Arguments and speeches of William Maxwell Evarts

ARGUMENTS AND SPEECHES

OF
WILLIAM MAXWELL EVARTS

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ARGUMENTS AND SPEECHES

OF

WILLIAM MAXWELL EVARTS

EDITED, WITH AN INTRODUCTION, BY HIS SON

SHERMAN EVARTS

In Three Volumes
VOL. I

JJeto gorfe

THE MACMILLAN COMPANY
1919

All rights reserved

OBRARTfl

DSIVERSITY OF CALIFOKHIA
DAVIS

Copyright, 1919, by

THE MACMILLAN COMPANY

Set up and printed. Published September, 1919.

TO

THE MEMORY OF MY MOTHER

HELEN MINERVA WARDNER EVARTS

THESE VOLUMES ARE AFFECTIONATELY DEDICATED

CONTENTS OF VOLUME I

PAGE

Introduction ix

PROFESSIONAL ARGUMENTS

I. Brief and Argument in the New York Court of Appeals,
January 24, 1860, in the case of The People of the
State of New York against Jonathan Lemmon.
(The Lemmon Slave Case) 3

II. Address to the jury in summing up for the Govern
ment, in the United States District Court, Southern
District of New York, October 29, 30, 1861, in the
case of The United States against Thomas Harrison
Baker and Others, the Officers and Crew of the
schooner "Savannah," on the charge of Piracy.
(The Savannah Privateers) 91

III. Argument in the Supreme Court of the United States

on behalf of the Government, February, 1863, in the
case of Peter Miller et al., Claimants of the barque
"Hiawatha" against The United States, and other
cases. (The Prize Cases) 214

IV. Argument in the Supreme Court of the United States,

February, 1866, in the case of Churchill against the
City of Utica. (Bank Tax Case) 295

V. Argument in defence of President Andrew Johnson,
April-May, 1868, before the Senate of the United
States, sitting as a Court, in the Impeachment Trial
of the President 340

VI. Argument in the Supreme Court of the United States,
for the Government, December, 1868, in the case of
Hepburn against Griswold. (Legal Tender Case) . 526
vii

viii CONTENTS

VII. Argument before the International Tribunal at
Geneva, Switzerland, on behalf of The United
States, under the Treaty of Washington, August,
1872. (The Alabama Claims) 582

VIII. Argument before the Mixed Commission on British
and American claims under the Treaty of Washing
ton, August, 1873, for the claimants in the case of
S. Isaac Campbell & Co., owners of the cargo of the
Barque "Springbok," against The United States.
(The Springbok Case) 665

INTRODUCTION

It is related of John Bright that when consulted about his
biography he would turn the subject aside by saying, "My
life is in my speeches." That his life was in his speeches
may be said with much truth of Mr. Evarts. His position
before the public of his day was, to be sure, in no sense upon
a parallel with that of the great tribune of the English
people, and the traditional environment, the training and
education of the two men were wholly dissimilar. But the
chief reminders of Mr. Evarts to-day are his speeches.
Through them can best be recalled the man, whether they
were the arguments of the advocate, or political speeches, or
whether they appear in the form of elaborate orations at im
portant commemorations, or in the lighter vein of occasional
addresses.

At the very outset of his career Mr. Evarts leaped, at one
bound, into prominence as an advocate in the profession in
which his acknowledged supremacy formed, perhaps, the
chief title to his fame. Just past twenty-four years old,
the duty was by his senior associates assigned to him, as
junior counsel for the defendant, of opening to the jury the
case of the defense in the trial of the notorious forger, Mon
roe Edwards. The opportunities offered in this cause
ctlebre for a young man to win his spurs were unusual but
manifest. That so important a part in the trial was given
him by his elder brethren at the bar, chief among whom was
Senator Crittenden of Kentucky, speaks well for the way
in which he had acquitted himself in the earlier preparation
and conduct of the case, a great part of which had fallen
upon his shoulders. Expecting to occupy but a few min
utes in his address to the jury, he spoke for an hour and a
half, eliciting at the close a ripple of applause from the
crowded audience that public interest in the cause had

ix

x SPEECHES OF WILLIAM MAXWELL EVARTS

brought to the court room. The applause of course was
suppressed by the Court. It would have been no more than
natural for any young man, however modest, to have felt
at least a passing pleasure in so flattering a tribute, but what
made a deep impression upon Mr. Evarts was the expression
of enthusiastic encouragement that came from his dis
tinguished associate. Many years after, he thus speaks, in
conversation with one of Senator Crittenden's daughters, as
related in the Life of Crittenden, of their association in this
cause: "I shall never forget that trial," said Mr. Evarts, "in
connection with your father. I was a young man on the
threshold of my professional career, and your father's repu
tation was firmly and widely established as a lawyer and a
statesman. His cordial manner throughout the trial is most
gratefully remembered by me, and at its close he asked
me to take a walk with him. During the walk he took
a slight review of the trial, complimented me upon my
course during its progress and the ability he was pleased
to think I had manifested, and in conclusion, grasping my
hand with warmth, he said, 'Allow me to congratulate and
encourage you on the course in life you have adopted. I
assure you that the highest honors of the profession are
within your grasp, and with perseverance you may expect
to attain them.5 These words from Mr. Crittenden would
have gratified the pride of any young lawyer and given him
new strength for the struggles of his profession. I can truly
say they have been of the greatest value to me through life.
When I came to Washington to take part in the defense
of President Johnson, the associations of the Senate Chamber
recalled the memory of your father's words and renewed my
gratitude for his generous encouragement of my early hopes."
When he recalled these words of Senator Crittenden the
impeachment trial of the President, in which he had taken
a leading part for the defense, had but just closed in a victory
for the President. The succeeding ten years held yet in

INTRODUCTION xi

store for Mr. Evarts a chief participation in the great
Arbitration at Geneva, the Contest for the Presidency be
fore the Electoral Commission, and that cause cSlebre, which
assumed in the imaginations and feeling of the whole coun
try the proportions of a great public cause, — the famous
trial of Tilton vs. Beecher. The history of the bar in this
country finds no parallel in professional public employments
such as these falling to the lot of one man.

In reviewing his own career he was wont to speak of the
turn of events in the country's history that presented during
his active professional life so many cases of far-reaching
public importance and interest. In this sense fortune
favored him. It is not for the writer to discuss the per
formance, by Mr. Evarts, of the tasks thus set for him; but
this may be said: that each honorable and responsible em
ployment fell to him as the natural consequence of his ade
quate discharge of that which had preceded.

If we were to look for the turning point in his career at
which he received a general and permanent recognition from
the profession and the public as a learned lawyer as well as a
brilliant and skilful advocate, we should find it in his ap
pearance before the New York Court of Appeals in 1860, rep
resenting the State of New York in the Lemmon Slave Case.
His title to knighthood was then established, and the pro
fession looked forward to him as the future leader and cham
pion to take the place of his elders when they were gone.
His former chief, Mr. J. Prescott Hall, thus writes: "I
have read your 'Lemmon' speech through twice and think
it the best you ever made and perhaps the best you ever will
make; but you must try to beat yourself."

In the Supreme Court of the United States he was con
stantly employed in private causes of importance and often
retained by the Government in the paramount questions
that the exigencies of our Civil War brought for solution
before that great tribunal.

xii SPEECHES OF WILLIAM MAXWELL EVARTS

As a lawyer, Mr. Evarts's extraordinary intellectual gifts
enabled him to grasp, with a readiness and power of ab
sorption and assimilation that excited the wonder and ad
miration of his contemporaries, all the essential and salient
points of the most complicated cases upon the first interview
with his client or his brother lawyer. Mr. Southmayd,* for
many years his partner, himself a very great lawyer of that
generation, was wont to speak of this power of apprehension,
which would mentally anticipate and complete the situation
before the narration of the facts was finished. The case had
by that time been accurately discriminated and some great
principle of law unerringly applied. His other distinguished
partner, Mr. Joseph H. Choate, whose name completed the
title as it added to the fame of the great firm of Evarts,
Southmayd & Choate, has spoken of him as "the quickest
witted man I ever met on either side the water."

The writer has heard Mr. Evarts speak of how he would go
into a trial with Mr. Choate when the only opportunity he
had had of any acquaintance with the case was in the walk
from their office to the court room. In the tremendous
pressure of a busy lawyer's laborious life those few moments
were all that could be spared to the consideration of ordinary
lawsuits, where the detailed preparation for trial had fallen
of course into competent hands. But those few moments
seem to have sufficed for effective service to his junior at the
trial.

He treated all his cases in a very large way; he made
luminous the philosophy and science of jurisprudence in its
application to the case in hand; he lifted the cause to a very
high plane, and notably was this true in the Johnson im
peachment and the Beecher trial; by remarkable clearness of
statement he disentangled the greatest confusion of facts and
brought them into harmony with the fundamental principles
upon which the contention of his cause rested; by apt al-

* Charles F. Southmayd, 1824-1911.

INTRODUCTION xiii

lusion and illustration, by anecdote and often by a play of
humor and fancy, his presentation of the driest case inter
ested the Court, as by his forceful eloquence he drove home
the principles he advocated; while his unfailing courtesy
and consideration, wholly without the taint of assumed
superiority, won the admiration and affection of Bench and
Bar.

But hand in hand with these gifts went the instinct for
thoroughness — thoroughness of preparation, thoroughness
of presentation. It was not in his nature to rest content with
one cogent, irrefragable point and by reiteration in various
forms and from varying points of view place his dependence
upon that and that alone; but, regardful of the maxim,
"many men, many minds," he sought to convince by every
honorable and fair suggestion of reason that might find
lodgment and have a persuasive influence with the tribunal
he addressed. Mr. O' Conor,* more often opposed to,
than associated with, Mr. Evarts, once said to a would-be
client, whose retainer he was for some reason unable to
accept, "Go to Mr. Evarts; he will bring forward every
possible point, present every possible argument the case ad
mits of."

Allusion to this trait recalls to the writer a characteristic
remark of Mr. Evarts while he was preparing to argue in the
Court of Appeals of New York the case in which he made his
last appearance in any court. It was not unusual to see
him, towards the close of a busy day of concentrated labor
over a brief or an opinion, come from his own room and,
going in to see one of his partners or sometimes sitting in the
general office, enter into a conversational discussion of the
subject that was on his mind. In the course of such a dis
cussion over this case (Post vs. Weil, now cited as a leading
case) Mr. Evarts said, "Well, I have seven points, one for
each judge."

* Charles O' Conor, 1804-1884.

xiv SPEECHES OF WILLIAM MAXWELL EVARTS

Thus, too, in the trial of cases, some bit of evidence that
might seem trifling and wholly negligible, coming unob
served or unheeded into the testimony, was in his final argu
ment turned to great and telling effect. He seized upon it
at once and discerned clearly its bearing on the main issue;
and in his final presentation its effect was all the more force
ful for being skilfully brought from its hiding place in the
great mass of testimony and its true character displayed in
the bright light of his clear reason.

His oral arguments were as thorough as his preparation of
causes. His words of advice to a young lawyer, "Don't be
content with a 'good enough* argument," illustrate his own
rule in the presentation of his causes. Thus in several cases,
the subject matter of which has lost all shadow of present day
interest, his arguments remain not only as models to emulate,
though difficult of attainment, but in themselves of interest
and instruction. In making a selection, therefore, of the
speeches of Mr. Evarts which it might seem proper to in
clude within the covers of one book, we have not felt that, in
the case of his legal arguments, any more restricted rule of
choice need apply than that which we have endeavored to
follow in those of another character. An inclusion of those
of historic interest should not exclude all of those, the interest
in which may be confined to the profession.

But Mr. Evarts was more than a lawyer. With what may
be regarded as an hereditary instinct for public service he
very early manifested a zealous interest in political affairs.
He was a devoted admirer and disciple of Mr. Webster, and
to the last one of his ablest defenders. In a long forgotten
weekly publication called "The New World," under the
editorship of Park Benjamin, there appear in the issues of
October 2 and October 16, 1841, two political articles from
Mr. Evarts's pen entitled respectively, "Mr. Webster's
Position " and " Mr. Tyler and The Whig Party." The first
was in answer to the attacks upon Mr. Webster from a large

INTRODUCTION xv

body of the Whigs because of his remaining as Secretary of
State in Tyler's Cabinet, and the second a review of the
general political situation and of President Tyler's adequacy
to meet it, as it was affected by the breaking apart of the
two elements of the party. For this disruption of the party,
the elevation to the Presidency of Mr. Tyler, through the
death of President William Henry Harrison, was largely
responsible.

These articles, among the earliest of the young lawyer's
essays at political discussion and interesting solely on this
account, may appropriately find a place in this collection.
Their style reminds one of the Letters of Junius, and one may
safely conjecture a conscious or unconscious imitation, as a
model, of this unknown writer. His own comments on these
early efforts throw an interesting side light on their produc
tion and their effect so far as it concerned him. "I have
sent you a copy, " he writes to his friend, Richard H. Dana,
Jr., under date of October 2, 1841, "of this week's 'New
World ' as containing for its * leader ' an article by me — I am
tired of hearing ' Mr. Webster's Position' spoken of in the
tone used in Whig circles here, and have written the paper
con amore. It is as long as sixteen pages of common pam
phleteering and was written after 8 o'clock one evening and
in the printer's hands next morning at 7, so that it can hardly
be deemed an elaborate production. As I am proposing soon
to make my pen venal, I am writing now for practice and
facility and am not altogether displeased with this first at
tempt. If your own judgment should be favorable, suppose
you do me the honor to submit it to your father's indulgent
opinion."

Again, on October 12, 1841, he writes, "I am obliged to
your father for his friendly criticism on my fugitive article.
. . . This week I have promised an article on Tyler, but
as it must be ready early to-morrow morning and is as yet
unwritten I am doubtful whether it appears." Whatever

xvi SPEECHES OF WILLIAM MAXWELL EVARTS

may have been the judgment of the elder Dana, we may well
suppose it to have been for the most part literary. How
this young man's efforts impressed others, he with modest
pride discloses to his friend Dana, when in January, 1842, he
writes: "Professional business has claimed so much of my
attention that my 'political pen' (which Professor Felton
wrote Benjamin was one of 'the most powerful ones in the
country') has been idle. During my late visit to Washing
ton, I had the honor of an interview (at his desire) with his Ex
cellency the Secretary of State, who, as Mr. Choate informed
me, was delighted with my article. I am more amused than
seriously gratified at the results of my aimless and casual
efforts." "His Excellency the Secretary of State" was of
course Daniel Webster and Mr. Choate was Rufus Choate,
then occupying Mr. Webster's seat in the Senate.

Mr. Evarts's "political pen" remained idle for the rest of
his life; but in every discussion of public affairs his voice
was heard where it might affect the course of public opinion.

During the period following the Compromise Measures
of 1850 and up to the election of Lincoln there was one
dominant subject of either public or private discussion. We
refer, of course, to the subject of slavery, its existence in
the Southern States, the supremacy of its advocates in the
councils of the Government, and their efforts to extend
the institution throughout the whole country as a part of the
national policy.

At the time of the passage of the Compromise measures,
Mr. Evarts, then thirty-two years old, had attained such
prominence that, at the great Union meeting at Castle
Garden in New York, he was one of the speakers. The meet
ing was called together to sustain before the people the policy
of the Government in the Compromise measures, and Mr.
Evarts spoke in maintenance of the Constitutionality of the
Fugitive Slave Law and in earnest appeal for obedience to
its provisions by the people of the Northern States. This

INTRODUCTION

"Castle Garden" speech, his first recorded public utterance,
was, in a narrower sphere, as much a subject of discussion,
as it bore upon his attitude towards the burning question of
the day, as that much debated seventh of March speech of
his great exemplar in the Senate. In the years that followed,
the Castle Garden speech was brought forward against Mr.
Evarts as evidence of a leaning in favor of slavery not to be
expected and much to be deplored in one of his antecedents.

The public mind could not reconcile an abhorrence of
slavery as an institution with adherence to the Constitution
and the Law, that recognized the institution as a necessary
evil and supported the rights, under the Constitution, of slave
owners, in the localities where the system of slavery pre
vailed. No man was ever more hostile to slavery than Mr.
Evarts, throughout his life, and it perhaps was fortunate for
a final estimate that the Castle Garden speech, unlike the
seventh of March speech, was at the beginning and not at
the end of a career. In the heated state of the public mind
and conscience over this all-absorbing question of slavery it
was perhaps natural that everyone who stood for the pres
ervation of the Union and the Constitution and the sanctity
of law should be, though illogically and unjustly, suspected
of a friendly complacency towards the institution of slavery
or at least of indifference to its evils. But any doubt or
confused notion of Mr. Evarts' s attitude towards slavery
was set at rest when he gave one fourth of his property to
the Emigrant Aid Company in the "Kansas Crusade,"
when he spoke at the Broadway Tabernacle in 1856, and
when he made his argument in the Lemmon Slave Case.

The circumstances of Mr. Evarts's contribution to the
cause of the Emigrant Aid Company is thus related by Mr.
Eli Thayer in an account of a meeting of gentlemen at a
private house in New York in 1855: "After my address,
which occupied a little more than an hour, a young man,
tall and thin, arose and began to speak as follows: 'Ever

xviii SPEECHES OF WILLIAM MAXWELL EVARTS

since my Castle Garden speech, you know I have been called
a Hunker Whig. Now, what reason you had to suppose
that such a man would care whether slavery were extended
or restricted I do not know. Therefore I do not know your
reasons for inviting me to attend this meeting. But you
did invite me and I have come. I am glad that I am here
and I thank you for calling me. I have heard many speeches,
on many occasions, upon the slavery question; but never
until now have I listened to any practical elucidation of the
subject. Like thousands of others I have been waiting for
an opportunity to contend successfully against slavery with
out violating the laws or sacrificing the Constitution and the
Union. Such an opportunity is now presented. I rejoice
in it and shall embrace it. Now, though I am called a
Hunker Whig and though I am poor, for I am not worth four
thousand dollars, I joyfully give my cheque to the Emigrant
Aid Company for one thousand dollars.' This speaker was
William M. Evarts." *

No method of selection should properly exclude these
earliest political speeches. They are as important and as
interesting in their representative significance as those more
elaborate productions when Mr. Evarts was the sole speaker
of the evening before a crowded audience in Cooper Union,
upon the invitation of prominent citizens of New York to
give his views in public on the issues of the day.

Mr. Evarts's repute as a man of public spirit, as a scholar
and an orator soon brought to him invitations to deliver
addresses, in the language of the day, "orations," at im
portant celebrations. Of these the first was delivered in
1853 at the centenary of the Linonian Society at Yale,
the last in 1888 at the dedication at Auburn of the statue of
his political friend and leader, William H. Seward.

Present day readers need to be reminded of the fame of
the great debating societies at Yale College that flourished

* A History of the Kansas Crusade, by Eli Thayer, p. 203.

INTRODUCTION xix

from the latter part of the eighteenth to the middle of the
nineteenth century. They furnished to the youth of those
generations who sought their education at Yale College a
nursery and training ground for the development of those
moral and intellectual faculties that best adapt a man to a
position of influence and power in the community in which
his lot is thrown. Doubtless, in the fuller and more com
plex life of our universities to-day there may be found,
among the student activities, organizations that take the
place and have the influence of these old debating societies.
But it was with keen and unfeigned regret at the time that
the older graduates of Yale saw the uninterrupted decline
and final discontinuance of these institutions, beyond the
power of all efforts to revive them. The place they filled
in the college life of his day, and the purposes they were
calculated to accomplish were thus described by Mr. Evarts,
in this oration on "Public Life," in the following passage:

"While, then, we greet the college as the gracious mother
of our intellectual life, from whose full breasts we drew the
nutriment of learning, it is in this LINONIAN SOCIETY that
we, who have met for this centennial commemoration, found
the playground and arena, the palestra, the forum, the
agora, in which the new born vigor was exercised and trained.
It was here that the faculties acquired were first applied,
and here had the prelude and preparation for the public
labors and conflicts of real life."

