereign then ascended the throne of the Stuarts, but because there was
a change in the organization of the government. The legal and
established succession was broken. The convention did not assemble under
any preceding law. There was a _hiatus_, a syncope, in the action of the
body politic. This was revolution, and the Parliaments that assembled
afterwards referred their legal origin to that revolution.

Is it not obvious enough, that men cannot get together and count
themselves, and say they are so many hundreds and so many thousands, and
judge of their own qualifications, and call themselves the people, and
set up a government? Why, another set of men, forty miles off, on the
same day, with the same propriety, with as good qualifications, and in
as large numbers, may meet and set up another government; one may meet
at Newport and another at Chepachet, and both may call themselves the
people. What is this but anarchy? What liberty is there here, but a
tumultuary, tempestuous, violent, stormy liberty, a sort of South
American liberty, without power except in its spasms, a liberty
supported by arms to-day, crushed by arms to-morrow? Is that _our_
liberty?

The regular action of popular power, on the other hand, places upon
public liberty the most beautiful face that ever adorned that angel
form. All is regular and harmonious in its features, and gentle in its
operation. The stream of public authority, under American liberty,
running in this channel, has the strength of the Missouri, while its
waters are as transparent as those of a crystal lake. It is powerful for
good. It produces no tumult, no violence, and no wrong;--

"Though deep, yet clear; though gentle, yet not dull;
Strong, without rage; without o'erflowing, full."

Another American principle growing out of this, and just as important
and well settled as is the truth that the people are the source of
power, is, that, when in the course of events it becomes necessary to
ascertain the will of the people on a new exigency, or a new state of
things or of opinion, the legislative power provides for that
ascertainment by an ordinary act of legislation. Has not that been our
whole history? It would take me from now till the sun shall go down to
advert to all the instances of it, and I shall only refer to the most
prominent, and especially to the establishment of the Constitution under
which you sit. The old Congress, upon the suggestion of the delegates
who assembled at Annapolis in May, 1786, recommended to the States that
they should send delegates to a convention to be holden at Philadelphia
to form a Constitution. No article of the old Confederation gave them
power to do this; but they did it, and the States did appoint delegates,
who assembled at Philadelphia, and formed the Constitution. It was
communicated to the old Congress, and that body recommended to the
States to make provision for calling the people together to act upon its
adoption. Was not that exactly the case of passing a law to ascertain
the will of the people in a new exigency? And this method was adopted
without opposition, nobody suggesting that there could be any other mode
of ascertaining the will of the people.

My learned friend went through the constitutions of several of the
States. It is enough to say, that, of the old thirteen States, the
constitutions, with but one exception, contained no provision for their
own amendment. In New Hampshire there was a provision for taking the
sense of the people once in seven years. Yet there is hardly one that
has not altered its constitution, and it has been done by conventions
called by the legislature, as an ordinary exercise of legislative power.
Now what State ever altered its constitution in any other mode? What
alteration has ever been brought in, put in, forced in, or got in
anyhow, by resolutions of mass meetings, and then by applying force? In
what State has an assembly, calling itself the people, convened without
law, without authority, without qualifications, without certain
officers, with no oaths, securities, or sanctions of any kind, met and
made a constitution, and called it the constitution of the STATE? There
must be some authentic mode of ascertaining the will of the people, else
all is anarchy. It resolves itself into the law of the strongest, or,
what is the same thing, of the most numerous for the moment, and all
constitutions and all legislative rights are prostrated and disregarded.

But my learned adversary says, that, if we maintain that the people (for
he speaks in the name and on behalf of the people, to which I do not
object) cannot commence changes in their government but by some previous
act of legislation, and if the legislature will not grant such an act,
we do in fact follow the example of the Holy Alliance, "the doctors of
Laybach," where the assembled sovereigns said that all changes of
government must proceed from sovereigns; and it is said that we mark out
the same rule for the people of Rhode Island.

Now will any man, will my adversary here, on a moment's reflection,
undertake to show the least resemblance on earth between what I have
called the American doctrine, and the doctrine of the sovereigns at
Laybach? What do I contend for? I say that the will of the people must
prevail, when it is ascertained; but there must be some legal and
authentic mode of ascertaining that will; and then the people may make
what government they please. Was that the doctrine of Laybach? Was not
the doctrine there held this,--that the _sovereigns_ should say what
changes shall be made? Changes must proceed from them; new constitutions
and new laws emanate from them; and all the people had to do was to
submit. That is what they maintained. All changes began with the
sovereigns, and ended with the sovereigns. Pray, at about the time that
the Congress of Laybach was in session, did the allied powers put it to
the people of Italy to say what sort of change they would have? And at a
more recent date, did they ask the citizens of Cracow what change they
would have in their constitution? Or did they take away their
constitution, laws, and liberties, by their own sovereign act? All that
is necessary here is, that the will of the people should be ascertained,
by some regular rule of proceeding, prescribed by previous law. But when
ascertained, that will is as sovereign as the will of a despotic prince,
of the Czar of Muscovy, or the Emperor of Austria himself, though not
quite so easily made known. A ukase or an edict signifies at once the
will of a despotic prince; but that will of the people, which is here as
sovereign as the will of such a prince, is not so quickly ascertained or
known; and thence arises the necessity for suffrage, which is the mode
whereby each man's power is made to tell upon the constitution of the
government, and in the enactment of laws.

One of the most recent laws for taking the will of the people in any
State is the law of 1845, of the State of New York. It begins by
recommending to the people to assemble in their several election
districts, and proceed to vote for delegates to a convention. If you
will take the pains to read that act, it will be seen that New York
regarded it as an ordinary exercise of legislative power. It applies all
the penalties for fraudulent voting, as in other elections. It punishes
false oaths, as in other cases. Certificates of the proper officers were
to be held conclusive, and the will of the people was, in this respect,
collected essentially in the same manner, supervised by the same
officers, under the same guards against force and fraud, collusion and
misrepresentation, as are usual in voting for State or United States
officers.

