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?