These commemorative addresses, six in number, include,
besides those mentioned above, the New England Society
oration, entitled "The Heritage of the Pilgrims," delivered
in 1854 before the New England Society of New York, his
Eulogy on Chief Justice Chase delivered upon the invitation
of the Alumni of Dartmouth College at the commencement
of 1874, his centennial oration delivered at Philadelphia,
July 4, 1876, and his oration at Newburgh, New York, in
1883, on the invitation of the joint committee of Congress,

xx SPEECHES OF WILLIAM MAXWELL EVARTS

at the centennial of Washington's Headquarters at New-
burgh. Thus the honor was awarded to him of delivering
the oration at the last, as well as at the first, of the series of
national centennial celebrations of the Revolutionary period.

These formal addresses were not mere exhibitions of
rhetorical phrase making, but scholarly discourses, pregnant
with the philosophy of history and of politics, clothed in
stately English and inspired with a genuine love of his country
and reverence for its institutions. .

Through a rare and very happy combination of faculties
the fame of Mr. Evarts as an advocate and an orator was
matched by his reputation as a wit. There is hardly a book
of contemporaneous biography or reminiscences that does
not contain some bright saying, some mot, some witticism of
Mr. Evarts, and there were not infrequently attributed to
him, as is always the case with such reputations, jests that
on their face bore the stamp of counterfeit. With this
gift, combined with a merry and spontaneous humor, he
always found a welcome at public dinners either as presiding
or as one of the principal speakers. Mr. Carter,* himself a
great lawyer and orator, in a graceful and appreciative trib
ute to Mr. Evarts, thus spoke of this feature of his career :

"In another field — and one of no small consequence — he
was facile princeps; I mean that of after-dinner speaking.
He may be said to have created a revolution in that art.
His brilliant wit, his command of language, his large ac
quaintance with men and things and his keen sense of humor
made him a most captivating speaker on such occasions.
And this seemed so easy in him that many others thought it
was really easy, and he had many imitators, who, however,
were not often so successful."

An appreciative editorial in one of the leading journals at
the time of Mr. Evarts's death thus speaks of these social
gifts:

* James Coolidge Carter, 1827-1905.

INTRODUCTION xxi

"He was not only a great lawyer, an able statesman and a
great character, but he was a unique New Yorker. His was
the wit, diamond-pointed, that sparkled without wounding.
His was the humor as debonair as dry, and as genial as subtle.
His was the power of epigram, antithesis or characterization
that gave to thought the light for its entrance into the mind,
and to fancy the barb that winged its course to the recesses of
the imagination and to the centre of the heart. His was the
anecdotal power that united the finality of culture with the
simplicity of experience, and which gilded conversation with
the sheen of gold, and gave to it the charm that made listen
ing a luxury, enjoyment contagious, imitation a failure,
emulation a temerity and admiration spontaneous. And all
this concurred with an involution and circumlocution of
oratorical style that, whether natural or acquired, was alike
the envy and despair of colleagues or of rivals. " *

Of Mr. Evarts's "style" to which allusion is made by this
sympathetic writer it may be said that as the printed page
diminishes the force of the spoken word as uttered, so it
magnifies into a fault a method and form of expression that
was most effective as employed by Mr. Evarts. It is the
spoken language of the man, aptly and often finely expressive
of the thought behind it, that is to be found in the pages that
follow. In those productions, which Mr. Evarts was wont
to call his "set orations," and which were delivered from
manuscript, where there was the opportunity for careful and
critical preparation, is to be found the best and truest ex
amples of his "style," which may or may not meet the re
quirements of the best literary canons. One may find in the
quaint words of Fuller where he speaks of Richard Hooker,
the "judicious" Hooker, an apt description of Mr. Evarts's
style. The entertaining theologian Fuller writes thus:
"His style was long and pithy, driving on a whole flock of
several clauses, before he came to the close of a sentence; so

*St. Clair McKelway, in the/Brooklyn Eagle,'*

xxii SPEECHES OF WILLIAM MAXWELL EVARTS

that when the copiousness of his style met not with propor
tionable capacity in his auditors, it was unjustly censured for
' perplexed, tedious and obscure/55 *

Let us record here also the witty retort of Mr. Evarts to
one who in good natured banter had twitted him on his long
sentences. In 1879, being then Secretary of State, he pre
sided at the public dinner in New York tendered to Mr.
Thomas Bailey Potter, one of the few members of parliament
who had been, in England, staunch supporters of the north
ern side during the Civil War. Mr. Samuel D. Babcock,
then president of the New York Chamber of Commerce, in
closing his speech at the dinner, had thus expressed himself:
"Let us hope, gentlemen, that if differences should arise in
the future between Great Britain and the United States,
men will be found like Mr. Potter and Secretary Evarts, who*
after a calm and dispassionate discussion, clothed though it be
with sentences as long as the English language can supply,
will arrive at an amicable settlement.55

Mr. Evarts, on rising to introduce the next speaker,
began by saying that the English was a language the true
efficacy of which the gentleman who last sat down did not
seem to appreciate. Not only was it fine in quality but in
quantity it was absolutely marvelous. What wonder then
that a public servant should try to check the volubility of
his countrymen by consuming large portions of it himself.
He then added, "I don5t wish that our guest should carry
away with him a wrong impression in regard to this alleged
fault. The only persons in this country who are opposed to
long sentences are the criminal classes.55

Mr. Evarts's speeches, as we have seen, quite naturally
classify themselves under these four divisions: professional
arguments, political speeches, commemorative orations and
occasional addresses, including in the last his after-dinner
speeches. Any effort to make a selection must meet the

* Fuller's Church History, IX, s. vii, 49, 53.

INTRODUCTION xxiii

hazard of omitting or including one or more as to which, for
this or that consideration, another's judgment would apply
a different rule. Many motives have had their influence
upon the result and if the general and principal purpose of
the publication is amply met it will suffer no serious abate
ment by any incidental errors of choice in minor instances.
These arguments and speeches are gathered from many
scattered sources, from newspapers and pamphlets and from
separate publications of more permanent form, and have
been thus brought together that they may be readily acces
sible, that they may serve to preserve the memory of Mr.
Evarts and that they may be in a permanent form of pres
ervation themselves. The writer makes here his grateful
acknowledgment for valuable aid received in the preparation
of this work from Mrs. Graham B. Elaine, a granddaughter
of Mr. Evarts.

We have refrained in these introductory words from any
strictly biographical statement of Mr. Evarts's career, con
tent with such suggestive allusions as occur in considering his
many and diversified attainments. He was first and last
the great lawyer and advocate; one who, as Pericles for
Athens, had for his profession a "lover's enthusiasm." He
found in its active and large employments ample scope for
the widest exercise of his intellectual powers, and opportunity
to exert a great moral influence in his day and generation,
while the recognized relations that existed between the pro
fession and public discussion and public action afforded the
occasion for an active and constant participation in this
wider field of influence. It was within the ranks of the pro
fession that his close friendships were to be found, and from
its ranks came the most informed and sincerest appreciation.
If we look for some expression from him that may exhibit
his personal relations, his personal feelings, towards the
members of the profession that he loved and reverenced, we
may find it in the closing words of his response at the public

xxiv SPEECHES OF WILLIAM MAXWELL EVARTS

dinner tendered him by the Bar of New York in 1868, at
which Mr. O' Conor presided. In concluding his speech on
this occasion he says:

"And, now, Mr. President, closing these observations,
desultory and far too long, I beg to be permitted to say a
word or two about the good fortune that has attended my life.
I do not know that in the thirty years which have almost
elapsed since, as a student, fl came to your city, any man has
ever done me an unkindness or an injustice; and if I could
feel that I might say the same of my own conduct, — that I
have never done an unkindness or an injustice to a brother
in our profession — if I could say this, I should feel that I had
in some degree repaid the great debt which I owe to you all.

"But it seems to me as if I were indebted to others from the
beginning to the end. I do not speak of how much I owe
to my masters in the law school, Story and Greenleaf — but I
may be permitted to say that no man can owe a greater debt
to a teacher, a master, an example and a kind friend, than I
owe to Daniel Lord, and I may be permitted to say, too, that
no young man can be better aided in the early days of his
profession than I was by Prescott Hall, my master and my
friend. And my partners still about me — my partners, never
changed, but only added to in twenty-eight years of profes
sional life — they are present at this table, and your knowl
edge of them forbids and makes it unnecessary for me to speak
of them. I recognize the debt to all — the constant obliga
tion; and when at last the seal shall be set to my life (until
which we are admonished to call no man fortunate) I may
well be deemed fortunate if any law student, any young
lawyer or any dying veteran of the profession shall feel even
to a moderate degree toward me as I do toward these my
masters and my friends. "

We venture to add the answer to his wish in the sincere
and fervent words of that other great lawyer, Mr. Carter,
when he said of Mr, Everts, "In his death a great light has

INTRODUCTION xxv

been extinguished, — no, not altogether extinguished. It
will long continue to shine in his many noble utterances which
history and literature will preserve; in the memory of the
patriotic services which he rendered to his country; in the
affectionate regard of a thousand friends, and in the bright
example he set as a citizen, statesman and man."

SHERMAN EVARTS.
Windsor, Vermont.
February 6, 1918.

PROFESSIONAL ARGUMENTS

BRIEF AND ARGUMENT IN THE NEW YORK
COURT OF APPEALS IN THE LEMMON SLAVE
CASE

NOTE

In November, 1852, Jonathan Lemmon and Juliet Lemmon, his
wife, citizens and residents of the State of Virginia, came to New
York City by boat from Norfolk, Virginia, bringing with them
eight negroes, who were in Virginia held as slaves and as the prop
erty of Mrs. Lemmon.

Their ultimate destination was Texas where slavery was an in
stitution recognized by the laws of that State. It was their pur
pose to remain in the City of New York only for the short interval
between their arrival and the departure from that port of a boat
for Texas, upon which it was their intention to embark in the com
pletion of their journey. They lodged their slaves in a house in
Carlisle Street, New York, where they were discovered by a negro
named Louis Napoleon. He thereupon presented to the Hon.
Elijah Paine, a judge of the Superior Court of the City of New
York, his petition for a writ of Habeas Corpus, for the production
before him of the eight negroes, that the legality of their detention
under restraint might be judicially determined. The writ was
issued November 6, 1852, and on the return of the writ an answer
was interposed setting up the ownership of the eight negroes by
Mrs. Lemmon under the laws of Virginia and that their sojourn in
New York was in transitu merely, on the way to another slavehold-
ing State, with no purpose or intent of remaining within the juris
diction of the State of New York any longer than the exigencies of
the journey from Virginia to Texas by the route taken required.
To this return to the writ the petitioner interposed a general demur
rer, stating that the facts set forth did not constitute a legal cause
for the restraint of the liberty of the negroes.

Upon the questions of law thus raised the case was heard. E.
D. Culver and John Jay appeared for the petitioner, while H. D.
Lapaugh and Henry L, Clinton represented the respondent. Judge

4 SPEECHES OF WILLIAM MAXWELL EVARTS

Paine decided the case in favor of the petitioner and by final order,
dated November 13, 1852, gave the negroes their freedom. The
case is fully reported in New York Superior Court Reports, 5 Sand-
ford, 681.

Immediately upon the rendering of this decision the respondent
sued out a writ of certiorari to bring the case up for review to the
general term of the Supreme Court.

The decision of Judge Paine excited universal comment in tones
of admiration or execration as the sympathies and judgments of
people inclined to one side or the other. The Governor of Vir
ginia, by authority of its Legislature, directed the Attorney-General
of the State to prosecute the appeal in connection with such counsel
as he might employ. Under this authority Mr. Charles O'Conor
was engaged as counsel in behalf of the State of Virginia. In 1855,
under similar action of the Legislature of New York, the Governor
of that State appointed E. D. Culver and Joseph Blunt as counsel
to be associated with Ogden Hoffman, then Attorney-General of
New York, to defend the interests of the State on the appeal pros
ecuted by the State of Virginia. On the death of Mr. Hoffman in
1856, the Governor appointed Mr. Evarts, in his place, to represent
the State of New York on the appeal. The case was argued before
the general term of the Supreme Court in December, 1857, and the
decision of the Court below was affirmed, Justice Roosevelt dissent
ing. The case is reported in New York Supreme Court Reports,
26 Barbour, 270. An appeal was taken to the Court of Appeals.
The case was argued in that Court on January 24, 1860, and follow
ing days, by Mr. O'Conor for the appellants, and by Mr. Joseph
Blunt and Mr. Evarts for the respondent. In March, 1860,
the Court affirmed the decisions below. Opinions were delivered
for affirmance by Judge Denio and Mr. Justice Wright, Judge
Davies and Justices Bacon and Welles concurring. Chief Judge
Comstock and Mr. Justice Clerke dissented, an opinion being de
livered by Mr. Justice Clerke for reversal of the Supreme Court.
Judge Selden expressed no opinion. The case is reported in 20
New York Court of Appeals Reports, page 562. Mr. Evarts sub
mitted the following points and delivered the argument that fol
lows.

THE LEMMON SLAVE j CASE
POINTS*

FIRST POINT. — The writ of Habeas Corpus belongs of right
to every person restrained of liberty within this State, under
any pretense whatsoever, unless by certain judicial process of
Federal or State authority.

2 Rev. Stat., p. 563, No. 21.

This right is absolute, (1) against legislative invasion, and
(2) against judicial discretion.
Cons., Art. 1, No. 4.
2 Rev. Stat., p. 565, No. 31.

In behalf of a human being, restrained of liberty within
this State, the writ, by a legal necessity, must issue.

The office of the writ is to enlarge the person in whose
behalf it issues, unless legal cause be shown for the restraint
of liberty or its continuation; and enlargement of liberty,
unless such cause to the contrary be shown, flows from the
writ by the same legal necessity that required the writ to be
issued.

1 Rev. Stat. 567, No. 39.

SECOND POINT. — The whole question of the case, then, is,
does the relation of slave-owner and slave, which subsisted
in Virginia between Mrs. Lemmon and these persons while
there, attend upon them while commorant within this
State, in the course of travel from Virginia to Texas, so as to
furnish legal cause for the restraint of liberty complained of,
and so as to compel the authority and power of this State to
sanction and maintain such restraint of liberty.

* On the argument of the case Mr. Evarts submitted these Points, stating
that they were intended to be taken in connection with those of his associate,
Mr. Blunt, and that he had not thought it necessary to repeat the citations to
be found on Mr. Blunt's points, and on which they both relied.

5

6 SPEECHES OF WILLIAM MAXWELL EVARTS

I. Legal cause of restraint can be none other than an
authority to maintain the restraint which has the force of
law within this State.

Nothing has, or can claim, the authority of law within this
State, unless it proceeds —

(A) From the sovereignty of the State, and is found in the
Constitution or Statutes of the State, or in its unwritten
common (or customary) law; or —

(B) From the Federal Government, whose Constitution
and Statutes have the force of law within this State.

So far as the Law of Nations has force within this State,
and so far as "by comity," the laws of other sovereignties
have force within this State, they derive their efficacy, not
from their own vigor, but by administration as a part of the
law of this State.

Story Confl. Laws, Nos. 18, 20, 23, 25, 29, 33, 35, 37, 38.

Bank of Augusta vs. Earle, 13 Pet. 519, 589.

Dalrymple vs. Dalrymple, 2 Hagg. Consist. Rep. 59.

Dred Scott vs. Sanford, 19 How. 460-1, 486-7.

II. The Constitution of the United States and the Federal
Statutes give no law on the subject.

The Federal Constitution and legislation under it have, in
principle and theory, no concern with the domestic institu
tions, the social basis, the social relations, the civil condi
tions, which obtain within the several States.

The actual exceptions are special and limited, and prove
the rule. They are —

1. A reference to the civil conditions obtaining within the
States, to furnish an artificial enumeration of persons as the
basis of Federal Representation and direct taxation, distribu-
tively between the States.

2. A reference to the political rights of suffrage within the
States as, respectively, supplying the basis of the Federal
suffrage therein.

THE LEMMON SLAVE CASE 7

3. A provision securing to the citizens of every State
within every other the privileges and immunities (whatever
they may be) accorded in each to its own citizens.

4. A provision preventing the laws or regulations of any
State governing the civil condition of persons within it, from
operating upon the condition of persons "held to service or
labor in one State, under the laws thereof, escaping into
another."

None of these provisions, in terms or by any intendment,
support the right of the slave-owner in his own State or in
any other State, except the last. This, by its terms, is
limited to its special case, and necessarily excludes Federal
intervention in every other.

Const. U. S., Art. 1, sec. 2, subd. 1 and 3.

Art. IV, sec. 2, subd. 1 and 3.

Laws of Slave States, and of Free States, on Slavery.

Ex parte Simmons, 4 W. C. C. R. 396.

Jones vs. Van Zandt, 2 McLean, 597.

Groves vs. Slaughter, 15 Peters, 506, 508-510.

Prigg vs. Perm, 16 Peters, 611-612, 622-3-5.

Strader vs. Graham, 10 How. 82, 93.

New York vs. Miln, 11 Peters, 136.

Dred Scott vs. Sanford, 19 How. 393.

Ch. J. 452.

Nelson, J. 459, 461.

Campbell, J. 508-509, 516-17.

The clauses of the Constitution of the United States
touching the commercial power of the Federal Government
have no effect, directly or indirectly, upon the question under
consideration.

Cons. U. S., Art. 1, sec. 8, subd. 3.

Cons. U. S., Art. 1, sec. 9, subd. 1, 5.

The Passenger Cases, 7 How. 283.

Groves vs. Slaughter, ut supra.

New York vs. Miln, ut supra.

8 SPEECHES OF WILLIAM MAXWELL EVARTS

III. The common law of this State permits the existence
of slavery in no case within its limits.

Cons., Art. 1, No. 17.

Sommersetts Case, 20 How. St. Trials, 79.

Knight vs. Wedderburn, Id. No. 2.

Forbes vs. Cochrane, 2 B. & C. 448.

Shanley vs. Harvey, % Eden, 126.

The Slave Grace, 2 Hagg. Adm. 118, 104.

Story Confl. Laws, No. 96.

Co. Litt. 124 b.

IV. The statute law of this State effects a universal pro
scription and prohibition of the condition of slavery within
the limits of the State.

1 R. St., p. 656, No. 1. — "No person held as a slave shall
be imported, introduced or brought into this State, on any
pretence whatever, except in the cases hereinafter specified.
Every such person shall be free. Every person held as a
slave, who hath been introduced or brought in this State
contrary to the laws in force at the time, shall be free."

No. 16. — "Every person born within this State, whether
white or colored, is free; every person who shall hereafter be
born within the State, shall be free; and every person brought
into this State as a slave, except as authorized by this title,
shall be free."

2 R. St., p. 664, No. 28.

Laws 1857, p. 797.

Dred Scott vs. Sanford, 19 How. 591-595.

THIRD POINT. — It remains only to be considered whether,
under the principle of the Law of Nations, as governing the
intercourse of friendly States, and as adopted and incor
porated into the administration of our municipal law, comity
requires the recognition and support of the relation of slave
owner and slave between strangers passing through our
territory, notwithstanding the absolute policy and compre-

THE LEMMON SLAVE CASE

hensive legislation which prohibit that relation and render
the civil relation of slavery impossible in our own society.