We see, therefore, from the commencement of the government under which
we live, down to this late act of the State of New York, one uniform
current of law, of precedent, and of practice, all going to establish
the point that changes in government are to be brought about by the will
of the people, assembled under such legislative provisions as may be
necessary to ascertain that will, truly and authentically.

In the next place, may it please your honors, it becomes very important
to consider what bearing the Constitution and laws of the United States
have upon this Rhode Island question. Of course the Constitution of the
United States recognizes the existence of States. One branch of the
legislature of the United States is composed of Senators, appointed by
the States, in their State capacities. The Constitution of the United
States[1] says that "the United States shall guarantee to each State a
republican form of government, and shall protect the several States
against invasion; and on application of the legislature, or of the
executive when the legislature cannot be convened, against domestic
violence." Now, I cannot but think this a very stringent article,
drawing after it the most important consequences, and all of them _good_
consequences. The Constitution, in the section cited, speaks of States
as having existing legislatures and existing executives; and it speaks
of cases in which violence is practised or threatened against the State,
in other words, "domestic violence"; and it says the State shall be
protected. It says, then, does it not? that the existing government of a
State shall be protected. My adversary says, if so, and if the
legislature would not call a convention, and if, when the people rise
to make a constitution, the United States step in and prohibit them,
why, the rights and privileges of the people are checked, controlled.
Undoubtedly. The Constitution does not proceed on the _ground_ of
revolution; it does not proceed on any _right_ of revolution; but it
does go on the idea, that, within and under the Constitution, no new
form of government can be established in any State, without the
authority of the existing government.

Admitting the legitimacy of the argument of my learned adversary, it
would not authorize the inference he draws from it, because his own case
falls within the same range. He has proved, he thinks, that there was an
existing government, a paper government, at least; a rightful
government, as he alleges. Suppose it to be rightful, in his sense of
right. Suppose three fourths of the people of Rhode Island to have been
engaged in it, and ready to sustain it. What then? How is it to be done
without the consent of the previous government? How is the fact, that
three fourths of the people are in favor of the new government, to be
legally ascertained? And if the existing government deny that fact, and
if that government hold on, and will not surrender till displaced by
force, and if it is threatened by force, then the case of the
Constitution arises, and the United States must aid the government that
is in, because an attempt to displace a government by force is "domestic
violence." It is the exigency provided for by the Constitution. If the
existing government maintain its post, though three fourths of the State
have adopted the new constitution, is it not evident enough that the
exigency arises in which the constitutional power here must go to the
aid of the existing government? Look at the law of 28th February,
1795.[2] Its words are, "And in case of an insurrection in any State,
_against the government thereof_, it shall be lawful for the President
of the United States, on application of the legislature of such State,
or of the executive (when the legislature cannot be convened), to call
forth such number of the militia of any other State or States, as may be
applied for, as he may judge sufficient to suppress such insurrection."
Insurrection against the _existing_ government is, then, the thing to be
suppressed.

But the law and the Constitution, the whole system of American
institutions, do not contemplate a case in which a resort will be
necessary to proceedings _aliunde_, or outside of the law and the
Constitution, for the purpose of amending the frame of government. They
go on the idea that the States are all republican, that they are all
representative in their forms, and that these popular governments in
each State, the annually created creatures of the people, will give all
proper facilities and necessary aids to bring about changes which the
people may judge necessary in their constitutions. They take that ground
and act on no other supposition. They assume that the popular will in
all particulars will be accomplished. And history has proved that the
presumption is well founded.

This, may it please your honors, is the view I take of what I have
called the American system. These are the methods of bringing about
changes in government.

Now, it is proper to look into this record, and see what the questions
are that are presented by it, and consider,--

1. Whether the case is one for judicial investigation at all; that is,
whether this court can try the matters which the plaintiff has offered
to prove in the court below; and,

2. In the second place, whether many things which he did offer to prove,
if they could have been and had been proved, were not acts of
criminality, and therefore no justification; and,

3. Whether all that was offered to be proved would show that, in point
of fact, there had been established and put in operation any new
constitution, displacing the old charter government of Rhode Island.

The declaration is in trespass. The writ was issued on the 8th of
October, 1842, in which Martin Luther complains that Luther M. Borden
and others broke into his house in Warren, Rhode Island, on the 29th of
June, 1842, and disturbed his family and committed other illegal acts.

The defendant answers, that large numbers of men were in arms, in Rhode
Island, for the purpose of overthrowing the government of the State, and
making war upon it; and that, for the preservation of the government and
people, martial law had been proclaimed by the Governor, under an act of
the legislature, on the 25th of June, 1842. The plea goes on to aver,
that the plaintiff was aiding and abetting this attempt to overthrow the
government, and that the defendant was under the military authority of
John T. Child, and was ordered by him to arrest the plaintiff; for which
purpose he applied at the door of his house, and being refused entrance
he forced the door.