The comity, it is to be observed, under inquiry, is (1) of
the State and not of the Court, which latter has no authority
to exercise comity in behalf of the State, but only a judicial
power of determining whether the main policy and actual
legislation of the State exhibit the comity inquired of; and
(2) whether the comity extends to yielding the affirmative
aid of the State to maintain the mastery of the slave-owner
and the subjection of the slave.

Story Confl. Laws, No. 38.

Bk. Augusta vs. Earle, 13 Pet. 589.

Dred Scott vs. Sanford, 19 How. 591.

I. The principles, policy, sentiments, public reason and
conscience, and authoritative will of the State sovereignty,
as such, have been expressed in the most authentic form, and
with the most distinct meaning, that slavery, whencesoever
it comes, and by whatsoever casual access, or for whatsoever
transient stay, SHALL NOT BE TOLERATED UPON OUR SOIL.

That the particular case of slavery during transit has not
escaped the intent or effect of the legislation on the subject,
appears in the express permission once accorded to it, and
the subsequent abrogation of such permission.

1 Rev. St., Part 1, ch. XX, Tit. 7, Nos. 6, 7.

Repealing Act, Laws 1841, ch. 247.

Upon such a declaration of the principles and sentiments
of the State, through its Legislature, there is no opportunity
or scope for judicial doubt or determination.

Story Confl. Laws, Nos. 36, 37, 23, 24.

Vattel, p. 1, Nos. 1, 2.

II. But, were such manifest enactment of the sovereign
will in the premises wanting, as matter of general reason and
universal authority, the status of slavery is never upheld in
the case of strangers, resident or in transit, when the domestic

10 SPEECHES OF WILLIAM MAXWELL EVARTS

laws reject and suppress such status as a civil condition or
social relation.

(A) The same reasons of justice and policy which forbid
the sanction of law and the aid of public force to the pro
scribed status among our own population, forbid them in the
case of strangers within our territory.

(B) The status of slavery is not a natural relation, but is
contrary to nature, and at every moment it subsists, it
is an ever new and active violation of the law of nature.
Of this no more explicit or unequivocal statement can be
framed than is to be found in the Constitution of the State
of Virginia. Thus, the first article of the Bill of Rights of
that Constitution declares:

"That all men are by nature equally free and independent,
and have certain inherent rights, of which, when they enter
into a state of society, they cannot by any compact deprive
or divest their posterity; namely, the enjoyment of life and
liberty, with the means of acquiring and possessing property,
and pursuing and obtaining happiness and safety."

It originates in mere predominance of physical force, and
is continued by mere predominance of social force or mu
nicipal law. Whenever and wherever the physical force in
the one stage, or the social force or municipal law in the
other stage, fails, the status falls, for it has nothing to rest
upon.

To continue and defend the status, then, within our terri
tory, the stranger must appeal to some municipal law. He
has brought with him no system of municipal law to be a
weapon and a shield to this status; he finds no such system
here. His appeal to force against nature, to law against
justice, is vain, and his captive is free.

(C) The Law of Nations, built upon the law of nature,
has adopted this same view of the status of slavery, as resting
on force against right, and finding no support outside of the
jurisdiction of the municipal law which establishes it.

THE LEMMON SLAVE CASE 11

(D) A State proscribing the status of slavery in its domes
tic system, has no apparatus, either of law or of force, to
maintain the relation between strangers. It has no code
of the slave-owner's rights or of the slave's submission, no
processes for the enforcement of either, no rules of evidence
or adjudication in the premises, no guard-houses, prisons, or
whipping-posts to uphold the slave-owner's power and crush
the slave's resistance. But a comity which should recognize
a status that can subsist only by force, and yet refuse the
force to sustain it, is illusory. If we recognize the fragment
of slavery imported by the stranger, we must adopt the
fabric of which it is a fragment and from which it derives
its vitality.

If the slave be eloigned by fraud or force, the owner must
have replevin for him or trover for his value.

If a creditor obtain a foreign attachment against the
slave-owner, the sheriff must seize and sell the slaves.

If the owner die, the surrogate must administer the slave
as assets.

If the slave give birth to offspring, we have a native-born
slave.

If the owner, enforcing obedience to his caprices, maim or
slay his slave, we must admit the status as a plea in bar to
the public justice.

If the slave be tried for crime, upon his owner's complaint,
the testimony of his fellow-slaves must be excluded.

If the slave be imprisoned or executed for crime, the value
taken by the State must be made good to the owner, as for
"private property taken for public use."

Everything or nothing, is the demand from our comity;
everything or nothing, must be our answer.

(E) The rule of the Law of Nations which permits the
transit of strangers and their property through a friendly
State does not require our laws to uphold the relation of
slave-owner and slave between strangers.

1£ SPEECHES OF WILLIAM MAXWELL EVARTS

By the Law of Nations, men are not the subject of prop
erty.

By the Law of Nations, the municipal law which makes
men the subject of property, is limited with the power to
enforce itself, that is by its territorial jurisdiction.

By the Law of Nations, then, the strangers stand upon
our soil in their natural relations as men, their artificial
relation being absolutely terminated.

The Antelope, 10 Wheat. 120, 121, and cases ut supra.

(F) The principle of the law of nations which attributes to
the law of the domicil the power to fix the civil status of
persons, does not require our laws to uphold, within our own
territory, the relation of slave-owner and slave between
strangers.

The principle only requires us (1) to recognize the con
sequences in reference to subjects within our own jurisdic
tion (so far as may be done without prejudice to domestic
interests), of the status existing abroad; and (2) where the
status itself is brought within our limits and is here permis
sible as a domestic status, to recognize the foreign law as an
authentic origin and support of the actual status.

It is thus that marriage contracted in a foreign domicil,
according to the municipal law there, will be maintained as
a continuing marriage here, with such traits as belong to that
relation here; yet, incestuous marriage or polygamy, lawful
in the foreign domicil, cannot be held as a lawful continuing
relation here.

Story Conn. Laws, Nos. 51, 51, a., 89, 113, 114, 96, 104,
620, 624.

(G) This free and sovereign State, in determining to which
of two eternal laws it will by comity add the vigor of its
adoption and administration within its territory, viz., a
foreign municipal law of force against right, or the law of
nations, conformed to its own domestic policy, under the

THE LEMMON SLAVE CASE 13

same impulse which has purged its own system of the odious
and violent injustice of slavery, will prefer the Law of Na
tions to the law of Virginia, and set the slave free.

Impius et crudelis judicandus est, qui libertati non favet.
Nostrajura IN OMNI CASU libertati dantfavorem.
Co. Litt. ut supra.

ARGUMENT

// the Court please: The question brought originally under
judicial examination and for practical determination was
an interesting and important one, as it respected the liberty
of the persons whose fate was to be determined, under our law,
by our jurisprudence, and by the judgment of our Courts.
Their number was considerable; and ever in enlightened
communities, there is no question so important as that which
touches the liberty of man — in a free country, important
that the full measure of that liberty shall not be unjustly
and unlawfully circumscribed, and in a despotic country,
or in a country where slavery exists, important that the
poor remnant of that liberty may not be still more abridged.
Therefore, that imprisonment should continue an hour
longer than it ought by law, or that there should be con
straint of limb or voice that the law does not allow, is ever a
consideration that should call off courts of justice from the
ordinary deliberations on matters of property, however
great, until this question be determined, and this great
wrong, if it be one, be redressed. But when the question of
liberty is presented in the persons not only of so many, and
not only for their lives, but for the whole stream of their
posterity forever, I apprehend that no court of justice
(though limiting the gravity of this question to that of the
fate of these eight persons and their posterity), ever had
occasion to consider a graver question of human liberty, or
ever to be more careful that they should not, by an erring
judgment, determine the doom of these people forever.

14 SPEECHES OF WILLIAM MAXWELL EVARTS

The question is here, and it is not to be evaded. Whatever
is done concerning the future of these persons, is done by the
law of New York, imposed by her own State authority, or
by the law of New York, resting upon and imposed by the
paramount authority of the Federal Government. What
ever of doubt, of difficulty there may be, whatever of obscur
ity or uncertainty there may be, on this question, the deter
mination of this Court, as that of last resort in this State,
finally impresses the right, the sanction, the force, that are
necessary, and thus establishes, continues, or permits the
slavery of these men and women.

Now, beyond controversy, as it is the duty of an advocate,
so much more is it the duty of a Court, when a legal question,
within legal limits is to be disposed of, to meet that question
and determine it, as a juridical inquiry; and when the respon
sibilities of the judge and of the advocate are discharged, if
the law drives into slavery these unfortunate appellants to
your judgment, then, as servants of the law, you are ac
quitted. The ministers of justice do not always perform an
agreeable duty. But, every consideration drawn from
general jurisprudence, drawn from the nature of man, drawn
from the immutable qualities of right and wrong, may be
rightfully invoked in such an inquiry. Unless we live under
a government that has renounced all these principles, that,
on inducements of policy, of interest, or of whatever perverse
influence has guided the public councils, stands upon a
denial of natural right, upon the overthrow of general jus
tice, and has established the public policy of injustice and
oppression; unless the Court sits under a government that
has avowed and maintained, and calls upon it to avow and
maintain such a desertion of common right and natural
justice, then, all arguments, and all illustrations that bring
the judgment of a free Court of a free people to determine
what their law is, and how it should be administered, are, in
this inquiry, pertinent and appropriate.

THE LEMMON SLAVE CASE 15

But, if the Court please, the magnitude of this question
is not limited to its pressure upon the liberty of the particu
lar persons whose case is before the Court. As a part (and
a part not to be evaded) of the consideration and determina
tion, both in the legislative councils and in the courts of
judicature, of the nation, and of the separate States, of the
question that grows out of the existence in this country, in
slavery, of negroes and their descendants, the present in
quiry attracts great public attention.

Beyond the status of domestic slavery, as a local institution
— established, administered, construed and defended in and
by the States, which, under our Federal system maintain it
— three forms of question will obtrude themselves on public
attention, and cannot be avoided. The one is — What is
the power and authority of the Governments of the States
that continue and maintain the institution of slavery, in
respect of the free citizens or free inhabitants of this country,
to protect by their exclusion, or by their control while
within these communities, this institution of slavery, against
violent, against legal, against moral, against religious, against
social influences, that may disintegrate and destroy it?
This right, asserted to the extent of absolute control, upon
the necessity of self-preservation, has never been permitted
to be the subject of calm, judicial inquiry within the States
that support slavery. Whether free black citizens, or free
black inhabitants (if they be not citizens), of the free States
of the Union, shall be permitted in their pursuits of naviga
tion or otherwise, to come within the territory of a slave-
holding State; whether white mechanics, merchants, land
owners, whether teachers and preachers, free citizens of the
United States, shall be permitted within the slaveholding
States to establish their residence permanently or tempo
rarily, and pursue their vocations; or whether the institution
of slavery, of domestic authority, shall have the power to
subjugate the free people of the country, morally, socially,

16 SPEECHES OF WILLIAM MAXWELL EVARTS

and politically, in order that the slaves may be held in
personal bondage — these are questions that are exhibiting
themselves in a form the most significant and important in
various parts of this country. It has never yet been per
mitted in the slaveholding States, that judicial inquiry
should be instituted and prosecuted, to the result of a legal
determination of these questions.

Another most important, and in the public mind most
absorbing, political topic, touches the footing of this domestic
institution of slavery in, and in respect to, the territories of the
United States, that are protected by no government or laws
except those of the Federal Union. This question, agitated
in the public councils, agitated in the popular mind, and
discussed to a certain extent in the Supreme Court of the
United States, is one, opinions and determinations upon
which are supposed to have an important bearing upon the
third and last remaining inquiry connected with the general
subject. And that is, what is the legal position of the domes
tic institution of slavery, as existing in the slave States, in
regard to slaves and their owners, when brought within the
free States, that are governed by their own constitutions
and laws, expounded and administered by their own courts?
That is the question now before your honors; and that
question concerns what is of more vital importance to a po
litical community than anything else, its sovereignty. It
touches not only this question of sovereignty, vital to the
existence of an independent community, but sovereignty in
its most central point — that of the control of the civil and
social condition of persons within its borders. For it may
be very well understood that if a sovereign State has not the
power of determining the political, the civil, the social, the
actual condition of persons within its borders, it is because
some other power has that control; and how it can be ad
mitted that a foreign government, a foreign jurisprudence, a
foreign social condition, can intrude itself into an independ-

THE LEMMON SLAVE CASE 17

ent State, and establish for all time, or for any time, for
some persons, or for one person, that condition within the
State into which the intrusion is made; how this admis
sion can consist with the fundamental idea of the sover
eignty, or of the separateness of a political community, it
passes my intelligence to comprehend.

But, upon the view of the learned counsel who sustains
the pretensions of the State of Virginia, that State either by
its own authority, or by the aid of the Government of the
United States, has something to say concerning the legal
condition of persons within this State. The pretension that
by the paramount dominion of the Federal Constitution
we are bound to admit within our borders the institution of
slavery, is a claim which, in my judgment, permits of no
limitation whatever, of time or of circumstance. It pre
sents, therefore, a question of the first importance. If it
were presented to you as merely a question of comity, to
which you were obliged by your sense of what is fitting and
possible, under the recognized will and authority of our
own Legislature, why, although the public mind might be
awakened, the proposition would not be so alarming as, that
we are controlled in this matter, not by any judgment of our
own as to what is proper, or fitting, or hospitable, but are
bound by a superior authority, and to results to which we
can put no limits.

Now, if the Court please, it will be found that the very
general view, which has been suggested by the counsel for
the appellants here, of their claim respecting obligations
and duties on our own part, serves no good purpose what
ever, but tends to withdraw the attention of the Court from
the real subject of judicial inquiry. What is the subject of
the present judicial inquiry, and how does it arise?

Within this State, and within the limits of the City of
New York, were found eight men and women of color; and
it was alleged, in such authentic form as our statutes require,

18 SPEECHES OF WILLIAM MAXWELL EVARTS

to our accredited judicial officer, that these eight persons
were restrained of their liberty. What of that? What is
it that institutes such an inquiry, and what is the point to
be disposed of when such an inquiry is raised? The inquiry
is instituted under our statute of Habeas Corpus, one of the
main guards and protections of our liberty. For the
words "liberty" and "slavery" — which we may get so used
to as to think there is not much difference between them,
except that they suggest matters of jurisprudential con
sideration as to the limits and extent of the one and the
other — liberty and slavery, as civil conditions, are practically
nothing more nor less than the establishment of laws, and
the methods provided for their enforcement, to define and
protect the one institution and the other. And, when you
look for the liberty that the people of New York enjoy, you
find it in their laws and in their system of government. You
find their political liberty in the share that they have in the
election and change of all persons that form and administer
their government. You find their civil liberty, as matter of
private and personal right, in the guaranties of the Constitu
tion, in the methods of the public administration of justice,
in the trial by jury, in the Habeas Corpus; and you may have
all the fanciful notions of exemption from bodily restraint
in the world, yet if you do not have the Habeas Corpus act or
some equivalent mode of attracting the public eye and con
science in administering the law, to the condition of people
who are restrained of their liberty, you have no personal
liberty, for you have no efficient mode of vindicating and
defending it.

What does our Habeas Corpus act require, first, in respect
to the institution of the investigation, when it shall be al
leged to a judicial officer that any person within the State is
restrained of his liberty? Why, it creates an absolute legal
necessity that the question of fact and of right should at once
be withdrawn from the personal or forcible control which

THE LEMMON SLAVE CASE 19

exists, and be transferred instantly and completely to the
actual and legal control of the State. That is the Habeas
Corpus act, that the question of the restraint of a human
being in this State, upon any allegation that it exists in
fact, should be at once rescued from the determination of
force and personal control, and made a question of the State's
maintaining the restraint. From that time, in the theory
of the law, the restraint, in fact, cannot continue a moment,
but by its maintenance by the law of the State, enforced and
supported by the power of the State.

So essential, in a free State, is this practical form of sus
taining personal liberty, that it is protected in a way and
with a vigor that no other right whatever is protected, or,
consistently with some other general and necessary principles
is supposed to be possibly capable of protection. The right
to the writ of Habeas Corpus is protected against invasion
from the legislative power of the State, under the Constitu
tion; a protection which it shares with various other private
rights. But this writ as a matter of judicial administration,
is put upon a footing on which the exercise of no other
judicial procedure whatever is put — that is, upon an absolute
legal necessity that, upon suggestion, the writ shall issue.
The judge to whom application is made has no discretion
to withhold the writ; if he refuses it, he exposes himself to
fine, as well as to all the consequences of dereliction of ab
solute official duty.

Why is this? It is to secure, as matter of necessary practical
result, that, whatever the future progress of the inquiry and
its final determination shall be, the condition of personal and
forcible restraint shall not continue one moment, but that,
on the fundamental basis of this universal principle of free
governments — that whatever is rightly done, is rightly done
by law — the transfer shall immediately, completely and
irresistibly be made from the private force that accompanied
the actual restraint, into the region of law and judicial

20 SPEECHES OF WILLIAM MAXWELL EVARTS

determination, and from that moment, either the restraint
ceases or the law continues it and compels it.

(The Court took a recess.)

I have said, if the Court please, that the policy of our law
in support of personal liberty, had seen fit to devise a proc
ess whereby any actual restraint upon a person within this
State shall be immediately changed, in fact, from the re
straint by private force into the restraint of the law, and by
the public force; that thereafter the law restrained, and, by
its authority alone, was any continued deprivation of liberty
possible. I have said that this process was the important
practical and effectual support of liberty without which lib
erty might remain as a name, and despotism exist as a
system.

Am I wrong in claiming this efficient agency for the writ
of Habeas Corpus, and in attributing to it when issued, the
consequences I have suggested? The personal liberty of the
people of this State might doubtless have been left, in the
first instance, to their own protection, or for them to find,
by ordinary remedies, redress for its infraction. Thus it
might have been left to a person held in bondage or under
restraint in this State, to relieve himself by force if he could,
and then in an action to recover damages for false imprison
ment. This would be so if the Habeas Corpus act were not
in force, and this contest of private force would be deter
mined by superior strength as to who should obtain the
victory.

The distinctive trait of the Habeas Corpus act is that it
will not tolerate this "let alone9' policy — that it will not
permit the will or the power of prince or magistrate, or pub
lic officer, or private person to have sway, but always and
only the power of the law — that it will take an active part in
the protection and defence of liberty, and that the existence

THE LEMMON SLAVE CASE £1

of the fact of restraint shall be the only prerequisite to re
move the question from this region of force and submission
into the public jurisdiction of the law.

If this be so, and no one can deny that it is so, from the
moment the writ of Habeas Corpus was issued in this case,
if these eight persons are held in this State for any period,
brief or permanent, in slavery, or if they are sent away from
this State into slavery, it is done by the law of the State of
New York, and by it alone. For the private dominion of
Jonathan and Juliet Lemmon over these persons has been
removed by the writ of Habeas Corpus, and they stand in
this court for its judgment and control, as the law shall
award. The process once set in motion, there is no escape
from its regular procedure and its final result, and the
statute permits no answer that shall continue the restraint,
unless it shall disclose some cause in law sufficient.

Now, what is answered to the exigency of this writ? The
petition for the writ alleges that these persons "were, and
each of them was, yesterday confined and restrained of their
liberty on board the steamer, Richmond City, or City of
Richmond, so called, in the harbor of New York, and taken
therefrom last night, and are now confined in house No. 5
Carlisle street in New York, and that they are not committed
or detained by virtue of any process issued by any court
of the United States, or by any judge thereof, nor are they
committed or detained by virtue of the final judgment or
decree of any competent tribunal of civil or criminal juris
diction, or by virtue of any execution issued upon such judg
ment or decree." The supposed cause of restraint is then
set forth by the petitioner, but as the return states it, we
need not consider the charges of the petition in this behalf.
The answer gives as legal reason for holding them in the re
straint thus admitted to exist, that in the State of Virginia,
the respondents, Jonathan and Juliet Lemmon, being there
residents and citizens, these eight persons were their slaves;

m SPEECHES OF WILLIAM MAXWELL EVARTS

that they, planning an emigration from Virginia to Texas,
where the institution of slavery, equivalent to that under the
laws of Virginia, existed, took passage in a steamer to the
city of New York and there landed, awaiting the commence
ment of a new voyage, that should carry them to Texas;
that their residence or being in the State of New York was as
part of that transit, and with no other plan or design in re
gard to their remaining except to complete that proposed
voyage from New York to Texas. And they claim that the
restraint exercised is justified under the laws of New York,
by reason of the facts they have stated. That is the case,
and that being the case, it is for the court to determine
whether by the laws of New York, that is legal cause of re
straint; and if it be, to give the whole power of the law and of
the State of New York to maintain that restraint. The
statute provides that upon the return made to the writ
"the court or officer before whom the party shall be brought
on such writ of Habeas Corpus, shall immediately after the
return thereof, proceed to examine into the facts contained
in such return, and into the cause of the confinement or re
straint of such party. If no legal cause be shown for such im
prisonment or restraint, or for the continuation thereof,
such court or officer shall discharge such party from the
custody or restraint under which he is held."

The necessary result of this procedure, introduced by the
writ of Habeas Corpus, is thus shown to be the discharge of
these persons from the control under which they are found,
unless some legal cause shall have, by the return, been shown
for the continuance of the restraint complained of. The
only question, then, was, and is, whether the relation of
slavery (as described in terms in the return), existing in
Virginia, and existing conformably to the laws of Virginia,
is a cause for the restraint by our law, of these persons under
the dominion of their owners as slaves in New York, during
a brief or other stay, under the circumstances detailed in the

THE LEMMON SLAVE CASE 23

return, and so as to compel the authority of our State to be
actively exerted to maintain and continue such restraint of
liberty.

We are first, then, brought to the inquiry of what a legal
cause of restraint is. It is, I take it, an identical proposition
to say, that legal cause of restraint can be none other than
an authority to maintain the restraint which has the force
of law within this State. From whatever source this
authority of law is derived — whether it be directly from
the State legislation, or is found in the unwritten common
(or customary) law of the State itself, or whether it be from
the Federal Government, whose Constitution and statutes
have as perfect authority within this State, as laws origin
ating by State enactment, or by the adoption for the time
being under the principles of comity, or for whatever reason,
of a foreign system of law (as a fragment and casually, if you
please), it must have the compulsory force of law in this
State or it is no answer to the writ. Under this last head of
authority the inquiry is, whether our law, finding such re
straint maintained or permitted by other communities with
which we have intercourse, chooses to say that, under certain
circumstances and limited conditions, it will interpose and
continue that restraint on persons passing through our
territory. Your Honors will see, that though you may as
cribe to these three sources of authority, the means or
grounds for the restraint under consideration, yet after all,
they are but two; the authentic and original law of our
State, and the authentic and original law of the Federal
Government. For the legal policy that may make possible
and exceptional, in favor of strangers, a condition of things
that we do not permit to our own citizens or tolerate in our
own population, though called by the name of comity, must
after all, be a part of the jurisprudence either of the Federal
Government in force within this State, or of the State Gov
ernment, administered by our Courts.

24 SPEECHES OF WILLIAM MAXWELL EVARTS

Having thus, as I think, rightly put before the Court the
real point for its consideration, and assigned the true limits
from which the rules for its adjudication must be furnished,
let us look for a moment at the position taken by our op
ponents. As I understand the learned counsel who supports
the pretensions of the State of Virginia, and maintains the
case of the appellants here, the form and substance of his
argument may be briefly divided thus: The first point, on
which he insists, which includes mere general topics, ex
panded through the first seventeen pages of his brief, is
designed as an argument to propitiate the Court to a favorable
consideration, or at least to an impartial estimate of this
stranger, slavery ; to show that it is not as bad as it has been
painted, and that some of the men who have given it an ill
name, have themselves had complacency and toleration for
other social faults and defects, in the communities in which
they lived, that were quite as bad. Its purpose is to put
this Court in a disposition to find no repugnance to this in
stitution of slavery, in their own breasts, in the public con
science, or in the sentiment or in the action of this State, as
evinced by any legislation, any principles of its common
law, any judicial determinations, except as they may find
written in the statutes, some imperative prohibition of
slavery. He would bring you to think that if this were an
open question (and he will contend that it has been left an
open question, so far as any statute of the State is con
cerned) — there are many reasons of conscience, of justice,
of benevolence and of duty, which require the maintenance
and continuance of the institution of slavery, and require
every man, whose hands are untied, to give it a helping and
supporting hand; that you must find yourselves subdued by
some hard system of positive law, that prohibits you from
being hospitable to this social and civil institution of slavery,
to justify this Court in frowning upon it. In some future
stage of my argument I shall have, more completely and

THE LEMMON SLAVE CASE 25

distinctly perhaps, to direct the attention of the Court to
some of the many positions and illustrations which are em
bodied in this forensic plea for slavery. But let me say
now, that if this Court and our people cannot be brought to
look kindly upon its fragmentary and temporary existence
in our midst, but by trampling down, step by step, all the
great barriers against oppression that have been raised
by the reason, the justice and wisdom of age after age — but
by undermining the principles that have built up a great,
free and powerful nation, to be the habitation of liberty
and justice for the great population of to-day, and for
generation after generation yet to come; if the rights,
poor, feeble, casual, of the black man, cannot be overborne
or overthrown without tearing in pieces the law of nations —
confounding all distinctions between civilization and bar
barism — subduing right by might, and thinking that force
and power can, any day it chooses, call evil, good, and good,
evil, and that a few soft phrases and intricate sentences can
obscure, even for an hour, the difference between right and
wrong, and the fundamental distinction between a rule of
force and a rule of right: then this class of the community,
while here in the State of New York, is abundantly safe;
for an adoption of the maxims and the principles that are
necessarily claimed in this deliberate argument, that force
is right, and power is law, can only be expected by reversing
the whole tide of civilization, and by bringing into discus
sion, in courts of justice, that rest upon nothing but the
supremacy of reason for their authority, propositions that
make foolish the existence of tribunals of justice, when con
tests of force alone are important or interesting to man and
to society.

The next proposition of the counsel for the appellants is
that, up to the time of this judicial inquiry in the Court be
low, there was no legislative act of our State that, by its
effect or in its terms, operated to prevent our Courts from

26 SPEECHES OF WILLIAM MAXWELL EVARTS

withholding a judgment of liberty, on a writ of Habeas
Corpus, from slaves brought hither from another State of
the Union; and further, that if the statutes of the State,
rightly construed, should be held to have that force and effect,
under the Constitution of the United States, such statutes
are invalid, and no judgment that was based upon such a
construction of the law of this State, could be sustained.
And this prohibitory control of the Constitution of the
United States, over this subject, is based upon the commer
cial powers of the Federal Government to regulate that kind
of intercourse between the States of the Union, and upon the
provision or guaranty of the Constitution to the citizens of
each State, that they shall be entitled to all the privileges
of citizens in the several States. In gaining this effect from
the latter clause, the learned counsel holds, by a construc
tion, I think, somewhat novel, that its meaning is, that the
citizens of each State, shall have in each other State, not
the same rights as the citizens of the State into which they
come, but, what the learned counsel describes as, the rights
of a citizen of the United States, in each State into which
they come; and, this being rather a shadowy description of
rights, not to be found, I think, defined in any constitution
or by any laws, the proposition ends in claiming as the effect
of the clause in question, that the citizens of each State, com
ing into another State, besides the privileges and immunities
of citizens enjoyed there, which they are to receive in full,
are also to be accorded all the rights they had at home ; and
that this clause (in its natural, and in its established, con
struction so easily understood, so consonant with general
jurisprudence, so important and useful in preserving relations
between the citizens of different States, by according freely
and at once to every citizen who comes here, the same rights
which our citizens have) is turned into an instrument and
means of the absolute overthrow of State sovereignty.
That is to say, that, under this clause of the Constitution,

THE LEMMON SLAVE CASE 27

instead of protecting the citizens of every State against
disparaging distinctions in any State, between them and
the citizens of that State — instead of being a shield and a
guard — the Federal Constitution arms them with the codes
and statutes of their own State, which they carry with them,
as an additional system of law, to be administered in their
favor, while they remain lawfully within the State to which
they have made their visit. I say it comes to this sub
stantially, in terms; and it must come to this if it varies at
all from what seems to me, the simple and necessary con
struction, that its effect is limited to securing to citizens of
other States, while here, the same rights and privileges with
our own citizens. For, although it is very easy to talk of a
"citizen of the United States," it is very difficult to find a
citizen of the United States, that is not a citizen of some
State, and it is very difficult to find in my judgment, a
citizen of any State who is not a citizen of the United States.
I do not see where you will find, in the law or Constitution,
any description of citizenship of the United States, as distin
guished from citizens of the States, except in regard to per
sons brought in ab extra, persons of foreign nativity where an
operative citizenship, of the United States, proceeds from
the Federal power. But none of us that were born here
ever got any right of citizenship of the United States, except
by, and from, and in, the fact that we were citizens of some
State.

The course that I shall think suitable, if the Court please,
to adopt in this direct legal inquiry, under this writ of Habeas
Corpus now before the Court, will be to say, and, I think to
show, that, as for legal cause for the restraint of these persons
within the city of New York, under the circumstances de
tailed, the Constitution of the United States, and the Fed
eral statutes, give no law whatever — none — and that they
have nothing to do with it. In the first place, I state, as a
point of elementary constitutional law, that the Federal

28 SPEECHES OF WILLIAM MAXWELL EVARTS

Constitution, and legislation under it, have, in principle
and theory, no concern with the domestic institutions, the
social basis, the social relations, the civil conditions, which
obtain within the several States. Is there any doubt on
that subject? We are all familiar with the divisions of
political opinion, that have arisen on the question whether
this or that particular power sought or claimed to be exer
cised by the Government of the United States, was or was
not within the grants of power in the Federal Constitution.
We all know that, as lawyers, we are not unfrequently called
upon to determine, whether this or that exercise of govern
mental power by a State authority is or is not an infraction
upon the express or implied power of the Federal Govern
ment. But, every lawyer knows that the whole jurispru
dence of State and Federal courts on these subjects — as to
whether the express power or necessary implication of power
exists in the United States, and whether the particular
action of a State Government is a violation of some express
prohibition upon its action in the Federal Constitution, or
is an intrusion and encroachment upon some explicit or im
plied power of the Federal Government — every lawyer, I
say, knows that the whole matter involved within the
limits of this inquiry constitutes, as it were, but the merest
fraction of the general rights, laws, institutions, employ
ments, conditions, relations, which build up civilized so
ciety, and make up the body of the subjects of the jurisdic
tion of the several State Governments.

It is very difficult to see how it can be claimed that,
upon any general theory, the Federal Government has
anything to do with any questions regulating the rights and
titles to property — regulating the distribution of rank and
orders in society, if they should ever come to exist, or at all
touching the great social fabric, which makes up a civil
State. I am, then, justified in saying that, upon the whole
theory of the two governments, State and Federal, we are

THE LEMMON SLAVE CASE 29

quite free from any implication, or intendment, that the
Federal power has anything to do with the civil conditions
and social arrangements within the different States.

If we look at the history of the Constitution, and of the
opinions of the men who framed it, we find that a determined
stand was made against anything like the establishment of a
general government that should exercise authority, at all,
over the general fabric and system of the domestic condi
tions of the people. All the different provinces had laws,
and customs, and arrangements, with which they were satis
fied, and they were unwilling, in the language of Mr. Ells
worth, of Connecticut, "to trust the Federal Government
with their domestic institutions." And we know that, since
the formation of the Constitution, its amendments, and the
political controversies that have arisen under it, have all
tended to confine the General Government to, and restrict
the State Governments only in, the particular and main
lines of authority that are delegated in the Federal Consti
tution. Now, if we had not looked at the Federal Consti
tution in this light, it would surprise us to see, in how few
provisions, and in relation to how few subjects, it at all
touches, or makes mention of, the condition of people
within the States. There are but four references, as I con
strue the Constitution, that can bear this construction.

The first is a reference to the civil conditions obtaining
within the States to furnish an artificial enumeration of
persons, as the basis of Federal Representation and direct
taxation, distributively between the States.

The Constitution establishes a rule for the distribution of
representation in the Federal Government, among the dif
ferent States of the Union, by a reference to the condition
of people within it — that is to say, instead of adopting the
natural numeration of population throughout this country,
as the basis of distribution of Federal Representation, it
does establish an artificial rule or method of count, for that

30 SPEECHES OF WILLIAM MAXWELL EVARTS

purpose recognizing social differences of condition in parts
of the population. It does not make any discrimination
between States, but says throughout all the States, from
Massachusetts to Georgia, you shall count all the people
that come within a certain description (which is intended to
include everybody but slaves, without the odium of naming
them), and then count three-fifths of the rest, who can be
none others than slaves.

The second reference of the Federal Constitution is to the
political rights of suffrage within the States, as supplying the
basis of the Federal suffrage in them, respectively.

Here, the Federal Government comes into the States
merely to seek what it shall find there: not in the remotest
degree to establish anything, to preserve anything, to
affirm or continue anything. It is demonstrable that each
State has a complete control over the suffrage within it, for
all Federal representation.

The Constitution has expressly declared, that whatever
each State shall consider a proper basis of suffrage for rep
resentation in the more numerous body of its legislature,
shall be the basis of suffrage for representation in Congress.

The third provision, one to which I have already referred,
is that for securing to the citizens of every State, within
every other, the privileges and immunities (whatever they
may be) accorded in each to its own citizens. Let us look
at the phraseology of that section, to see whether it bears
any other construction than the simple one which I have
attached to it. The words are these:

"The citizens of each State shall be entitled to all privi
leges and immunities of citizens in the several States."

It is claimed by the learned counsel for the appellants,
that this should be construed as if it read: "The citizens of
each State shall be entitled to all the privileges and im
munities of citizens of the United States — in the several
States."

THE LEMMON SLAVE CASE 31

But it is very plain as it seems to me, in the first place,
that there is nothing in the condition of a citizen of the
United States, which would warrant the suggestion, that
there was any intention that he should carry into any
State social or political rights which citizens there did not
enjoy. And, in the second place, the natural and neces
sary construction of the clause is, that the privileges and
immunities secured to citizens of each State, while within
another, are the privileges and immunities that citizens of
the State, where such privileges and immunities shall need
to be claimed, enjoy. It establishes, and should establish,
a rule of equality and uniformity, not of distinction and
confusion.

The fourth provision of the Constitution, which comes
under our consideration, is familiarly known as the "Fugi
tive Slave Clause," and reads as follows: "No person held
to service or labor in one State, under the laws thereof,
escaping into another, shall, in consequence of any law or
regulation therein, be discharged from such service or labor,
but shall be delivered up upon claim of the party to whom
such service or labor may be due."

This clause undoubtedly, does affect the condition of
persons in the States of the Union. It, undoubtedly, does
affect an escaped slave, while within any State of this
Union into which he shall have escaped, with certain re
straints, impediments, burdens and consequences of restora
tion, which are not imposed by the government or laws of
the State in which he is found. And here, for the first,
does the Federal Government, by its own force, put upon
this particular class of our population, found in the special
predicament of escape from the State in which they owed
service, the bonds of Federal obligation, and destroys en
tirely their recourse to the protection which, otherwise,
they could have claimed from the laws of the State in which
they are found.

32 SPEECHES OF WILLIAM MAXWELL EVARTS

Now I have said that these are the only clauses of the Con
stitution that can be held in any sense to relate, at all, to
the condition of persons, civil or political, in the States of
the Union, for any purposes of Government; and that none
of these clauses touch the question now under discussion.
The argument to this effect in respect to the "Fugitive
Slave Clause " is unanswerable.

The general principles of jurisprudence and the decisions
of the Federal courts, all show that, but for the existence
of this clause, an escaped slave would be held by no restraint
or coercion, except such as the State in which he was found
chose to establish and enforce; and that the rights of the
master would rest upon nothing but the comity or the legis
lation of the State into which the escape had been made.
The existence of this clause in the Constitution is not only
evidence that the right of reclamation would not have
existed but for its insertion; but it is an argument of the
utmost force, that even with this clause in the Constitu
tion, no right exists for his master to hold in servitude, in
the State of refuge, even an escaped slave. An escaped
slave, after he is restored, is held in slavery by the laws of
the State whence he escaped and to which he returned, as he
was before. But while he is in another State, the "Fugitive
Slave Clause " gives no authority to hold and use him as a
slave. There is no legal answer that can be made to our
writ of Habeas Corpus, in respect to a slave escaped into
this State, except that he is held by authority of Federal
legislation, under the Constitution, providing the mode of
his recapture and restoration to his home of slavery.
Whether now it would be held by the Federal judiciary, that
there existed a general right on the part of the master, per
sonally, to reclaim the slave by his own direct force, as bail
may recover their prisoner, is doubtful. But granting that
such right exists, still there is no right to hold him in slavery
in the State to which he has escaped. There is the right of

THE LEMMON SLAVE CASE 33

taking and carrying him away, undoubtedly, either by the
process of Federal law, or, perhaps, by this personal au
thority that belongs to the relation of bail and prisoner,
or master and slave; but not to hold him in slavery; and
any attempt to do so, or to do anything except with due
diligence to remove the escaped slave to the State from
which he escaped, would not be protected against our writ
of Habeas Corpus by the Federal Constitution or Federal
legislation.

Before considering the decisions of the United States
courts, which I suppose clearly establish the position that
the Federal legislature and the Federal courts have nothing
whatever to do with the subject now before this Court, I
will, very briefly, place before the Court my views as to the
existing law of this State, on the subject of the allowance or
permission of slavery within it.

If there is nothing left to be considered but whether our
law sustains or permits this relation of master and slave,
if this is the kind of legal restraint necessary to defeat of
its proper result the writ of Habeas Corpus, then we must
find in our State law, in some form, an authority for the re
straint.

It is necessary for me, here, only to suggest, that it is not
requisite, to support a legal restraint, that there should be a
positive warrant or mandate of law directing or requiring
it. A restraint permitted by our law is as good an answer to
the writ of Habeas Corpus as a positive warrant or mandate.
It is not necessary that we should have a writ of execution,
or a warrant of committal, or that the imprisonment should
be in the State prison or in a jail, or that, in any form, there
should be a direct command of active authority. The
relations that our law recognizes, whether or not they be
established or regulated by statute, and which give, in their
nature, restraint over the person, to this or that degree,
constitute a good answer to uphold the exercise of that

34 SPEECHES OF WILLIAM MAXWELL EVARTS

restraint to that degree. The relations of husband and wife,
of parent and child, of guardian and ward, of the drunkard
and his committee, of the lunatic and his committee; all
these relations, when the exigency of the writ evokes them
as a cause of the restraint of persons, are recognized by our
law as justifications for such restraint and control as do not
exceed the due measure which the law allows to them.
But, if the Court please, there can be nothing recognized by
law as an occasion or justification of restraint, except some
general status established, allowed, recognized, by our law,
or, some positive mandate or warrant. In one or the other
form, as matter of positive, actual, recognized existence in
our State, an answer must be made to the writ, or the
liberty of the subject of it is, at once, secure to him. The
answer here does not set up any of the natural relations.
Nor does it set up the relation of apprentice and master, or
of guardian and ward, or any similar relations, which are
not natural but yet are lawful relations. The answer is
slavery; and not slavery of the State of New York, but
slavery of the State of Virginia. It is slavery in Virginia,
in transit through New York, continuing here the relation
created by the law in Virginia, which it is expected or de
sired, shall receive the sanction and support of our law,
and of this Court, for the special purpose the occasion re
quires.