The action is thus for an alleged trespass, and the plea is
justification under the law of Rhode Island. The plea and replications
are as usual in such cases in point of form. The plea was filed at the
November term of 1842, and the case was tried at the November term of
1843, in the Circuit Court in Rhode Island. In order to make out a
defence, the defendant offered the charter of Rhode Island, the
participation of the State in the Declaration of Independence, its
uniting with the Confederation in 1778, its admission into the Union in
1790, its continuance in the Union and its recognition as a State down
to May, 1843, when the constitution now in force was adopted. Here let
it be particularly remarked, that Congress admitted Rhode Island into
the Constitution under this identical old charter government, thereby
giving sanction to it as a republican form of government. The defendant
then refers to all the laws and proceedings of the Assembly, till the
adoption of the present constitution of Rhode Island. To repel the case
of the defendant, the plaintiff read the proceedings of the old
legislature, and documents to show that the idea of changing the
government had been entertained as long ago as 1790. He read also
certain resolutions of the Assembly in 1841, memorials praying changes
in the constitution, and other documents to the same effect. He next
offered to prove that suffrage associations were formed throughout the
State in 1840 and 1841, and that steps were taken by them for holding
public meetings; and to show the proceedings had at those meetings. In
the next place, he offered to prove that a mass convention was held at
Newport, attended by over four thousand persons, and another at
Providence, at which over six thousand attended, at which resolutions
were passed in favor of the change. Then he offered to prove the
election of delegates; the meeting of the convention in October, 1841,
and the draughting of the Dorr constitution; the reassembling in 1841,
the completion of the draught, its submission to the people, their
voting upon it, its adoption, and the proclamation on the 13th of
January, 1842, that the constitution so adopted was the law of the land.

That is the substance of what was averred as to the formation of the
Dorr constitution. The plaintiff next offered to prove that the
constitution was adopted by a large majority of the qualified voters of
the State; that officers were elected under it in April, 1842; that this
new government assembled on the 3d of May; and he offered a copy of its
proceedings. He sets forth that the court refused to admit testimony
upon these subjects, and to these points; and ruled that the old
government and laws of the State were in full force and power, and then
existing, when the alleged trespass was made, and that they justified
the acts of the defendants, according to their plea.

I will give a few references to other proceedings of this new
government. The new constitution was proclaimed on the 13th of January,
1842, by some of the officers of the convention. On the 13th of April,
officers were appointed under it, and Mr. Dorr was chosen governor. On
Tuesday, the 3d of May, the new legislature met, was organized, and
then, it is insisted, the new constitution became the law of the land.
The legislature sat through that whole day, morning and evening;
adjourned; met the next day, and sat through all that day, morning and
evening, and did a great deal of paper business. It went through the
forms of choosing a Supreme Court, and transacting other business of a
similar kind, and on the evening of the 4th of May it adjourned, to meet
again on the first Monday of July, in Providence,

"And word spake never more."

It never reassembled. This government, then, whatever it was, came into
existence on the _third_ day of May, and went out of existence on the
_fourth_ day of May.

I will now give some references concerning the new constitution
authorized by the government, the old government, and which is now the
constitution of Rhode Island. It was framed in November, 1842. It was
voted upon by the people on the 21st, 22d, and 23d days of November, was
then by them accepted, and became by its own provisions the constitution
of Rhode Island on the first Tuesday of May, 1843.

Now, what, in the mean time, had become of Mr. Dorr's government?
According to the principle of its friends, they are forced to admit that
it was superseded by the new, that is to say, the present government,
because the people accepted the new government. But there was no new
government till May, 1843. According to them, then, there was an
_interregnum_ of a whole year. If Mr. Dorr had had a government, what
became of it? If it ever came in, what put it out of existence? Why did
it not meet on the day to which it had adjourned? It was not displaced
by the new constitution, because that had not been agreed upon in
convention till November. It was not adopted by the people till the last
of November, and it did not go into operation till May. What then had
become of Mr. Dorr's government?

I think it is important to note that the new constitution, established
according to the prescribed forms, came thus into operation in May,
1843, and was admitted by all to be the constitution of the State. What
then happened in the State of Rhode Island? I do not mean to go through
all the trials that were had after this ideal government of Mr. Dorr
ceased to exist; but I will ask attention to the report of the trial of
Dorr for treason, which took place in 1844, before all the judges of the
Supreme Court of the State. He was indicted in August, 1842, and the
trial came on in March, 1844. The indictment was found while the charter
government was in force, and the trial was had under the new
constitution. He was found guilty of treason.

And I turn to the report of the trial now, to call attention to the
language of the court in its charge, as delivered by Chief Justice
Durfee. I present the following extract from that charge:--

"It may be, Gentlemen, that he really believed himself to be the
governor of the State, and that he acted throughout under this
delusion. However this may go to extenuate the offence, it does not
take from it its legal guilt. It is no defence to an indictment for
the violation of any law for the defendant to come into court and
say, 'I thought that I was but exercising a constitutional right,
and I claim an acquittal on the ground of mistake,' Were it so,
there would be an end to all law and all government. Courts and
juries would have nothing to do but to sit in judgment upon
indictments, in order to acquit or excuse. The accused has only to
prove that he has been systematic in committing crime, and that he
thought that he had a right to commit it; and, according to this
doctrine, you must acquit. The main ground upon which the prisoner
sought for a justification was, that a constitution had been
adopted by a majority of the male adult population of this State,
voting in their primary or natural capacity or condition, and that
he was subsequently elected, and did the acts charged, as governor
under it. He offered the votes themselves to prove its adoption,
which were also to be followed by proof of his election. This
evidence we have ruled out. Courts and juries, Gentlemen, do not
count votes to determine whether a constitution has been adopted or
a governor elected, or not. Courts take notice, without proof
offered from the bar, what the constitution is or was, and who is
or was the governor of their own State. It belongs to the
legislature to exercise this high duty. It is the legislature
which, in the exercise of its delegated sovereignty, counts the
votes and declares whether a constitution be adopted or a governor
elected, or not; and we cannot revise and reverse their acts in
this particular, without usurping their power. Were the votes on
the adoption of our present constitution now offered here to prove
that it was or was not adopted; or those given for the governor
under it, to prove that he was or was not elected; we could not
receive the evidence ourselves, we could not permit it to pass to
the jury. And why not? Because, if we did so, we should cease to be
a mere judicial, and become a political tribunal, with the whole
sovereignty in our hands. Neither the people nor the legislature
would be sovereign. We should be sovereign, or you would be
sovereign; and we should deal out to parties litigant, here at our
bar, sovereignty to this or that, according to rules or laws of our
own making, and heretofore unknown in courts.