But, I maintain, the law of this State does not permit the
existence of slavery within its limits. And, first, the com
mon law of the State does not permit the existence of slavery
within its limits. I now speak of the common law of this
State as we understand it, as a system of law governing the
relations of persons, and of persons to things in this State,
as a body of law discriminated and separated from that which
is established by statute. This body of law is derived from
England, the source of the common law of this State; and
when I say the common law of this State does not permit

THE LEMMON SLAVE CASE 35

slavery within its limits, I fear no contradiction, in the
known judicial sense of that law.

Whether or not the institution of slavery within this
State — while it existed and was regulated by statute, and
was modified also, I have no doubt, by subjecting it, in some
degree, to the principles of common right and general jus
tice which lie at the foundation of the common law of the
State, and of the nation from which we inherited it — whether
or not the institution of slavery in this State was, properly
speaking, a part of the common law of this State, seems not
to be a very important inquiry. I do not suppose it should
be, properly, so considered. I suppose that the whole
course of legislation, the whole course of judicial deter
mination, treated the whole system of slavery in this State
as foreign — not incorporated into our system, not permitted
to be moulded into that relation between master and slave
which would have followed from its control by the common
law. The cases I have referred to from the English books
(and, I take it, they have not been at all shaken by the com
ments of the learned counsel), the cases show, that, by the
common law of England, any such status of slavery as it is
known in the United States, or as is pleaded here as an
answer to the writ, uever existed. This is not to be doubted.

Whether, in former times, villenage existed in England,
whether it was a monstrously iniquitous oppression, and
whether it was inconsistent for British judges to frown upon
negro slavery there, in the eighteenth century, because vil
lenage had obtained in earlier times, and whether this in
consistency justly subjects them to my learned friend's
derision, may be matter of useful inquiry in some other
connection than the present. But the common law of
England never knew of this condition of slavery which is
pleaded as an answer to the writ of Habeas Corpus, and as
legal cause for holding these persons.

The status of slavery, therefore, not being established by

36 -SPEECHES OF WILLIAM MAXWELL EVARTS

the common law of England before the Revolution — and
that constitutes our common law — we need to find a posi
tive support for slavery among our population, recognized
by the public will of the State, as manifested by legislation,
in order to sustain it. If obliged to rest upon the common
law, it would have no support whatever.

What may, at earlier periods of our history, have been
the condition of our statute law on this subject, comes to
be rather an idle inquiry, when we consider the plain and
comprehensive terms of the existing statute law of the
State. My learned friend has called the attention of the
Court — rather by way of parenthesis, however, — to the
statute which it is now necessary to look at more distinctly.

The Revised Statutes, being, in the provisions I am now
about to read, a re-enactment of the law of 1817, provide as
follows: "No person held as a slave shall be imported, in
troduced, or brought into this State, on any pretence what
ever, except in the cases hereinafter specified. Every such
person shall be free. Every person held as a slave who hath
been introduced, or brought into the State, contrary to the
laws in force at the time, shall be free." (Section 1.)

"Every person born within this State, whether white or
colored, is FREE; every person who shall hereafter be born
within this State, shall be FREE; and every person brought
into this State as a slave, except as authorized by this title,
shall be FREE." (Section 16.)

I cannot think it important gravely to discuss with my
learned friend, whether this law, in its proper construction,
does proscribe the existence of a slave within this State, and
make it a legal impossibility wherever the law has force.
He has argued, I know, that, although the Legislature,
besides the commercial word "imported," and besides the
word, of Latin origin, "introduced" (which means "brought
within"), has also used the words "brought into" — that it
has failed to make itself fairly understood, or to accom-

THE LEMMON SLAVE CASE 37

plish the meaning imputed in our construction, that a slave
should not be within this State. It is said that the true force
of these terms is satisfied by the construction, and therefore
the true construction of the clause should be, "that no slave
shall be incorporated into the population of this State; that
no slave shall be brought into it, or imported into it, with
the design and purpose that he should become a part of the
population of this State." Exactly what that means,
exactly what limits to the tolerance or maintenance of
slavery in this State, this construction of the statute would
impose, it is not easy to say, nor do I care to inquire. I
respectfully submit, that the statute is clear, comprehensive,
and decisive in its meaning, and in its effect. If the statute
has the force of law in this State, there never can be, on any
pretence, a person in the condition of slavery within this
State, unless some provision of that statute, found between
the first and last sections of it which I have read to the
Court, gives that right.

Now, we do find certain exceptions made by the statute
under consideration, for the allowance of slaves under special
circumstances within this State, and among these exceptions
the following, being sections six and seven of the title :

" Sec. 6. Any person not being an inhabitant of this State,
who shall be travelling to or from, or passing through this
State, may bring with him any person lawfully held by him in
slavery, and may take such person with him from this State;
but the person so held in slavery shall not reside or continue
in this State more than nine months, and if such residence
be continued beyond that time, such person shall be free."

"Sec. 7. Any person who, or whose family shall reside
part of the year in this State, and part of the year in any
other State, may remove and bring with him or them, from
time to time, any person lawfully held by him in slavery,
into this State, and may carry such person with him or
them, out of this State."

38 SPEECHES OF WILLIAM MAXWELL EVARTS

In 1841, this act was passed:

"The third, fourth, fifth, sixth, and seventh sections of
Title 7, Chapter 20, of the first part of the Revised Statutes,
are hereby repealed."

This express repeal of the sixth and seventh sections,
which I have read from the Revised Statutes, presents in
the most distinct and absolute form the determination of
the people of this State, that the temporary introduction of
slavery by transient visitors should not, under any circum
stances, be permitted.

Your Honors will perceive that the question now presented
is not at all different from what it would have been, while
the sixth and seventh sections, that permitted a temporary
residence with the slave, were in force, in the case of a slave
attempted to be held after the expiration of the limited term.
There was a permission for a specified period of time, and a
declaration that if that time were overpassed, the slave
should be free. Now no hospitality of any kind, or for a
moment, is permitted to the master, with his slave, in any
sense of retaining him as a slave.

Let us, then, consider a little more fully whether the
Federal laws and Federal decisions leave any doubt as to
the complete exemption of the several States from Federal
control in this matter. Now, your Honors will perceive
that, while we talk of comity permitting to strangers from
communities with which we are in peace, passing through
our State, this or that privilege, and so long as the extent
of this comity is determined by our jurisprudence and by
our own Statutes — we do control entirely the condition of
persons within our State. If judicial determinations, at any
time, show greater hospitality to foreign institutions than
public sentiment approves, the legislature may limit, or
wholly terminate that comity.

But when it is claimed that by a superior and paramount
law Mr. and Mrs. Lemmon can make a good answer to the

THE LEMMON SLAVE CASE 39

writ of Habeas Corpus, in this State, that they hold these
eight persons in New York as their slaves, until they, in
pursuance of their proposed voyage, should take them away,
— that they bring and hold their slaves here by paramount
law, and that law is found in the Constitution of the United
States, the question arises: Where is the limit of that right?
I defy the learned counsel for the appellants, if he claims
this right under the Constitution of the United States, to
fix a limit of any kind, either in time, in circumstance or in
the tenure of the slavery here — unless it is to be left to some
tribunal to say whether the maintenance of slavery under
the circumstances, and for the time claimed, is within some
general obligation of respect and regard between the different
States of this Union. And this brings the question back to
the region of comity, and not of right.

There is no stopping place, in my judgment, for the right
claimed under the Constitution of the United States, short
of allowing the continuance and maintenance of slavery just
so long as citizens of other States shall choose to reside within
this State, without surrendering their character of citizens
of other States. Accordingly, the claim now, as I under
stand it, is that Virginians coming here, can bring their
slaves and keep them here as long as they remain Virginians.
The claim is one of vast proportions, if it be any claim at all;
it has no self-imposed limitations whatever. In nature and
substance it is a claim that citizens of each State may carry
into other States the institutions of their own State. Now,
the exclusion of slavery from the States has been the subject
of legislation quite as much in the slave as in the free States.
I doubt whether there is a slave State in the Union that has
not, at some time, or to some extent, legislated for the exclu
sion of slaves from its territory, and prescribed, as the direct
and immediate consequence of their introduction, that they
should become free. Will any one draw a distinction be
tween the right of excluding slaves from a State from the

40 SPEECHES OF WILLIAM MAXWELL EVARTS

love of liberty, and excluding them from motives of pro
tection and regard for slavery? If South Carolina, from fear
of being over-stocked with slaves, legislates to prevent the
introduction of more slaves; and if New York regarding one
slave an overstock, legislates to exclude that one, is there
any difference as to the power of legislation, growing out of
the motive and purpose of it? I take it not. Virginia, as
early as her emancipation from the dominion of the British
crown permitted, in 1778, passed a law prohibiting the intro
duction of slaves into Virginia, and prefaced it with a pre
amble that she had been prevented from doing it before
then, "by the inhuman exercise of the veto of the King of
England." That law and its preamble are a good answer,
from the State of Virginia, to many of the views now sup
ported, in its name and behalf, by the learned counsel.

Certainly slavery cannot be "just, benign, beneficent,
consistent with pure benevolence, and, indeed a positive
duty," — if the exclusion and suppression of the institution
had been retarded by an act of authority, which was justly
stigmatized as inhuman. Certainly we might suspect that
slavery itself was inhuman, if the suppression of it was only
stopped by an act of inhuman tyranny.

But later legislation, and legislation that has been brought
into judicial controversy in the slave States and in the Fed
eral tribunals, has busied itself upon this same subject. The
case of Groves vs. Slaughter (15 Peters) was considered,
and should be considered, and is tenaciously adhered to by
the present Chief Justice of the United States, as a decision
that the Federal government has no voice or authority on
the subject whatever. How did that case arise? The Con
stitution of Mississippi adopted in 1832, had prohibited the
introduction of slaves as merchandise or for sale after the
first day of May, 1833. Notwithstanding that provision,
there having been no affirmative legislation, defining penal
ties and affixing consequences to the introduction of slaves

THE LEMMON SLAVE CASE 41

and their sale, the people of Mississippi bought a good many
slaves from Kentucky and Tennessee, and other States, and
gave their notes for them. When the notes became due,
the slaves being in Mississippi, and still held as slaves, the
collection of the notes was attempted to be defeated on the
ground that the consideration was illegal, because the slaves
had been introduced into the State of Mississippi, contrary
to the provisions of the Constitution. The State courts of
Mississippi held that that was a sound view of the law, and
that from the payment of the notes, amounting altogether
to some millions of dollars, the people of Mississippi were
quite free; that they might keep the slaves and not pay the
notes. The question was brought up before the Supreme
Court of the United States, in the case of Groves vs. Slaughter,
argued by Mr. Webster, Mr. Clay, and General Jones, on
behalf of the note holders, and by Mr. Gilpin, Attorney-
General, and Mr. Walker of Mississippi (since much dis
tinguished in public life), on the other side. A very elaborate
discussion was had on one question involved, whether the
Constitution of Mississippi, by its own vigor, operated such
an illegality in the introduction of slaves, as made the notes
void; or whether it was only binding upon the Legislature to
pass laws that should prohibit their introduction and should
affix such consequences — such as forfeiting the purchase, or
making the slave free, or declaring the contract or the secur
ity void — as they might see fit. It was claimed on the part
of the note holders that this Constitutional provision did
not, of itself, without legislation under it, create such an
illegality in the contract of sale, as defeated the recovery of
the note. They contended, further, that if that consequence
did follow, so as to be a matter of forensic importance in the
case, the Constitution of Mississippi, which excluded the
slaves, was, in this provision invalid, under the Constitution
of the United States; that, under the commercial clause, the
Federal Government had exclusive jurisdiction over the regu-

42 SPEECHES OF WILLIAM MAXWELL EVARTS

lation of commerce between the States; and if commerce
between the States, then of commerce in slaves, as well as in
any other property. The proposition, therefore, was, that
this clause in the Constitution of Mississippi which excluded
slaves from the State as merchandise was void, under the
Constitution of the United States, in its commercial clause.
Well, that case was disposed of by the Federal judiciary
holding, as matter of law, that the notes were not avoided
by the Constitution of Mississippi, but that legislation was
needed to produce that effect. But the Court utterly scouted
the notion that the clauses of the Constitution of the United
States appealed to, had anything to do with this question of
the introduction of slaves into either slave or free States.
The opinion of the Court was given by Mr. Justice Thomp
son, and disposed of the cause, as I have said, on the point that
the Constitution of Mississippi did not invalidate the notes.
But the magnitude of the question involved in this claim
that the commercial power of the Union had any authority
over the introduction or determination of any status inside of
a State, induced the Court to regard it as a matter concerning
which they must express the most decisive opinion. And if
it be held that the point already decided disposed of the case,
and that the further opinions of the judges were unnecessary
and superfluous — why it is at least as good an authority as
the reasoning of the judges in the Dred Scott case, beyond
the point of decision there, and which is so much relied on
in this argument.

At page 506, Mr. Justice McLean states the question,
"Can the transfer and sale of slaves from one State to
another be regulated by Congress, under the commercial
power? " I take it for granted that there is much more sense
in claiming that, when the introduction of slaves has some
connection with commerce, in a proposed sale, you may
invoke the commercial power of the Union, than when their
introduction is mere matter of convenience of travel. The

THE LEMMON SLAVE CASE 43

learned judge proceeds: "The Constitution treats slaves as
persons. By the laws of certain States, slaves are treated as
property; and the Constitution of Mississippi prohibits their
being brought into that State by citizens of other States, for
sale, or as merchandise. Merchandise is a comprehensive
term, and may include every article of traffic, whether for
eign or domestic, which is properly embraced by a commer
cial regulation. But if slaves are considered in some of the
States as merchandise, that cannot divest them of the lead
ing and controlling qualities of persons, by which they are
designated in the Constitution. The character of property
is given them by the local law. This law is respected, and
all rights under it are protected by the Federal authorities;
but the Constitution acts upon slaves as persons, and not
as property. . '/. . The Constitution of the United States
operates alike on all the States, and one State has the same
power over the subject of slavery as every other State. If
it be Constitutional in one State to abolish or prohibit slav
ery, it cannot be unconstitutional in another, within its dis
cretion to regulate it. ... The power over slavery
belongs to the States respectively. The right to exercise
this power by a State is higher and deeper than the Consti
tution. This involves the prosperity and may endanger the
existence of a State. Its power to guard against or to remedy
the evil, rests upon the law of self-preservation — a law vital
to every community and especially to a sovereign State."

Chief Justice Taney is not at all behind Mr. Justice Mc
Lean in his views of the necessary reservation to the States
of complete control over this whole subject. He says, at
page 508: "In my judgment, the power over this subject is
exclusively with the several States, and each of them has a
right to decide for itself whether it will or will not allow
persons of this description to be brought within its limits
from another State, either for sale or for any other purpose;
and also to prescribe the manner and mode in which they

44 SPEECHES OF WILLIAM MAXWELL EVARTS

may be introduced, and to determine their condition and
treatment within their respective territories; and the action
of the several States upon this subject cannot be controlled
by Congress, either by virtue of its power to regulate com
merce or by virtue of any other power conferred by the
Constitution of the United States. I do not, however, mean
to argue this question. I state my opinion upon it, on ac
count of the interest which a large portion of the Union
naturally feel in this matter, and from an apprehension that
my silence, when another member of the Court has delivered
his opinion, might be misconstrued."

Mr. Justice Story, Mr. Justice Thompson, Mr. Justice
Wayne, and Mr. Justice McKinley, concurred in these views
of the Chief Justice and of Mr. Justice McLean.

The next case to which I will briefly ask your Honors'
attention is that of Prigg vs. The Commonwealth of Pennsyl
vania, in the 16th of Peters, and, especially, to the parts of
the case that are referred to in my points. The Court is
familiar with the general doctrine of that case. It raised
before the Federal Court for decision the question, whether
the Constitutional clause which provided for the rendition of
fugitives from service, and the legislation under it, made the
subject one of exclusive Federal regulation, and whether the
statute of the State of Pennsylvania, and of course those of
New York and other States, within the same purview, were
constitutional. The exclusive authority of Federal Legisla
tion, in the premises, was fully established, and upon gen
eral reasons which established equally, that but for the
clause in the Constitution, the whole subject, even in respect
to escaped slaves, would have been absolutely and exclu
sively within the control of State authority.

Judge Story, delivering the opinion of the Court, says
(speaking of the fugitive slave clause of the Constitution):
"The last clause is that, the true interpretation whereof is
directly in judgment before us. Historically, it is well known,

THE LEMMON SLAVE CASE 45

that the object of this clause was to secure to the citizens of
the slaveholding States the complete right and title of owner
ship in their slaves, as property in every State of the Union
into which they might escape from the State where they
were held in servitude. The full recognition of this right
and title was indispensable to the security of this species of
property in all the slaveholding States; and, indeed, was so
vital to the preservation of their domestic interests and in
stitutions, that it cannot be doubted that it constituted a
fundamental article, without the adoption of which the
Union could not have been formed. Its true design was to
guard against the doctrines and principles prevalent in the
non-slaveholding States, by preventing them from inter
meddling with, or obstructing, or abolishing the rights of the
owners of slaves.

"By the general law of nations, no nation is bound to
recognize the state of slavery, as to foreign slaves found
within its territorial dominions, when it is in opposition to
its own policy and institutions, in favor of the subjects of
other nations where slavery is recognized. If it does it, it is
as a matter of comity, and not as a matter of international
right. The state of slavery is deemed to be a mere municipal
regulation, founded upon and limited to the range of the
territorial laws. This was fully recognized in Sommer sett's
case, Lofft's Rep. 1, s. c. 11 "State Trials," by Harg, 340,
s. c., 20 Ho well's "State Trials," 79; which was decided
before the American Revolution. It is manifest from this
consideration, that if the Constitution had not contained
this clause, every non-slaveholding State in the Union
would have been at liberty to have declared free all runaway
slaves coming within its limits, and to have given them en
tire immunity and protection against the claims of their
masters; a course which would have created the most bitter
animosities, and endangered perpetual strife between the
different States. The clause was, therefore, of the last

46 SPEECHES OF WILLIAM MAXWELL EVARTS

importance to the safety and security of the Southern States,
and could not have been surrendered by them without en
dangering their whole property in slaves. The clause was
accordingly adopted in the Constitution by the unanimous
consent of the framers of it; a proof at once of its intrinsic
and practical necessity."

Again, at pages 622 and 623, he says: "In the first place,
it is material to state (what has already been incidentally
hinted at) that the right to seize and retake fugitive slaves,
and the duty to deliver them up, in whatever State of the
Union they may be found, and of course the corresponding
power in Congress to use the appropriate means to enforce
the right and duty, derive their whole validity and obliga
tion exclusively from the Constitution of the United States,
and are there, for the first time, recognized and established
in that peculiar character. Before the adoption of the Con
stitution, no State had any power whatever over the sub
ject, except within its own territorial limits, and could not
bind the sovereignty or the legislation of other States. When
ever the right was acknowledged or the duty enforced in
any State, it was as a matter of comity and favor, and not
as a matter of strict moral, political, or international obliga
tion or duty. Under the Constitution it is recognized as an
absolute, positive right and duty, pervading the whole
Union with an equal and supreme force, uncontrolled and
uncontrollable by State sovereignty or State legislation. It
is, therefore, in a just sense a new and positive right, inde
pendent of comity, confined to no territorial limits, and
bounded by no State institutions or policy."

And, at page 625 he proceeds: "These are some of the
reasons, but by no means all, upon which we hold the power
of legislation on this subject to be exclusively in Congress.
To guard, however, against any possible misconstruction of
our views, it is proper to state, that we are by no means to
be understood in any manner whatsoever to doubt or to

THE LEMMON SLAVE CASE 47

interfere with the police power belonging to the States in
virtue of their general sovereignty. That police power ex
tends over all subjects within the territorial limits of the
States, and has never been conceded to the United States.
It is wholly distinguishable from the right and duty secured
by the provision now under consideration, which is exclu
sively derived from and secured by the Constitution of the
United States, and owes its whole efficacy thereto."

These opinions, included in the judgment as pronounced
by the Court, were assented to by all the judges who assisted
in the actual determination of the case.

The next case is that of Strader vs. Graham, in 10th How
ard, and was of this kind: Graham was a Kentucky slave
owner, and had permitted some of his slaves to cross over
into the State of Ohio, habitually, for the purpose of instruc
tion in music, designing to retain his property in them, and
to make this talent, thus to be cultivated, productive to
himself. The slaves receiving this instruction returned to
their master, and afterward fled from his service, making
their escape by means of a steamboat on the Ohio River.
By the law of Kentucky, in the protection of slave property
against such casualties as this, the proprietors of any steam
boat or other vessel upon the river, by means of which the
escape should be made, are made responsible to the slave
owners in an action for the value of the slave. An action
was brought, under this law, by Graham, against the owners
of the boat, upon which the escape had been made, in equity
to enforce a lien, given by the statute, against the boat. The
litigation, commenced in the State Court of Kentucky, ter
minated in a final judgment in the Court of last resort, in
favor of the slave-owner. From that decision an appeal was
taken under the 25th section of the Federal Judiciary act,
to the Supreme Court of the United States, the defence in
the Court below being on the ground, in part at least as a
good and sufficient one, that these slaves had become free

48 SPEECHES OF WILLIAM MAXWELL EVARTS

by their master's voluntary introduction of them into the
State of Ohio, and that the state of slavery thus dissolved
was incapable of reinstatement. The 25th section, as your
Honors know, carries up cases from the courts of last resort
in the States, when the decision is alleged to have involved
the consideration of a right secured under the Constitution
of the United States, and has resulted in a decision adverse
to that right.

The appellants in that case, on the question of freedom or
slavery, and the considerations it involved, stood precisely,
to illustrate the matter, as these appellants now before the
Court would stand in the Supreme Court of the United
States, if your Honors' judgment here should affirm the
judgment of the Court below, and an appeal should be prose
cuted from your judgment to the Supreme Court of the
United States, upon the ground that the right, to which your
decision had been adverse, was protected by the Federal
Constitution.

Now, the first and important question in all cases that are
carried into the Federal Judiciary by that method of appeal
is, whether the Appellate Court has jurisdiction of the cause.
In other words, whether the judgment below does contain
an adjudication upon any right under the Constitution of
the United States, and whether the determination has been
adverse to the right claimed, for both these elements must
be found in the decision of the Court of last resort of the
State, or there is no appeal to the Supreme Court of the
United States to reverse the judgment, although it may be
clearly erroneous. The direct point, therefore, of Federal
control over the civil status of persons within the States, was
raised in the case of Strader vs. Graham, as a question of
jurisdiction.

Chief Justice Taney, in delivering the opinion of the
Court, says: "The Louisville Chancery Court finally de
cided, that the negroes in question were his slaves, and that

THE LEMMON SLAVE CASE 49

he was entitled to recover $3,000 for his damages. And if
that sum was not paid by a certain day specified in the
decree, it directed that the steamboat should be sold for the
purpose of raising it, together with the costs of suit. This
decree was afterward affirmed in the Court of Appeals in
Kentucky, and the case is brought here by writ of error
upon that judgment.

"Much of the argument on the part of the plaintiffs in
error has been offered for the purpose of showing that the
judgment of the State Court was erroneous in deciding that
these negroes were slaves. And it insisted that their previ
ous employment in Ohio had made them free when they
returned to Kentucky.

"But this question is not before us. Every State has an
undoubted right to determine the status, or domestic and
social condition of the persons domiciled within its territory,
except in so far as the powers of the States in this respect are
restrained, or duties and obligations are imposed upon them
by the Constitution of the United States, and there is nothing
in the Constitution of the United States that can in any
degree control the law of Kentucky upon this subject. And
the condition of the negroes, therefore, as to freedom or
slavery, after their return, depended altogether upon the
laws of that State, and could not be influenced by the laws
of Ohio. It was exclusively in the power of Kentucky to
determine for itself whether their employment in another
State should or should not make them free on their return.
The Court of Appeals have determined, that by the laws of
the State they continue to be slaves. And their judgment
upon this point is, upon this writ of error, conclusive upon
this court, and we have no jurisdiction over it."

A comparison of this case with the Dred Scott decision,
and with the narrative of the litigation concerning Dred
Scott, as given in the report of that decision, will exhibit to
the Court the reason, as I suppose, that the Dred Scott con-

50 SPEECHES OF WILLIAM MAXWELL EVARTS

troversy was not brought into the Supreme Court of the
United States, by appeal from the judgment of the Court of
Missouri.

The litigation concerning the liberty of Dred Scott, gen
erally considered to have been a case made up for the pur
pose of raising certain questions for judicial determination,
started in the Courts of the State of Missouri, and had
reached final judgment in the last Court of that State,
adverse to the liberty of Scott. Scott claimed his liberty by
virtue of the Constitution of the United States, just as the
freedom of Kentucky negroes was claimed under the Con
stitution of the United States. Pending this litigation in
the Missouri case, the decision was made in the case of
Strader vs. Graham, dismissing the appeal under the 25th
section for want of jurisdiction. As this absolutely shut out
any consideration of the rights or doctrines on which the
freedom of Scott was supposed to have been gained, an
abandonment of the litigation in the State Courts of Miss
ouri followed, and a new litigation by Scott, in the Federal
Court, was commenced, whereby, through regular and gen
eral appeals from the Circuit Court to the Supreme Court of
the United States, the whole cause was brought up, and the
Court found itself, as it thought, at liberty to deliberate upon
some matters of grave and general import, political and
ethical, after they had disposed of the inquiry as to the free
dom of Dred Scott.

The case Ex parte Simmons (4 Wash. C. C. R. 396), to
which I have referred your Honors, seems a direct authority
upon the question before us.

There the question was, as to the freedom of a slave,
brought voluntarily by his master into the State of Pennsyl
vania, during the prevalence of laws there which permitted
the temporary residence of a master with his slave within
the jurisdiction of that State. The period allowed by the
statute being overpassed, the point was whether the slave

THE LEMMON SLAVE CASE 51

was entitled to his liberty, and Judge Washington decided
that he was.

I come now, if the Court please, to the decision in the
Dred Scott Case, the general doctrines of which are invoked
by the appellants here, as appears by the brief, though not
insisted upon orally in the argument, and my learned friend
has not called the attention of the Court to the particular
principles laid down in the case, upon which his reliance was
based. The general character of that case, and the exact
limit of judicial inquiry, that its facts presented, have been
already fully stated by my learned associate. An examina
tion of the opinion of Judge Nelson in that case will show
that he has confined himself to the precise inquiry that the
litigation properly presented for judicial determination, to
wit, whether Dred Scott was, in Missouri, and by its law, a
slave.

If he was a slave, it must be universally conceded that
he was not a citizen. As the jurisdiction in question, of the
Federal judiciary is confined to suits between citizens of
different States, the moment you put the plaintiff in the
condition of not being a citizen of any State, of having no
citizenship, and no civil rights whatever, of course there is no
jurisdiction, as the plaintiff's standing in Court rest, not
upon personality, but upon citizenship.

But the Court after deciding this, did, through many of
their judges, express opinions upon, and elaborately argue,
two very important general principles, one of a political
nature, and the other coming within the larger range of
general ethics and morality. One of these points was, that
the restrictive clause of the Missouri Compromise act was
unconstitutional and void. There was an opportunity for
discussion, though none for decision, on that point, by reason
of this fact. Although the question of Dred Scott's freedom
was fairly presented by a two years' residence with his master
in the State of Illinois— a residence, with the effect of which

52 SPEECHES OF WILLIAM MAXWELL EVARTS

the validity or invalidity of the Missouri Compromise act
had nothing to do — yet, as the question of the freedom of his
children and of his wife was also involved in the case, their
residence, upon which their claim of liberty rested, hap
pened to be within the portion of the Missouri territory
secured to freedom by the restriction of the Missouri Com
promise act, subject, of course, to its constitutional validity.
The other point of inquiry was purely historical and ethical,
and resulted in a very brief and summary deduction by the
learned Chief Justice, from the judicial and general annals
of the country, that the black men have no rights "that white
men are bound to respect." Now both these topics are
without any application to the real inquiry before this Court,
and I have no occasion to refer to the Dred Scott decision, as
a determination or discussion of the status of slavery in the
territories of the United States.

That subject is to be considered, either legislatively or
judicially, where it may properly arise. But I understand
the principles announced in the opinions of the judges who
concur in the judgment of the Court in the Dred Scott case,
to establish, in the fullest manner, the entire control of
State authority over the condition of all people within it,
and to re-affirm the decisions of the Supreme Court, to which
I have called your Honors' attention.

Thus, the Chief Justice, delivering the opinion of the
Court, says: "But there is another point in the case which
depends on State power and State law. And it is contended,
on the part of the plaintiff, that he is made free by being
taken to Rock Island, in the State of Illinois, independently
of his residence in the territory of the United States; and
being so made free, he was not again reduced to a state of
slavery, by being brought back to Missouri.

"Our notice of this part of the case will be very brief;
for the principle on which it depends was decided in this
Court, upon much consideration, in the case of Strader et

THE LEMMON SLAVE CASE 53

al. vs. Graham, reported in 10th Howard, 82. In that case,
the slaves had been taken from Kentucky to Ohio, with
the consent of the owner, and afterward brought back to
Kentucky. And this Court held that their status or condi
tion, as free or slave, depended upon the laws of Kentucky,
when they were brought back into that State, and not of
Ohio; and that this Court had no jurisdiction to revise the
judgment of a State Court upon its own laws. This was
the point directly before the Court, and the decision that
this Court had not jurisdiction turned on it, as will be seen
by the report of the case.

"So in this case, as Scott was a slave when taken into the
State of Illinois by his owner, and there held as such, and
brought back in that character, his status, as free or slave,
depended upon the laws of Missouri, and not of Illinois.

"It has, however, been urged in the argument, that by
the laws of Missouri he was free on his return, and that this
case, therefore, cannot be governed by the case of Strader
vs. Graham, where it appeared by the laws of Kentucky,
that the plaintiffs continued to be slaves on their return from
Ohio. But whatever doubts or opinions may at one time
have been entertained on this subject, we are satisfied upon
a careful examination of all the cases decided in the State
Courts of Missouri referred to, that it is now firmly settled
by the decisions of the highest Court in the State, that Scott
and his family upon their return were not free, but were, by
the laws of Missouri, the property of the defendant; and
that the Circuit Court of the United States had no jurisdic
tion, when, by the laws of the State, the plaintiff was a slave,
and not a citizen.

"Moreover, the plaintiff, it appears, brought a similar
action against the defendant in the State Court of Missouri,
claiming the freedom of himself and his family upon the
same grounds and the same evidence upon which he relies in
the case before the Court.

54 SPEECHES OF WILLIAM MAXWELL EVARTS

"The case was carried before the Supreme Court of the
State; was fully argued there; and that Court decided that
neither the plaintiff nor his family were entitled to freedom,
and were still the slaves of the defendant; and reversed the
judgment of the inferior State Court, which had given a
different decision.

"If the plaintiff supposed that this judgment of the State
Court was erroneous, and that this Court had jurisdiction
to revise and reverse it, the only mode by which he could
legally bring it before this Court, was by writ of error directed
to the Supreme Court of the State, requiring it to transmit
the record to this Court. If this had been done, it is too
plain for argument that the writ must have been dismissed
for want of jurisdiction in this Court. The case of Strader
and others vs. Graham, is directly in point; and, indeed, inde
pendent of any decision, the language of the 25th section of
the act of 1789 is too clear and precise to admit of contro
versy."

Is. it not entirely clear that the same principles of reason
ing and construction apply to this case, now before your
Honors, and that your judgment is not the subject of appeal
to the Supreme Court of the United States?

Mr. Justice Nelson, on the same point, says: "This ques
tion has been examined in the Courts of several of the slave-
holding States, and different opinions expressed and con
clusions arrived at. We shall hereafter refer to some of
them, and to the principles upon which they are founded.
Our opinion is, that the question is one which belongs to each
State to decide for itself, either by its legislature or courts of
justice; and hence, in respect to the case before us, to the
State of Missouri — a question exclusively of Missouri law,
and which, when determined by that State, it is the duty of
the Federal courts to follow.

"In other words, except in cases where the power is
restrained by the Constitution of the United States, the

THE LEMMON SLAVE CASE 55

law of the State is supreme over the subject of slavery within
its jurisdiction.

"As a practical illustration of the principle, we may
refer to the legislation of the free States in abolishing slavery,
and prohibiting its introduction into their territories.

"Confessedly, except as restrained by the Federal Con
stitution, they exercised, and rightfully, complete and abso
lute power over the subject. Upon what principle, then,
can it be denied to the State of Missouri? The power flows
from the sovereign character of the States of this Union;
sovereign not merely as respects the Federal Government —
except as they have consented to its limitation — but sover
eign as respects each other. Whether, therefore, the State
of Missouri will recognize or give effect to the laws of Illi
nois within her territories on the subject of slavery, is a
question for her to determine. Nor is there any constitu
tional power in this government that can rightfully control
her."

Now, certainly, if this be good law in favor of slavery, it is
good law in favor of liberty. The status, slave or free, is the
same status for consideration and determination, whether
the judgment be in favor of slavery, or in favor of liberty.
And when, in behalf of the free State of Illinois, it is claimed
that it so changes the status of any slave, who may come
within its borders, that thereafter nothing but positive
re-enslavement can deprive him of his condition of freedom,
and the judgment is, that Missouri must determine that
for itself; when Virginia claims that slaves held lawfully,
within its limits, may still retain that condition in the State
of New York, must not the decision be that New York must
determine that for itself, by its own inherent sovereignty,
uncontrolled by the Federal Constitution, and that the
Supreme Court at Washington has no jurisdiction to reverse
the judgment of this high tribunal?

56 SPEECHES OF WILLIAM MAXWELL EVARTS

I read now from the Opinion of Mr. Justice Campbell :

"The principles which this Court has pronounced con
demn the pretension then made on behalf of the legislative
department. In Groves vs. Slaughter (15 Pet.), the Chief
Justice said: 'The power over this subject is exclusively
with the several States, and each of them has a right to
decide for itself whether it will or will not allow persons of
this description to be brought within its limits.' Justice
McLean said: 'The Constitution of the United States oper
ates alike in all the States, and one State has the same power
over the subject of slavery as every other State/ In Pol
lard's Lessee vs. Hagan (3 How. 212), the Court says: 'The
United States have no constitutional capacity to exercise
municipal jurisdiction, sovereignty, or eminent domain,
within the limits of a State or elsewhere, except in cases
where it is delegated, and the Court denies the faculty of
the Federal Government to add to its powers by treaty or
compact."

So much for the Dred Scott decision, and the opinions
of the learned Judges who concurred in the judgment then
pronounced. I have cited passages from their opinions
above; the whole tenor of the dissenting opinions of Mr.
Justice McLean and Mr. Justice Curtis of course carrying
these principles to even further results.

The passenger case, the State of New York vs. M iln (in the
llth of Peters) will be found fully to sustain these views.
The later passenger cases, which fill a great part of the 7th
of Howard, are much relied upon by the learned counsel for
the appellants, and references to them are largely spread
upon his points, with the view of showing that this intro
duction of persons into the States, does, in some sort, fall
within the commercial power of Congress, and that the
doctrine of these cases, which held invalid the Law of New
York, and the similar Law of Massachusetts, imposing a tax
upon the introduction of passengers into those States re-

THE LEMMON SLAVE CASE 57

spectively, has a bearing upon the question at bar. Those
cases were decided by a Court, as nearly divided as a Court
of an uneven number can be — five Judges holding the stat
utes to be unconstitutional, but solely upon the ground that
they were, in effect and form, a tax upon commerce. The
five Judges who concurred in the opinion were Justices
McLean, Catron, McKinley, Wayne, and Grier. Those
who dissented were the Chief Justice and Justices Nelson,
Woodbury, and Daniel.

But your Honors will perceive that the majority of the
Court was made by the adhesion of Justice McLean to the
decision. The Chief Justice manfully contended that
the decision in Groves vs. Slaughter had foreclosed the Court
from considering any question, even as a question of taxa
tion, touching the regulation or prevention of the introduc
tion of any persons into the States, this being a most sensi
tive point with the slaveholding States. Mr. Justice Mc
Lean, however, joined in the opinion that it was a tax upon
commerce, and, in that light alone, regarded the State laws
as an unconstitutional interference with the commercial
power of Congress. The criticism which I have made upon
the composition of the majority of the Court in the instance
of Justice McLean, will apply to Justice Wayne and the
other members of the Court from the slaveholding States,
who never have been doubtful in their opinions or judgments
upon this exclusive control, by the Slave States, of the whole
subject of slavery.

A reference to the opinions of the majority of the Court in
these cases will show, that it is solely as taxation upon com
merce, imposed upon a vessel as it arrives, with its freight of
passengers on board, that interference with the commercial
power of the Federal Constitution can be rightfully charged
upon the State legislation then brought in question. Your
Honors are aware that the modification of our passenger
laws, made in consequence of the decisions I have cited,

58 SPEECHES OF WILLIAM MAXWELL EVARTS

have accomplished, in effect, and in result, substantially
the same security and indemnity to this State, against the
introduction of burdensome emigrants, as the obnoxious
laws produced.

The method now taken exacts a bond that each passenger
shall not become chargeable upon the State, and then, by a
general provision, permits in lieu of this bond a moderate
commutation in money. The Chief Justice in his dissenting
opinion in these cases, reiterates his opinions so plainly and
decisively expressed in the cases which I have cited.

The Chief Justice says: "The first inquiry is, whether,
under the Constitution of the United States, the Federal
Government has the power to compel the several States to
receive, and suffer to remain in association with its citizens,
every person or class of persons whom it may be the policy
or the pleasure of the United States to admit. In my judg
ment, the question lies at the foundation of the controversy
in this case. I do not mean to say that the General Gov
ernment have, by treaty or act of Congress, required the
State of Massachusetts to permit the aliens in question to
land. I think there is no treaty or act of Congress which
can be justly so construed. But it is not necessary to exam
ine that question until we have first inquired whether Con
gress can lawfully exercise such a power, and whether the
States are bound to submit to it. For if the people of the
several States of the Union reserved to themselves the power
of expelling from their borders any person or class of persons,
whom it might deem dangerous to its peace, or likely to
produce a physical or moral evil among its citizens, then any
treaty or law of Congress invading this right, and authoriz
ing the introduction of any person or description of persons
against the consent of the State, would be an usurpation
of power which this Court could neither recognize nor
enforce.

"I had supposed this question not now open to dispute.

THE LEMMON SLAVE CASE 59

It was distinctly decided in Holmes vs. Jemison (14 Pet. 540) ;
in Groves vs. Slaughter (15 Pet. 449); and in Prigg vs. The
Commonwealth of Pennsylvania (16 Peters, 539).

"If these cases are to stand, the right of the States is
undoubted.