"In what condition would this country be, if appeals could be thus
taken to courts and juries? _This_ jury might decide one way, and
_that_ another, and the sovereignty might be found here to-day, and
there to-morrow. Sovereignty is above courts or juries, and the
creature cannot sit in judgment upon its creator. Were this
instrument offered as the constitution of a foreign state, we
might, perhaps, under some circumstances, require proof of its
existence; but, even in that case, the fact would not be
ascertained by counting the votes given at its adoption, but by the
certificate of the secretary of state, under the broad seal of the
state. This instrument is not offered as a foreign constitution,
and this court is bound to know what the constitution of the
government is under which it acts, without any proof even of that
high character. We know nothing of the existence of the so-called
'people's constitution' as law, and there is no proof before you of
its adoption, and of the election of the prisoner as governor under
it; and you can return a verdict only on the evidence that has
passed to you."

Having thus, may it please your honors, attempted to state the questions
as they arise, and having referred to what has taken place in Rhode
Island, I shall present what further I have to say in three
propositions:--

1st. I say, first, that the matters offered to be proved by the
plaintiff in the court below are not of judicial cognizance; and proof
of them, therefore, was properly rejected by the court.

2d. If all these matters could be, and had been, legally proved, they
would have constituted no defence, because they show nothing but an
_illegal_ attempt to overthrow the government of Rhode Island.

3d. No proof was offered by the plaintiff to show that, in fact, another
government had gone into operation, by which the Charter government had
become displaced.

And first, these matters are not of judicial cognizance. Does this need
arguing? Are the various matters of fact alleged, the meetings, the
appointment of committees, the qualifications of voters,--is there any
one of all these matters of which a court of law can take cognizance in
a case in which it is to decide on sovereignty? Are fundamental changes
in the frame of a government to be thus proved? The thing to be proved
is a change of the sovereign power. Two legislatures existed at the same
time, both claiming power to pass laws. Both could not have a legal
existence. What, then, is the attempt of our adversaries? To put down
one sovereign government, and to put another up, by facts and
proceedings in regard to elections out of doors, unauthorized by any law
whatever. Regular proceedings for a change of government may in some
cases, perhaps, be taken notice of by a court; but this court must look
elsewhere than out of doors, and to public meetings, irregular and
unauthorized, for the decision of such a question as this. It naturally
looks to that authority under which it sits here, to the provisions of
the Constitution which have created this tribunal, and to the laws by
which its proceedings are regulated. It must look to the acts of the
government of the United States, in its various branches.

This Rhode Island disturbance, as everybody knows, was brought to the
knowledge of the President of the United States[3] by the public
authorities of Rhode Island; and how did he treat it? The United States
have guaranteed to each State a republican form of government. And a law
of Congress has directed the President, in a constitutional case
requiring the adoption of such a proceeding, to call out the militia to
put down domestic violence, and suppress insurrection. Well, then,
application was made to the President of the United States, to the
executive power of the United States. For, according to our system, it
devolves upon the executive to determine, in the first instance, what
are and what are not governments. The President recognizes governments,
foreign governments, as they appear from time to time in the occurrences
of this changeful world. And the Constitution and the laws, if an
insurrection exists against the government of any State, rendering it
necessary to appear with an armed force, make it his duty to call out
the militia and suppress it.

Two things may here be properly considered. The first is, that the
Constitution declares that the United States shall protect every State
against domestic violence; and the law of 1795, making provision for
carrying this constitutional duty into effect in all proper cases,
declares, that, "in case of an insurrection in any State against the
government thereof, it shall be lawful for the President of the United
States to call out the militia of other States to suppress such
insurrection." These constitutional and legal provisions make it the
indispensable duty of the President to decide, in cases of commotion,
what is the rightful government of the State. He cannot avoid such
decision. And in this case he decided, of course, that the existing
government, the charter government, was the rightful government. He
could not possibly have decided otherwise.

In the next place, if events had made it necessary to call out the
militia, and the officers and soldiers of such militia, in protecting
the existing government, had done precisely what the defendants in this
case did, could an action have been maintained against them? No one
would assert so absurd a proposition.

In reply to the requisition of the Governor, the President stated that
he did not think it was yet time for the application of force; but he
wrote a letter to the Secretary of War, in which he directed him to
confer with the Governor of Rhode Island; and, whenever it should appear
to them to be necessary, to call out from Massachusetts and Connecticut
a militia force sufficient to _terminate at once_ this insurrection, by
the authority of the government of the United States. We are at no loss,
therefore, to know how the executive government of the United States
treated this insurrection. It was regarded as fit _to be suppressed_.
That is manifest from the President's letters to the Secretary of War
and to Governor King.

Now, the eye of this court must be directed to the proceedings of the
general government, which had its attention called to the subject, and
which did institute proceedings respecting it. And the court will learn
from the proceedings of the executive branch of the government, and of
the two chambers above us, how the disturbances in Rhode Island were
regarded; whether they were looked upon as the establishment of any
government, or as a mere pure, unauthorized, unqualified _insurrection_
against the authority of the existing government of the State.

I say, therefore, that, upon that ground, these facts are not facts
which this court can inquire into, or which the court below could try;
because they are facts going to prove (if they prove any thing) the
establishment of a new sovereignty; and that is a question to be settled
elsewhere and otherwise. From the very nature of the case, it is not a
question to be decided by judicial inquiry. Take, for example, one of
the points which it involves. My adversary offered to prove that the
constitution was adopted by a majority of the people of Rhode Island; by
a large majority, as he alleges. What does this offer call on your
honors to do? Why, to ascertain, by proof, what is the number of
citizens of Rhode Island, and how many attended the meetings at which
the delegates to the convention were elected; and then you have to add
them all up, and prove by testimony the qualifications of every one of
them to be an elector. It is enough to state such a proposition to show
its absurdity. As none such ever was sustained in a court of law, so
none can be or ought to be sustained. Observe that minutes of
proceedings can be no proof, for they were made by no authentic persons;
registers were kept by no warranted officers; chairmen and moderators
were chosen without authority. In short, there are no official records;
there is no testimony in the case but parol. Chief Justice Durfee has
stated this so plainly, that I need not dwell upon it.

But, again, I say you cannot look into the facts attempted to be proved,
because of the certainty of the continuance of the old government till
the new and legal constitution went into effect on the 3d of May, 1843.
To prove that there was another constitution of two days' duration would
be ridiculous. And I say that the decision of Rhode Island herself, by
her legislature, by her executive, by the adjudication of her highest
court of law, on the trial of Dorr, has shut up the whole case. Do you
propose,--I will not put it in that form,--but would it be proper for
this court to reverse that adjudication? That declares that the judges
of Rhode Island know nothing of the "People's Constitution." Is it
possible, then, for this court, or for the court below, to know any
thing of it?

It appears to me that, if there were nothing else in the case, the
proceedings of Rhode Island herself must close everybody's mouth, in the
court and out of it. Rhode Island is competent to decide the question
herself, and everybody else ought to be bound by her decision. And she
has decided it.

And it is but a branch of this to say, according to my second
proposition,--

2. That if every thing offered had been proved, if in the nature of the
case these facts and proceedings could have been received as proof, the
court could not have listened to them, because every one of them is
regarded by the State in which they took place as a _criminal_ act. Who
can derive any authority from acts declared to be criminal? The very
proceedings which are now set up here show that this pretended
constitution was founded upon acts which the legislature of the State
had provided punishment for, and which the courts of the State have
punished. All, therefore, which the plaintiff has attempted to prove,
are acts which he was not allowed to prove, because they were criminal
in themselves, and have been so treated and punished, so far as the
State government, in its discretion, has thought proper to punish them.

3. Thirdly, and lastly, I say that there is no evidence offered, nor has
any distinct allegation been made, that there was an actual government
established and put in operation to displace the Charter government,
even for a single day. That is evident enough. You find the whole
embraced in those two days, the 3d and 4th of May. The French revolution
was thought to be somewhat rapid. That took _three_ days. But this work
was accomplished in two. It is all there, and what is it? Its birth, its
whole life, and its death were accomplished in forty-eight hours. What
does it appear that the members of this government did? Why, they voted
that A should be treasurer, and C, secretary, and Mr. Dorr, governor;
and chose officers of the Supreme Court. But did ever any man under that
authority attempt to exercise a particle of official power? Did any man
ever bring a suit? Did ever an officer make an arrest? Did any act
proceed from any member of this government, or from any agent of it, to
touch a citizen of Rhode Island in his person, his safety, or his
property, so as to make the party answerable upon an indictment or in a
civil suit? Never. It never performed one single act of government. It
never did a thing in the world! All was patriotism, and all was paper;
and with patriotism and with paper it went out on the 4th of May,
admitting itself to be, as all must regard it, a contemptible _sham_!

I have now done with the principles involved in this case, and the
questions presented on this record.

In regard to the other case, I have but few words to say. And, first, I
think it is to be regretted that the court below sent up such a list of
points on which it was divided. I shall not go through them, and shall
leave it to the court to say whether, after they shall have disposed of
the first cause, there is any thing left. I shall only draw attention to
the subject of martial law; and in respect to that, instead of going
back to martial law as it existed in England at the time the charter of
Rhode Island was granted, I shall merely observe that martial law
confers power of arrest, of summary trial, and prompt execution; and
that when it has been proclaimed, the land becomes a camp, and the law
of the camp is the law of the land. Mr. Justice Story defines martial
law to be the law of war, a resort to military authority in cases where
the civil law is not sufficient; and it confers summary power, not to be
used arbitrarily or for the gratification of personal feelings of hatred
or revenge, but for the preservation of order and of the public peace.
The officer clothed with it is to judge of the degree of force that the
necessity of the case may demand; and there is no limit to this, except
such as is to be found in the nature and character of the exigency.

I now take leave of this whole case. That it is an interesting incident
in the history of our institutions, I freely admit. That it has come
hither is a subject of no regret to me. I might have said, that I see
nothing to complain of in the proceedings of what is called the Charter
government of Rhode Island, except that it might perhaps have discreetly
taken measures at an earlier period for revising the constitution. If in
that delay it erred, it was the error into which prudent and cautious
men would fall. As to the enormity of freehold suffrage, how long is it
since Virginia, the parent of States, gave up her freehold suffrage? How
long is it since nobody voted for governor in New York without a
freehold qualification? There are now States in which no man can vote
for members of the upper branch of the legislature who does not own
fifty acres of land. Every State requires more or less of a property
qualification in its officers and electors; and it is for discreet
legislation, or constitutional provisions, to determine what its amount
shall be. Even the Dorr constitution had a property qualification.
According to its provisions, for officers of the State, to be sure,
anybody could vote; but its authors remembered that taxation and
representation go together, and therefore they declared that no man, in
any town, should vote to lay a tax for town purposes who had not the
means to pay his portion. It said to him, You cannot vote in the town of
Providence to levy a tax for repairing the streets of Providence; but
you may vote for governor, and for thirteen representatives from the
town of Providence, and send them to the legislature, and there they may
tax the people of Rhode Island at their sovereign will and pleasure.