"If the State has the power to determine whether the
persons objected to shall remain in the State in association
with its citizens, it must, as an incident inseparably con
nected with it, have the right also to determine who shall
enter. Indeed, in the case of Groves vs. Slaughter, the Mis
sissippi Constitution prohibited the entry of the objection
able persons, and the opinions of the Court throughout
treat the exercise of this power as being the same with that
of expelling them after they have entered.

"Neither can this be a concurrent power, and whether it
belongs to the General or to the State Government, the
sovereignty which possesses the right must in its exercise
be altogether independent of the other. If the United
States have the power, then any legislation by the State in
conflict with a treaty or act of Congress would be void.
And if the States possess it, then any act on the subject by
the General Government, in conflict with the State law,
would also be void, and this Court bound to disregard it.
It must be paramount and absolute in the sovereignty which
possesses it. A concurrent and equal power in the United
States and the States as to who should and who should not
be permitted to reside in a State, would be a direct conflict of
powers repugnant to each other, continually thwarting and
defeating its exercise by either, and could result in nothing
but disorder and confusion.

"I think it, therefore, to be very clear, both upon princi
ple and the authority of adjudged cases, that the several
States have a right to remove from among their people, and
to prevent from entering the State, any person, or class or
description of persons, whom it may deem dangerous or in-

60 SPEECHES OF WILLIAM MAXWELL EVARTS

jurious to the interest and welfare of its citizens; and that
the State has the exclusive right to determine, in its sound
discretion, whether the danger does or does not exist, free
from the control of the General Government."

This review of the judgments of the Federal Court shows,
that in whatever points the judgment and doctrines of the
Supreme Court of the United States, as recently promulgated,
may be supposed to be unfavorable to personal liberty, they
cannot be charged with being at all inconsiderate of the vital
and essential point, that within the States the civil and
social condition of all persons is exclusively governed by
State authority, excepting only in the precise case of a
fugitive from labor. In that case the inquiry arises not
under the commercial clause, nor under the privilege and
immunity clause, but under the express clause applicable,
in terms, to the subject.

Before passing from this topic, I ought, perhaps, to notice
one suggestion in regard to the construction of this privilege
and immunity clause, that to give its apparent and natural
meaning involves an absurdity. It is said for a citizen of
Virginia to claim, by virtue of that clause, in the State of
New York, the full privileges of a citizen of New York,
would include the political rights of a citizen in the govern
ment of the State. The very statement of this difficulty
refutes it. The clause confers or secures no privileges or
immunities, except so long as the sojourner remains a citizen
of the State whence he comes. Its operation ceases the
moment the citizenship of the State into which he has come
is assumed. It cannot, therefore, clothe the sojourner with
rights, the exercise of which transmutes him, by the mere act,
into a citizen of the new State, and, by the same act, divests
him of his original citizenship. No one can be a citizen of
two independent sovereignties at the same time. The re
quired limitation is found in the terms used, and in the
nature of the subject to which they are applied.

THE LEMMON SLAVE CASE 61

I now beg to ask the attention of the Court to some cases
in the Virginia reports of much interest on this subject, of the
power of a sovereign State over the status of slavery within it,
and of the limitation of the condition of slavery to that form
and extent alone, in which it is supported by the positive
law of the State. The case of Butt vs. Rachel, found in 4
Munford's Reports, page 209, was decided in 1813, in the
Court of Appeals of Virginia. The case did not arise under
the Constitution of the United States, but affirms the gen
eral doctrine, that no State, even if it has a status of slavery
within it, and recognizes such condition in its population as
lawful and politic, by comity, recognizes the lawfulness within
its borders of any other than that very slavery which its
own law creates and upholds. The note of the case is as
follows:

"A native American brought into Virginia since the year
1691, could not lawfully be held in slavery here; notwith
standing such Indian was a slave in the country from which
he or she was brought."

Now, this slave introduced into Virginia, and concerning
whose status this litigation was raised, was brought from the
island of Jamaica, and was lawfully there a slave in the
hands of his master. The master coming into Virginia with
the slave, claimed the right of holding him in slavery there.
Your Honors will not fail to notice how differently Virginia
stood in relation to this subject of slavery, from the State of
New York. Virginia did not proscribe the enslavement of
Indians as an unlawful source of slavery; on the contrary,
as your Honors have been informed by the learned counsel
for the appellants, the comprehension of slavery in Virginia
embraced the native tribes; many of their number became
slaves, and now, their descendants form a portion of the
slave population of Virginia. '„;

But, in 1691, the colonial government of Virginia passed
a law, not, in terms, abolishing the system of Indian slavery,

62 SPEECHES OF WILLIAM MAXWELL EVARTS

but a law permitting free trade with the Indians. This
statute was immediately seized upon by the Courts of
Justice of Virginia, as involving the necessary legal intend-
ment, that the enslavement of these people, that were thus
recognized as lawful parties to commercial intercourse, was
unlawful, such recognition being inconsistent with the
absolute denial of personal rights, which lay at the founda
tion of slavery.

Here, then, was a question of the hospitality of the laws
and policy of Virginia, a slaveholding community, to this
condition, in the person of a slave brought within it from
another slaveholding community. Certainly none of the
reasons for aversion to, and proscription of, slavery, per se,
could very well apply, on the part of Virginia, against per
mitting this imported slave of Indian origin to continue a
slave in Virginia.

But what was the question? It was, whether there was
any positive municipal law of Virginia, whereby such a
status of slavery could be affirmatively maintained, in re
spect of such a person, and the Court decided that there was
not, and that this man, a slave in Jamaica, was free in Vir
ginia. No slaves but her own could breathe the air of
Virginia! The application may seem strange; nevertheless,
upon the soundest principles of jurisprudence, of the slave,
as well as of the free, States, the judgment was correct.

The cause was argued by Mr..Wickham and Mr. Wirt, two
of the ablest lawyers which our country has produced. Mr.
Wirt, arguing for the freedom of the alleged slave, says:
"Since 1691 no Indian could be held in bondage. I do not
contend merely that Indians could not be reduced into
slavery, but they could not be held as slaves. This was the
plain consequence of 'free and open trade with all Indians
whatsoever, at all times and in all places.' It was not
conferring any boon upon them, but merely acknowledging
the rights which God and nature gave."

THE LEMMON SLAVE CASE 6S

Mr. Wickham in answer seems to have recognized fully
the general rules of jurisprudence for which I have occasion
to contend. He says: "Mr. Wirt contends that Indians
are, naturally, entitled to freedom. So are negroes; but
this does not prevent their being slaves. I admit the right
to make them slaves must depend on positive institution.
What I contend for is, that all persons to whom the general
provisions of our slave laws apply, may be slaves here,
provided they were slaves by the laws of the country from
which they were brought hither."

In the 2nd of Henning and Munford, in a case decided in
1808, the same question arose and was thus disposed of in
the judgment of the Court. "No native American Indian
brought into Virginia since the year 1691, could, under any
circumstances, be lawfully made a slave."

The remaining consideration, if the Court please, to which
I shall ask your attention, and which will require from me
some brief illustration, concerns the law of nature and of
nations, as bearing upon the doctrine of comity. For,
after all, a support for this hospitality to slavery must be
looked for from some other source than in the Constitution
or laws of the United States, or in the decisions of the
Supreme Court of the United States. No appeal can be
addressed to this Court, on which to rest their judicial tol
eration of slavery, except, first, that the State by its authen
tic positive legislation has not proscribed and prohibited
the temporary allowance of this condition within our ter
ritory; or, second, that nothing in the public and general
law, or in the customs or institutions of this State, has this
effect.

This brings me to the third point of my brief, to which I
respectfully ask the attention of the Court.

The citation from Story's "Conflict of Laws" is to the
effect that the whole judicial inquiry open to any court is
simply, whether in the laws and institutions, social and

64 SPEECHES OF WILLIAM MAXWELL EVARTS

civil, of the State can be found any such principles as make
it possible or proper, that the rights claimed to be exercised
during their stay within the State, by transient or other
residents, not subjects or citizens, should be permitted. If
the Court find no positive, clear, certain, and explicit ex
pression of the public will through the authentic organs of
its manifestation, it may then explore the regions of general
jurisprudence and social ethics, to determine whether the
desired comity can be extended, without injury to the
policy of the State. The reference to Vattel, under the
same point gives the view of that eminent publicist upon the
moral personality of a political society. He says, "Nations
or States are bodies politic, societies of men united together
for the purpose of promoting their mutual safety and ad
vantage, by the joint efforts of their combined strength.
Such a society has her affairs and her interests; she deliberates
and takes resolutions in common, thus becoming a moral
person, who possesses an understanding and a will peculiar
to herself, and is susceptible of obligations and rights."

Your inquiry then is, whether this moral person, the
State of New York, having an understanding and will of its
own, after deliberation, and taking resolutions, has or has not
thought fit to manifest hostility to the institution of slavery.

The learned counsel for the State of Virginia says, that
the resolution of 1857, passed by the legislature of this
State, is not to be taken into account in determining the
rights of these parties, or the policy and purpose of the
State of New York on the subject of slavery. Well, as far
as I can see, this resolution does not really go beyond the
scope and effect of the legislation of 1830, as modified by the
amendment of 1841, to which I have called the attention of
the Court.

This resolution is certainly very moderate in its phrase, to
have drawn upon it so severe an epithet from the learned
counsel in his points, as to characterize it as "a treasonable

THE LEMMON SLAVE CASE 65

resolution"; a phrase which, when used otherwise than in the
newspapers, or at the hustings, may be supposed to have
some definite moral, if not legal, force.

This resolution is simply to this effect: that slavery shall
not be allowed within our borders, in any form, or under
any pretense, or for any time, however short. The second
section of the act of 1830 expressly provides, that nothing
in the first section thereof (the section prohibiting slavery
already quoted), shall be deemed "to discharge from service
any person held in slavery, in any State of the United States,
under the laws thereof, who shall escape into this State."
This, certainly, is a loyal and respectful recognition of the
binding obligation of the Federal Constitution in respect
to the rendition of fugitive slaves. In this state of our law,
where is the treason in the resolution of 1857? How can
there be treason without traitors? Who are the traitors?
Is this a bold figure of speech, or does the learned counsel,
speaking as the representative, here, of the State of Vir
ginia, mean to be understood as imputing treason in act,
or word, or thought, to the honorable senators and repre
sentatives who joined in that legislative resolution? Is it
just, is it suitable to charge a law, or a resolution of this
State, with being treasonable, because it does not accord with
the learned counsel's construction of the meaning and effect
of the Federal Constitution?

Were the laws, by which we taxed passengers, treasonable
laws, because the Supreme Court of the United States held
that they were unconstitutional? Is a resolution which,
only by a most extravagant construction, can, in its own
terms, be tortured into a conflict with the fugitive slave
clause of the Constitution of the United States, and when
there stands upon our statute book an express exception of
the case covered by that clause — is such a resolution to be
charged with treason? I take it not, and that the epithet
can only be excused as an unguarded expression.

66 SPEECHES OF WILLIAM MAXWELL EVARTS

But we say, that if the statute cited has not the con
struction which we claim for it, and if the resolution of
1857, so far as the case at bar is concerned, cannot be re
garded as indicating to this Court what the disposition of
this State in respect to slavery is, we say, without and aside
from such manifest enactment of the sovereign will in the
premises, as matter of general reason and universal authority,
the status of slavery is never upheld in the case of strangers,
resident or in transit, when and where the domestic laws
reject and suppress such status, as a civil condition or social
relation.

The same reasons of justice and policy which forbid the
sanction of law and the aid of public force to the proscribed
status among our own population, forbid them in the case of
strangers within our own territory.

The status of slavery is not a natural relation, but is
contrary to nature, and at every moment it subsists it is
an ever new and active violation of the law of nature.

Citations from the "Law of Nature," I am aware, are
open to the objection of vagueness and impossibility of
verification, and a grave English judge is said once to have
discomforted a rhetorical advocate, who appealed fre
quently to the "book of nature" for his authority, by asking
for the volume and page. I am fortunate in my present
appeal to the "law of nature," in finding a literal and written
statement of its proscription of slavery in a document, of
which I make profert, and of whose "absolute verity,"
as a record, the counsel for the State of Virginia can hardly
make question; I mean, to be sure, the Constitution of the
State of Virginia. It is true the portion of this instrument
which I shall read, labors under the double opprobrium of
having been originally written when men's minds were in
flamed with the love of liberty, at the period of 1776, and of
bearing the impress of the same pen which drafted the great
charter of our national existence, the Declaration of In-

THE LEMMON SLAVE CASE 67

dependence. But the force of these aspersions upon its
credit, let us hope, is somewhat broken by its readoption
in 1829 and again so late as 1851.

In the Bill of Rights of the Constitution of Virginia, and
as its first article we find it thus written: "1. That all men
are, by nature, equally free and independent, and have certain
inherent rights, of which, when they enter into a state of
society, they cannot, by any compact, deprive or divest
their posterity: namely, the enjoyment of life and liberty,
with the means of acquiring and possessing property, and
pursuing and obtaining happiness and safety."

I may be permitted to observe, in passing, that I find in
this Virginia "Bill of Rights," a most distinct statement of
the doctrine I have asserted, as to the absolute and exclusive
supremacy of its own laws in every State. The text reads
as follows: "14. That the people have the right of uniform
government; and therefore that no government separate
from, or independent of, the Government of Virginia, ought
to be erected or established within the limits thereof."

That, I take it, means that the laws or customs of no other
State are to control the status of any person in Virginia,
for any length of time, or under any circumstances, but
uniformity must prevail in the laws and in their adminis
tration.

I find, too, in this instrument the best evidence, that the
statesmen of Virginia felt no such contempt for "general
principles" and their practical influence in the conduct of
society, in the framing of government, the enacting and ad
ministration of laws, as her learned counsel, here, has made
so prominent. The Virginians were always doctrinarians,
and liked to see things squarely set forth in black and white.
The "Bill of Rights" thus teaches the true basis of freedom
and the best hopes for its security. "15. That no free
government, or the blessing of liberty, can be preserved to
any people, but by a firm adherence to justice, moderation,

68 SPEECHES OF WILLIAM MAXWELL EVARTS

temperance, frugality and virtue, and by a frequent recur
rence to fundamental principles."

But to return to the argument : In dealing with this ques
tion of comity, we must look with some definiteness at this
institution of slavery which seeks, however transiently and
casually, the tolerance of our society, the support of our law.
We must look slavery square in the face. Certainly, no man
could be braver than the learned counsel in the moral, social,
juridical, and legal principles which he avows. Yet, I notice
that, upon his points, and in his speech, he a little prefers to
glide off from the name "slaves" to that of "servants," and
from "slavery" to "pupilage."

Now, if we are to determine whether it consists with the
spirit of our institutions, with the purity of our justice, to
tolerate and enforce, at all, the system of slavery, let us see
what it is.

We all agree, I suppose, that slavery, that is, chattel
slavery, the institution in question, finds neither origin nor
home in any nation, or in any system of jurisprudence, gov
erned by the common law. Among barbarous nations,
without law or system, slavery exists, and is maintained by
mere force. Among civilized nations it is the creature of
the civil law. From an elementary book of acknowledged
authority, Taylor's "Elements of the Civil Law" (page 429),
I beg to read a concise view of the characteristic traits of
this institution. "Slaves were held pro nullis, pro mortuis,
pro quadrupedibus." That is to say they were looked
upon as no persons; as those in whom human personality was
dead; as beasts. "They had no head in the State, no name,
title or register; they were not capable of being injured;
nor could they take by purchase or descent; they had no
heirs and therefore could make no will; exclusive of what
was called their peculium, whatever they acquired was their
master's; they could not plead, nor be pleaded for, but were
excluded from all civil concerns whatever; they could not

THE LEMMON SLAVE CASE 69

claim the indulgence of absence reipublicae causa; they were
not entitled to the rights and considerations of matrimony,
and, therefore, had no relief in case of adultery; nor were
they proper objects of cognation or affinity, but of quasi
cognation only; they could be sold, transferred or pawned
as goods or personal estate, for goods they were and as such
they were esteemed."

The laws of the slaveholding States, while they concur
in degrading slaves from persons into things, differ in the
rules of conveyance and of succession pertaining to them as
property. In Louisiana and in Kentucky they are governed,
in these respects, by the rules pertaining to real estate. In
most, if not all, of the other States, they are, in all respects,
chattels; as, for instance, in South Carolina, where the law
declares, "Slaves shall be deemed, sold, taken, reputed, and
adjudged in law to be chattels personal in the hands of their
owners and possessors, and their executors, administrators
and assigns, to all intents, constructions and purposes what
soever."

(2 Brev. Dig. 229. Prince's Dig. 446. Thompson's

183.)

Such, then, is slavery, the status now under consideration.
Such it continues to be, in all essential traits, while it pre
serves its identity. It needs positive statutes to relieve
it materially from any of these odious traits, to raise the
slave into any other condition than that of being no person.

When, therefore, we say that slavery is "just, benign and
beneficent," if we have due regard to the appropriate use of
words, we mean that that condition, that relation of man
to man, is "just, benign and beneficent."

Horrible it is, says the learned counsel, if it be main
tained between men of the same race — lamentable, if it be
maintained toward men like the Indian, for whom some
sentiment may be exhibited; but it is "just, benign and
beneficent," if applied to the negro.

70 SPEECHES OF WILLIAM MAXWELL EVARTS

This is the condition of slavery, concerning whose toler
ance within this State your Honors are to determine, whether
the system and order of society in this State permit you,
as judges and magistrates to entertain, to maintain, to en
force it. I know of no reported case, in which this true
character of slavery, in its just, legal lineaments, is more
fairly and candidly considered, in a Slave State, or in a
Free State, than in the case of The State vs. Mann,
£d Devereux's Reports, page 268.

The Supreme Court of North Carolina there gives a very
careful and deliberate judgment, upon the essential relations
between master and slave as established by their laws, as a
matter of judicial limitation, and recognition. In deliver
ing the opinion, Judge Ruffin, one of the ablest judges of
that State, or of this country, was obliged to say what the
nature of slavery was, in respect to the right of the master,
and the subjection of the slave. How this case arose and how
necessary it was to meet the questions discussed, the Court
will perceive from the very brief narrative which prefaces
the case.

"The defendant was indicted for an assault and battery
upon Lydia, the slave of one Elizabeth Jones. On the trial
it appeared that the defendant had hired the slave for a
year — that during the term the slave had committed some
small offence, for which the defendant undertook to chastise
her — that while in the act of so doing, the slave ran off,
whereupon the defendant called upon her to stop, which
being refused, he shot at and wounded her.

"His Honor, Judge Daniel, charged the jury, that if they
believed the punishment inflicted by the defendant was
cruel and unwarrantable, and disproportionate to the offence
committed by the slave, that in law the defendant was
guilty, as he had only a special property in the slave. A
verdict was returned for the State, and the defendant ap
pealed."

THE LEMMON SLAVE CASE 71

Ruffin, Judge. "A judge cannot but lament, when such
cases as the present are brought into judgment.

"It is impossible that the reasons on which they go can
be appreciated, but where institutions similar to our own
exist, and are thoroughly understood. The struggle, too,
in the judge's own breast, between the feelings of the man
and the duty of the magistrate, is a severe one, presenting
strong temptation to put aside such questions if it be pos
sible. It is useless however to complain of things inherent
in our political state. And it is criminal in a court to avoid
any responsibility which the laws impose. With whatever
reluctance therefore it is done, the Court is compelled to
express an opinion upon the extent of the dominion of the
master over the slave in North Carolina.

"The indictment charges a battery upon Lydia, a slave of
Elizabeth Jones. Upon the face of the indictment, the
case is the same as the State vs. Hale, 2d Hawks, 582. No
fault is found with the rule then adopted; nor would be, if
it were now open. But it is not open; for the question, as it
relates to a battery on a slave by a stranger, is considered as
settled by that case. But the evidence makes this a dif
ferent case. Here a slave had been hired by the defendant,
and was in his possession, and the battery was committed
during the period of hiring.