I believe that no harm can come of the Rhode Island agitation in 1841,
but rather good. It will purify the political atmosphere from some of
its noxious mists, and I hope it will clear men's minds from unfounded
notions and dangerous delusions. I hope it will bring them to look at
the regularity, the order, with which we carry on what, if the word were
not so much abused, I would call our _glorious_ representative system of
popular government. Its principles will stand the test of this crisis,
as they have stood the test and torture of others. They are exposed
always, and they always will be exposed, to dangers. There are dangers
from the extremes of too much and of too little popular liberty; from
monarchy, or military despotism, on one side, and from licentiousness
and anarchy on the other. This always will be the case. The classical
navigator had been told that he must pass a narrow and dangerous strait:

"Dextrum Scylla latus, laevum implacata Charybdis,
Obsidet."

Forewarned he was alive to his danger, and knew, by signs not doubtful,
where he was, when he approached its scene:

"Et gemitum ingentem pelagi, pulsataque saxa,
Audimus longe, fractasque ad litora voces;
Exsultantque vada, atque aestu miscentur arenae.
... Nimirum haec ilia Charybdis!"

The long-seeing sagacity of our fathers enables us to know equally well
where we are, when we hear the voices of tumultuary assemblies, and see
the turbulence created by numbers meeting and acting without the
restraints of law; and has most wisely provided constitutional means of
escape and security. When the established authority of government is
openly contemned; when no deference is paid to the regular and authentic
declarations of the public will; when assembled masses put themselves
above the law, and, calling themselves the people, attempt by force to
seize on the government; when the social and political order of the
state is thus threatened with overthrow, and the spray of the waves of
violent popular commotion lashes the stars,--our political pilots may
well cry out:

"Nimirum haec illa Charybdis!"

The prudence of the country, the sober wisdom of the people, has thus
far enabled us to carry this Constitution, and all our constitutions,
through the perils which have surrounded them, without running upon the
rocks on one side, or being swallowed up in the eddying whirlpools of
the other. And I fervently hope that this signal happiness and good
fortune will continue, and that our children after us will exercise a
similar prudence, and wisdom, and justice; and that, under the Divine
blessing, our system of free government may continue to go on, with
equal prosperity, to the end of time.

[Footnote 1: Art. IV. sec. 4.]

[Footnote 2: Statutes at Large, Vol. I. p. 424.]

[Footnote 3: Mr. Tyler.]

OBJECTS OF THE MEXICAN WAR.

A SPEECH DELIVERED IN THE SENATE OF THE UNITED STATES, ON THE 23D OF
MARCH, 1848, ON THE BILL FROM THE HOUSE OF REPRESENTATIVES FOR RAISING A
LOAN OF SIXTEEN MILLIONS OF DOLLARS.

[On the 2d of February, 1848, the treaty called a "treaty of peace,
friendship, limits, and settlement, between the United States of America
and the Mexican Republic," was signed at Guadalupe Hidalgo. This treaty,
with the advice and consent of the Senate, was ratified by the President
of the United States on the 16th of March. In the mean time, a bill,
introduced into the House of Representatives on the 18th of February, to
authorize a loan of sixteen millions of dollars for the purpose of
carrying on the war, passed through that house, and was considered in
the Senate. Other war measures were considered and adopted by the two
houses, after the signature and ratification of the treaty. On the 23d
of March, the Sixteen Million Loan Bill being under consideration, Mr.
Webster spoke as follows.]

MR. PRESIDENT,--On Friday a bill passed the Senate for raising ten
regiments of new troops for the further prosecution of the war against
Mexico; and we have been informed that that measure is shortly to be
followed, in this branch of the legislature, by a bill to raise twenty
regiments of volunteers for the same service. I was desirous of
expressing my opinions against the object of these bills, against the
supposed necessity which leads to their enactment, and against the
general policy which they are apparently designed to promote.
Circumstances personal to myself, but beyond my control, compelled me to
forego, on that day, the execution of that design. The bill now before
the Senate is a measure for raising money to meet the exigencies of the
government, and to provide the means, as well as for other things, for
the pay and support of these thirty regiments.

Sir, the scenes through which we have passed, and are passing, here, are
various. For a fortnight the world supposes we have been occupied with
the ratification of a treaty of peace, and that within these walls, "the
world shut out," notes of peace, and hopes of peace, nay, strong
assurances of peace, and indications of peace, have been uttered to
console and to cheer us. Sir, it has been over and over stated, and is
public, that we have ratified a treaty, of course a treaty of peace,
and, as the country has been led to suppose, not of an uncertain, empty,
and delusive peace, but of real and substantial, a gratifying and an
enduring peace, a peace which would stanch the wounds of war, prevent
the further flow of human blood, cut off these enormous expenses, and
return our friends, and our brothers, and our children, if they be yet
living, from the land of slaughter, and the land of still more dismal
destruction by climate, to our firesides and our arms.

Hardly have these halcyon notes ceased upon our ears, when, in resumed
public session, we are summoned to fresh warlike operations; to create
a new army of thirty thousand men for the further prosecution of the
war; to carry the war, in the language of the President, still more
dreadfully into the vital parts of the enemy, and to press home, by fire
and sword, the claims we make, and the grounds which we insist upon,
against our fallen, prostrate, I had almost said, our ignoble enemy. If
we may judge from the opening speech of the honorable Senator from
Michigan, and from other speeches that have been made upon this floor,
there has been no time, from the commencement of the war, when it has
been more urgently pressed upon us, not only to maintain, but to
increase, our military means; not only to continue the war, but to press
it still more vigorously than at present.

Pray, what does all this mean? Is it, I ask, confessed, then,--is it
confessed that we are no nearer a peace than we were when we snatched up
this bit of paper called, or miscalled, a treaty, and ratified it? Have
we yet to fight it out to the utmost, as if nothing pacific had
intervened?

I wish, Sir, to treat the proceedings of this and of every department of
the government with the utmost respect. The Constitution of this
government, and the exercise of its just powers in the administration of
the laws under it, have been the cherished object of all my unimportant
life. But, if the subject were not one too deeply interesting, I should
say our proceedings here may well enough cause a smile. In the ordinary
transaction of the foreign relations of this and of all other
governments, the course has been to negotiate first, and to ratify
afterwards. This seems to be the natural order of conducting intercourse
between foreign states. We have chosen to reverse this order. We ratify
first, and negotiate afterwards. We set up a treaty, such as we find it
and choose to make it, and then send two ministers plenipotentiary to
negotiate thereupon in the capital of the enemy. One would think, Sir,
the ordinary course of proceeding much the juster; that to negotiate, to
hold intercourse, and come to some arrangement, by authorized agents,
and then to submit that arrangement to the sovereign authority to which
these agents are responsible, would be always the most desirable method
of proceeding. It strikes me that the course we have adopted is strange,
is even _grotesque_. So far as I know, it is unprecedented in the
history of diplomatic intercourse. Learned gentlemen on the floor of the
Senate, interested to defend and protect this course, may, in their
extensive reading, have found examples of it. I know of none.

Sir, we are in possession, by military power, of New Mexico and
California, countries belonging hitherto to the United States of Mexico.
We are informed by the President that it is his purpose to retain them,
to consider them as territory fit to be attached to these United States
of America; and our military operations and designs now before the
Senate are to enforce this claim of the executive of the United States.
We are to compel Mexico to agree that the part of her dominions called
New Mexico, and that called California, shall be ceded to us. We are in
possession, as is said, and she shall yield her title to us. This is the
precise object of this new army of thirty thousand men. Sir, it is the
identical object, in my judgment, for which the war was originally
commenced, for which it has hitherto been prosecuted, and in furtherance
of which this treaty is to be used but as one means to bring about this
general result; that general result depending, after all, on our own
superior power, and on the necessity of submitting to any terms which we
may prescribe to fallen, fallen, fallen Mexico!

Sir, the members composing the other house, the more popular branch of
the legislature, have all been elected since, I had almost said the
fatal, I will say the remarkable, events of the 11th and 13th days of
May, 1846. The other house has passed a resolution affirming that "the
war with Mexico was begun unconstitutionally and unnecessarily by the
executive government of the United States." I concur in that sentiment;
I hold that to be the most recent and authentic expression of the will
and opinion of the majority of the people of the United States.

There is, Sir, another proposition, not so authentically announced
hitherto, but, in my judgment, equally true and equally capable of
demonstration; and that is, that this war was begun, has been continued,
and is now prosecuted, for the great and leading purpose of the
acquisition of new territory, out of which to bring new States, with
their Mexican population, into this our Union of the United States.

If unavowed at first, this purpose did not remain unavowed long. However
often it may be said that we did not go to war for conquest,

"credat Judaeus Apella,
Non ego,"

yet the moment we get possession of territory we must retain it and make
it our own. Now I think that this original object has not been changed,
has not been varied. Sir, I think it exists in the eyes of those who
originally contemplated it, and who began the war for it, as plain, as
attractive to them, and from which they no more avert their eyes now
than they did then or have done at any time since. We have compelled a
treaty of cession; we know in our consciences that it is compelled. We
use it as an instrument and an agency, in conjunction with other
instruments and other agencies of a more formidable and destructive
character, to enforce the cession of Mexican territory, to acquire
territory for new States to be added to this Union. We know, every
intelligent man knows, that there is no stronger desire in the breast of
a Mexican citizen than to retain the territory which belongs to the
republic. We know that the Mexican people will part with it, if part
they must, with regret, with pangs of sorrow. That we know; we know it
is all forced; and therefore, because we know it must be forced, because
we know that (whether the government, which we consider our creature, do
or do not agree to it) the Mexican people will never accede to the terms
of this treaty but through the impulse of absolute necessity, and the
impression made upon them by absolute and irresistible force, therefore
we purpose to overwhelm them with another army. We purpose to raise
another army of ten thousand regulars and twenty thousand volunteers,
and to pour them in and upon the Mexican people.

Now, Sir, I should be happy to agree, notwithstanding all this tocsin,
and all this cry of all the Semproniuses in the land, that _their_
"voices are still for war,"--I should be happy to agree, and
substantially I do agree, to the opinion of the Senator from South
Carolina. I think I have myself uttered the sentiment, within a
fortnight, to the same effect, that, after all, _the war with Mexico is
substantially over_, that there can be no more fighting. In the present
state of things, my opinion is that the people of this country will not
sustain the war. They will not go for its heavy expenses; they will not
find any gratification in putting the bayonet to the throats of the
Mexican people. For my part, I hope the ten regiment bill will never
become a law. Three weeks ago I should have entertained that hope with
the utmost confidence; events instruct me to abate my confidence. I
still _hope_ it will not pass.

And here, I dare say, I shall be called by some a "Mexican Whig." The
man who can stand up here and say that he hopes that what the
administration projects, and the further prosecution of the war with
Mexico requires, may not be carried into effect, must be an enemy to his
country, or what gentlemen have considered the same thing, an enemy to
the President of the United States, and to his administration and his
party. He is a Mexican. Sir, I think very badly of the Mexican
character, high and low, out and out; but names do not terrify me.
Besides, if I have suffered in this respect, if I have rendered myself
subject to the reproaches of these stipendiary presses, these hired
abusers of the motives of public men, I have the honor, on this
occasion, to be in very respectable company. In the reproachful sense of
that term, I don't know a greater Mexican in this body than the
honorable Senator from Michigan, the chairman of the Committee on
Military Affairs.

MR. CASS. Will the gentleman be good enough to explain what sort of
a Mexican I am?

On the resumption of the bill in the Senate the other day, the gentleman
told us that its principal object was to frighten Mexico; it would touch
his humanity too much to hurt her! He would frighten her--

MR. CASS. Does the gentleman affirm that I said that?

Yes; twice.

MR. CASS. No, Sir, I beg your pardon, I did not say it. I did not
say it would touch my humanity to hurt her.

Be it so.

MR. CASS. Will the honorable Senator allow me to repeat my
statement of the object of the bill? I said it was twofold: first,
that it would enable us to prosecute the war, if necessary; and,
second, that it would show Mexico we were prepared to do so; and
thus, by its moral effect, would induce her to ratify the treaty.

The gentleman said, that the principal object of the bill was to
frighten Mexico, and that this would be more humane than to harm her.

MR. CASS. That's true.

Well, Sir, the remarkable characteristic of that speech, that which
makes it so much a Mexican speech, is, that the gentleman spoke it in
the hearing of Mexico, as well as in the hearing of this Senate. We are
accused here, because what we say is heard by Mexico, and Mexico derives
encouragement from what is said here. And yet the honorable member comes
forth and tells Mexico that the principal object of the bill is to
frighten her! The words have passed along the wires; they are on the
Gulf, and are floating away to Vera Cruz; and when they get there, they
will signify to Mexico, "After all, ye good Mexicans, my principal
object is to frighten you; and to the end that you may not be frightened
too much, I have given you this indication of my purpose."

But, Sir, in any view of this case, in any view of the proper policy of
this government, to be pursued according to any man's apprehension and
judgment, where is the necessity for this augmentation, by regiments, of
the military force of the country? I hold in my hand here a note, which
I suppose to be substantially correct, of the present military force of
the United States. I cannot answer for its entire accuracy, but I
believe it to be substantially according to fact. We have twenty-five
regiments of regular troops, of various arms; if full, they would amount
to 28,960 rank and file, and including officers to 30,296 men. These,
with the exception of six or seven hundred men, are now all out of the
United States and in field service in Mexico, or _en route_ to Mexico.
These regiments are not full; casualties and the climate have sadly
reduced their numbers. If the recruiting service were now to yield ten
thousand men, it would not more than fill up these regiments, so that
every brigadier and colonel and captain should have his appropriate and
his full command. Here is a call, then, on the country now for the
enlistment of ten thousand men, to fill up the regiments in the foreign
service of the United States.

I understand, Sir, that there is a report from General Scott; from
General Scott, a man who has performed the most brilliant campaign on
recent military record, a man who has warred against the enemy, warred
against the climate, warred against a thousand unpropitious
circumstances, and has carried the flag of his country to the capital of
the enemy, honorably, proudly, _humanely_, to his own permanent honor,
and the great military credit of his country,--General Scott; and where
is he? At Puebla! at Puebla, undergoing an inquiry before his inferiors
in rank, and other persons without military rank while the high powers
he has exercised, and exercised with so much distinction, are
transferred to another, I do not say to one unworthy of them, but to one
inferior in rank, station, and experience to himself.

But General Scott reports, as I understand, that, in February, there
were twenty thousand regular troops under his command and _en route_,
and we have thirty regiments of volunteers for the war. If full, this
would make thirty-four thousand men, or, including officers, thirty-five
thousand. So that, if the regiments were full, there is at this moment a
number of troops, regular and volunteer, of not less than fifty-five or
sixty thousand men, including recruits on the way. And with these twenty
thousand men in the field, of regular troops, there were also ten
thousand volunteers; making, of regulars and volunteers under General
Scott, thirty thousand men. The Senator from Michigan knows these things
better than I do, but I believe this is very nearly the fact. Now all
these troops are regularly officered; there is no deficiency, in the
line or in the staff, of officers. They are all full. Where there is any
deficiency it consists of men.

Now, Sir, there may be a plausible reason for saying that there is
difficulty in recruiting at home for the supply of deficiency in the
volunteer regiments. It may be said that volunteers choose to enlist
under officers of their own knowledge and selection; they do not incline
to enlist as individual volunteers, to join regiments abroad, under
officers of whom they know nothing. There may be something in that; but
pray what conclusion does it lead to, if not to this, that all these
regiments must moulder away, by casualties or disease, until the
privates are less in number than the officers themselves.

But however that may be with respect to volunteers, in regard to
recruiting for the regular service, in filling up the regiments by pay
and bounties according to existing laws, or new laws, if new ones are
necessary, there is no reason on earth why we should now create five
hundred new officers, for the purpose of getting ten thousand more men.
The officers are already there; in that respect there is no deficiency.
All that is wanted is men, and there is place for the men; and I suppose
no gentleman, here or elsewhere, thinks that recruiting will go on
faster than would be necessary to obtain men to fill up the deficiencies
in the regiments abroad.

But now, Sir, what do we want of a greater force than we have in Mexico?
I am not saying, What do we want of a force greater than we can supply?
but, What is the object of bringing these new regiments into the field?

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