"With the liabilities of the hirer to the general owner for
an injury permanently impairing the value of the slave,
no rule now laid down is intended to interfere. That is
left upon the general doctrine of bailment.

"The query here is, whether a cruel and unreasonable
battery on a slave, by the hirer, is indictable. The judge
below instructed the jury that it is.

"Upon the general question, whether the owner is an
swerable, criminaliter, for a battery upon his own slave, or
other exercise of authority or force, not forbidden by statute,
he Court entertains but little doubt. That he is so liable

72 SPEECHES OF WILLIAM MAXWELL EVARTS

has never yet been decided; nor, as far as is known, been
hitherto contended. There have been no prosecutions of
the sort. The established habit and uniform custom of the
country in this respect is the best evidence of the portion
of power, deemed by the whole community requisite to the
preservation of the master's dominion. If we thought dif
ferently, we could not set our notions in array against the
judgment of everybody else, and say that this or that au
thority may be safely lopped off. This has indeed been
assimilated at the bar to the other domestic relations, and
arguments drawn from the well established principles which
confer and restrain the authority of the parent over the
child, the tutor over the pupil, the master over the ap
prentice, have been pressed on us. The Court does not
recognize their application. There is no likeness between
the cases. They are in opposition to each other, and there
is an impassable gulf between them. The difference is that
which exists between freedom and slavery, and a greater
cannot be imagined. In the one, the end in view is the
happiness of the youth, born to equal rights with that gov
ernor, on whom the duty devolves of training the young to
usefulness, in a station which he is afterward to assume
among freemen. To such an end, and with such an object,
moral and intellectual instruction seem the natural means;
and for the most part they are found to suffice. Moderate
force is superadded only to make the others effectual. If
that fail, it is better to leave the party to his own head
strong passions and the ultimate correction of the law, than
to allow it to be immoderately inflicted by a private person.
With slavery it is far otherwise. The end is the profit of
the master, his security and the public safety; the subject,
one doomed, in his own person and his posterity, to live
without knowledge, and without the capacity to make any
thing his own, and to toil that another may reap the fruits.
What moral considerations shall be addressed to such a

THE LEMMON SLAVE CASE 73

being, to convince him of what it is impossible but that the
most stupid must feel and know can never be true — that
he is thus to labor upon a principle of natural duty, or for
the sake of his own personal happiness. Such services can
only be expected from one who has no will of his own; who
surrenders his will in implicit obedience to that of another.
Such obedience is the consequence only of uncontrolled
authority over the body. There is nothing else which can
operate to produce the effect. The power of the master
must be absolute, to render the submission of the slave per
fect. I most freely confess my sense of the harshness of this
proposition; I feel it as deeply as any man can. And as a
principle of moral right, every person in his retirement must
repudiate it. But in the actual condition of things it must
be so. There is no remedy. This discipline belongs to the
state of slavery. They cannot be disunited without abro
gating at once the rights of the master, and absolving the
slave from his subjection. It constitutes the curse of
slavery to both the bond and free portions of our population.
But it is inherent in the relation of master and slave.

"That there may be particular instances of cruelty and
barbarity, where in conscience the law might properly inter
fere, is most probable. The difficulty is to determine where
a court may properly begin. Merely in the abstract it may
well be asked, which power of the master accords with right.
The answer will probably sweep away all of them. But
we cannot look at the master in that light. The truth is,
that we are forbidden to enter upon a chain of general rea
soning on the subject. We cannot allow the right of the
master to be brought into discussion in the courts of justice.
The slave, to remain a slave, must be made sensible that
there is no appeal from his master; that his power is in no
instance usurped; but is conferred by the laws of man, at
least, if not by the laws of God.

"I repeat that I would gladly have avoided this ungrateful

74 SPEECHES OF WILLIAM MAXWELL EVARTS

question. But being brought to it, the Court is compelled
to declare, that while slavery exists amongst us in its present
state, or until it shall seem fit to the Legislature to interpose
express enactments to the contrary, it will be the imperative
duty of the judges to recognize the full dominion of the
owner over the slave, except where the exercise of it is for
bidden by statute. And this we do upon the ground, that
this dominion is essential to the value of slaves as property,
to the security of the master and the public tranquility,
greatly dependent upon their subordination, and in fine, as
most effectually securing the general protection and com
fort of the slaves themselves.

"Per Curiam. Let the judgment below be reversed and
judgment entered for the defendant."

Now, this is a very gloomy view of slavery. It is how
ever the only view that is permissible of this institution, as
a matter of legal power and legal subjection between the
parties to it, and it comes precisely to this, that the slave,
before the law, has no rights at all, no more than any mere
thing, that, by the law of nature, is subject to the dominion
of man. If, indeed, the slave be cruelly injured, as matter
of his master's property, then an action for damages will lie,
governed, as the Court says, by the "law of bailment."
If the State as matter of public policy, chooses to make acts
committed in respect to the slave, criminal, it may do so,
just as it may acts of malicious mischief in respect of an in
animate substance; as it may protect trees planted in the
highway against depredation or injury, or as it may pro
tect public grounds from intrusion or defilement. In such
cases an indictment under the statute will lie, because the
State has so declared. But there is no recognition or com
prehension of the slave, as respects rights or remedies for him
self, within any of the moral, social and human relations
that govern duties or rights between person and person.
When, therefore, we are asked to be hospitable in feeling, in

THE LEMMON SLAVE CASE 75

speech, or in law, to slavery we must take it as it is, and with
the traits which are inseparable from it, and which, as the
Court, in the case cited, say, cannot be abrogated without
destroying the relation between master and slave, for they
exist in the relation itself.

Now, I say, that all history and all jurisprudence show
that slavery originated in the mere predominance of physical
force of one man over another. That, I take it, must be
conceded. It is equally indisputable that it is continued
by mere predominance of physical force, or of social force,
in the shape of municipal law. Whenever this force fails
at any stage, then the status falls, for it has nothing to rest
upon. When the stranger comes within our territory, and
seeks to retain in slavery a person that he claims to be subject
to his dominion, he must either rely upon his own personal
force, or he must appeal to some municipal law, which sus
tains that relation by the pressure of its force. When such
a claim is made in this State, our answer is that he has
brought with him no system of municipal law, to be a weapon
and a shield to this status, and he finds no such system here.
Where does he find it? We have no such system. We know
of no such relations. His appeal to force against nature, to
law against justice, to might against right, is vain, and his
captive is free.

In Neal vs. Farmer (9 Georgia Reports, page 555), the
Court will find a distinct adoption of this view, that the
title of the slave-owner to his slave is of the kind that I have
stated, derived from, and maintained by, force. Indeed,
that the planter's title is but the title of the original captor.
The action was brought by Nancy Farmer against William
Neal to recover damages for the killing of a negro slave,
the property of Mrs. Farmer. On the trial, the plaintiff
proved the killing and closed. The jury found a verdict for
plaintiff for $825. An objection was made to the legality of
the verdict on the ground that, in cases of felony the civil

76 SPEECHES OF WILLIAM MAXWELL EVARTS

remedy is suspended until the offender is prosecuted to
conviction or acquittal. This principle was admitted, but
the Court below held that the killing of a slave was not a
felony at common law, and refused a new trial. The ques
tion of law was brought before the Supreme Court by writ
of error.

The Court held, "In cases of felony, the civil remedy is
suspended until the offender is prosecuted to conviction or
acquittal. It is not felony in Georgia, by the common law,
to kill a slave, and the only legal restraint upon the power
of a master over the person of the slave in Georgia, is such as is
imposed by statute.'9

At page 580 of the report, the learned Court proceeds:
"Licensed to hold slave property, the Georgia planter held
the slave as a chattel; and whence did he derive title?
Either directly from the slave trader, or from those who
held under him, and he from the slave captor in Africa.
The property in the slave of the planter, became, thus,
just the property of the original captor. In the absence of
any statutory limitation on that property he holds it as un
qualifiedly as the first proprietor held it, and his title and
the extent of his property were sanctioned by the usage of
nations which had grown into a law.

"There is no sensible account to be given of property in
slaves here but this. What were then the rights of the
African Chief in the slave which he had captured in war?
The slave was his to sell, or to give, or to kill. "

The law of nations built upon the law of nature, has
adopted this same view of the status of slavery, as resting on
force against right, and finding no support outside of the
jurisdiction of the municipal law which establishes it.

Now it is very easy to say, as is said by the learned counsel
in his points, that we are not justified in prohibiting the
slave-owner from any State of the Union, from bringing
his slaves hither, and it may be urged that there is no disturb-

THE LEMMON SLAVE CASE 77

ance of our public peace, and no encroachment upon the
public morals, or upon social and political principles of this
community, in allowing the slave-owner to bring his slaves
hither, in allowing them to remain here, and in allowing him
to take them away.

But this is not a correct statement of the proposition. It
is not a question of the officious interference of our law with
the agreeing dispositions of the master and his slaves for the
maintenance of the relation. The question in form and
substance is, what is the duty of our law, what its authority,
what are its powers and processes, what the means and the
principles of enforcing it, in case this amicable agreement be
tween master and slave shall, at any point of the contin
uance of the status in our community, cease. This was the
point with Lord Mansfield in the case of Sommersett. Lord
Mansfield, if he has been sainted by philanthropists, as the
learned counsel has said, for his devotion to liberty, as
exhibited in the case of Sommersett, very little deserves
such peculiar veneration. Lord Mansfield tried as hard as
a judge ever did to avoid deciding that case; he was held as
firmly by habit, by education, by principle, by all his rela
tions with society, to what would be called, in the phrase of
our day, a conservative and property view of the subject, as
any man could be. It is amusing to follow the report in the
State Trials, and see how the argument was postponed,
from time to time, on a suggestion thrown out by the Court,
of the immense influence on property that the decision in
the particular case would have. If your Honors please, at
the time the point was raised before Lord Mansfield, there
were within the realm of England fourteen thousand slaves,
brought from the plantations and held, without a suspicion
of their right by their masters, under the professional opinions
of the eminent lawyers, Sir Charles York and Lord Talbot,
that the Virginia negro might be lawfully held as a slave
within the realm of England. But, notwithstanding all the

78 SPEECHES OF WILLIAM MAXWELL EVARTS

suggestions of the Court, for some reason or other, it was
not thought useful or proper to cover up, or to buy up this
question of personal liberty on English soil and under Eng
lish law. Then, Lord Mansfield, being as my learned friend
has suggested, a mere common law judge in a mere common
law court, being the Chief Justice of England, a great magis
trate, the head of the Court to which was committed the
care and protection of the personal rights of the community,
as established and regulated and defended by the law of the
realm, was obliged, by the mere compulsion of his reason, to
decide that case as he did. There is no poetry, no sentiment,
no philanthropy, no zeal, no desire to become a subject of
saint-hood with future generations, to be found in his deci
sion. Not one word of any of these. It was extorted in
submission to the great powers of his own reason. He says,
most truly, that the difficulty is, that if slavery be intro
duced and sustained at all, it must be introduced and
sustained according to its length and breadth, with all its
incidents and results, and if our law recognizes it, then we
must adopt and administer some system of positive mun
icipal law, external to our own, for we have no such
domestic status in our own society. Therefore, says Lord
Mansfield, if the merchants will not settle this case, if no
appeal to Parliament for legislation on the subject will be
made, and if I must decide it, I do not know of any law of
England which permits the master of this vessel, on which
the slave Sommersett is embarked, to hold him in confine
ment, and he must be set free. And the Court below was
asked to say in this State, "does the law of New York furnish
any ground and authority by which it can permit, or sustain,
or enforce the restraint upon the liberty of these Virginia
negroes, in the city of New York, practiced by this man and
woman, Mr. and Mrs. Lemmon?"

Now, it will readily be seen, as suggested (under subdivi
sion D of my third point), that this consequence must follow;

THE LEMMON SLAVE CASE 79

for the idea that our law can have a mere let alone policy,
can leave these people to manage the affair among them
selves, is precluded the moment the process of Habeas Cor
pus has brought them within the control of the magistrate.
Certainly, we have no law to prohibit the master and mis
tress from coming here with their faithful servants, from re
maining here peaceably under this tie of fidelity, and leaving
here under the same tie of fidelity.

If there is no writ of Habeas Corpus sued out, if no action
of false imprisonment is brought, no complaint for assault
and battery is made, and nothing comes up for judicial in
quiry, then this contented "pupilage" — this relation of
"honorable slaveholder to devoted and attached slaves" is
not interfered with by us. When liberty was awarded to
these eight persons they were not prohibited from going back
to No. 8 Carlisle street, to the dominion of the Lemmons, or
from embarking on a steamship for a voyage to Texas. All
the judgment declares is, that, if you are restrained by force,
and against y OUT will, there is no such restraint allowed by law.

The question is, as Lord Mansfield says, what the law
shall do, when its force and authority are invoked. It is
the same practical difficulty that arose under Dogberry's
instructions to the watch: "This is your charge; you shall
comprehend all vagrom men. ' You are to bid any man stand,
in the prince's name. " "How, " inquires the watch not im
pertinently, "how, if he will not stand?" Dogberry bravely
meets the emergency. "Why, then take no note of him,
but let him go; and presently call the rest of the watch to
gether, and thank God you are rid of a knave." Whoever,
in the name of our law, undertakes to maintain a slave's
subjection, will find no wiser counsel than Dogberry's to
follow, if the slave objects to his authority.

The train of consequences which must follow from the
recognition of slavery by our law, as a status within our
territory, I have illustrated by a few instances or examples,

80 SPEECHES OF WILLIAM MAXWELL EVARTS

under subdivision D of my third point. I will not enlarge
upon them. Certainly I take no pleasure in repeating them
for any purposes of sarcasm or invective.

I pass now to a subject, considered in distinct propositions
upon my points, and concerning which the course of my
learned friend's argument requires a few observations from
me. I refer to the proposition, that the rule of comity
which permits the transit of strangers and their property
through a friendly State, does not require our laws to uphold
the relation of slave-owner and slave, within our State, be
tween strangers. By that general system of jurisprudence
made up of certain principles held in common by all civil
ized States, known as the "Law of Nations," in one of the
senses in which the term is used by publicists, men are not
the subject of property. This proposition the learned
counsel has met by the argument, that property does not
exist, at all, by the law of nature, but is wholly the growth of
civil society and the creature of positive or municipal law.
If he means by this argument, that the title of an individual
to a particular item or subject of property, is not completely
ascertained or established by the law of nature; that I do
not make title to the house in which I live, or the books which
I read, by the law of nature, I have no dispute with him.
But, if he means, that the distinction between man as the
owner, and things as the subjects, of property, does not arise
by the law of nature, he is, I think, entirely in error. I
suppose that the relation of man, as Lord over all ranks of the
brute creation and all inanimate things in this world, is
derived from nature, as by direct grant from the Almighty
Creator of the world and all things therein; that by this
law, the relations of persons to things, which is but another
name for the institution of property, is a natural relation.
If it is not a natural relation — if it does not spring out of the
creation of man, and his being placed on this earth by his
Maker, I do not understand its origin.

THE LEMMON SLAVE CASE 81

When we accord to strangers a transit through out terri
tory, with property, we limit that right to what is the sub
ject of property by the law of nature, unless our municipal
law recognizes property other than such as the law of nature
embraces.

But further, the learned counsel has argued, that, because
we recognize, under the general principles of comity, certain
rights that grow out of the condition of slavery, under the
foreign municipal system, which accredits and supports it,
we are involved in the obligation of not imputing immorality
to that relation, and, that, upon the same reasons or induce
ments of comity, by which we recognize these rights thus
grown up, we must enforce and maintain the condition itself
in our own municipal system. If the Court please, we
ought not to be called upon to confound propositions nat
urally so distinct as these, and which, I respectfully submit,
are justly discriminated upon my printed brief, under sub
division F of the third point. We recognize, unquestion
ably, the establishment of slavery in Virginia as the lawful
origin of certain rights, and open our Courts to the main
tenance and enforcement of those rights. As the learned
counsel has said, if upon the sale of a slave in Virginia a
promissory note be taken by the vendor, and suit brought
upon it in our Courts, the action would be sustained; the
security would not be avoided as founded upon an immoral
or illegal consideration. Nay, further than that. Suppose
the relation of master and slave, once lawfully subsisting in
Virginia, to have ceased and the slave to have become free*
by manumission, or otherwise; suppose the freedman to
have become an inhabitant of our State, and finding his
master accessible to process here, to have sued him for wages,
for the service in Virginia, while a slave, alleging that he had
performed labor and had been paid nothing for it. By our
law no such action would lie. No debt accrued by the law
of Virginia, and that law must give the right, before our law

82 SPEECHES OF WILLIAM MAXWELL EVARTS

can afford a remedy. We might suppose the relation to have
terminated advantageously to the master, the slave having
been a charge and burden upon the master beyond any serv
ice he could render. The slave, become free, and found
here in the possession of property, could the master sue him
here for his support, during the time that, without being
remunerated by his labor, he had maintained, fed, clothed
and cared for him? Certainly, no such action could be sus
tained. Apply these principles to the ordinary domestic
relations, and there is no mystery in this distinction. We
recognize a foreign marriage, good, according to the laws
of the community in which it is celebrated, as giving title to
property here, in this State, real or personal, dependent upon
that relation. When a husband and wife, united under a for
eign marriage, come here, we recognize their relation as hus
band and wife, with such traits and consequences as accord
with our laws. But suppose a man to have married a wife
in Massachusetts, and that by the law of Massachusetts,
while the parties continue there, the husband has the sup
posed common law right to beat his wife with a stick no
bigger than his thumb; suppose this a trait of the con
jugal relation, a marital right in Massachusetts. Now, the
claim of the learned counsel is, not only that we should ac
cord to the relation of marriage arising under the law of
Massachusetts, consequences in respect of property here,
which belong to the relation, but, that, when husband and
wife come here, as residents or, at least, in transitu, we should
allow this special marital right to continue, and be exercised
under our law here, although unlawful between husband
and wife by our laws. The absurdity of such a claim strikes
everyone. If the husband pleaded, as a defence against
punishment here, that by the law of Massachusetts, where
the marriage was instituted, the violent acts were permitted,
no Court would tolerate so idle and frivolous a suggestion.
The relation of master and apprentice presents a nearer

THE LEMMON SLAVE CASE 83

analogy to that of slavery than any civil relation now rec
ognized by our law. It is wholly the creature of positive
statute, and we take no notice whatever of the relation, of
the same name and substance, established by the laws of the
other States of the Union, as giving any personal status within
our territory. A master and his apprentice coming here
from Connecticut, in the judgment of our law, no longer
hold that relation to each other. Our law furnishes no aid
to the master's authority, no compulsion upon the appren
tice's obedience.

The learned counsel, in his plea for your indulgence to
the institution of chattel slavery, has thought to disparage
the great names in the British judiciary which have pro
scribed that condition as unworthy to be tolerated by their
laws, by holding up to odium the system of white slavery,
which, under the name of villenage, long ago subsisted in
England.

However nearly the traits of this servitude may, at one
time or another, have resembled the system of slavery
which finds support and favor in parts of our country,
there was always this feature of hope and promise of the
amelioration and final extirpation of villenage, which will be
sought in vain in the system of slavery in our States. Vil
lenage was within the comprehension and subject always
to the influences of the common law, which, indeed, is but
another name for common right and general justice. No
system of injustice and of force brought within the grasp of
the principles of the common law, but must, sooner or later,
be vanquished and exterminated. The heaviest gloom which
rests upon the system of chattel slavery comes from this
very fact, that it is outlawed from all these influences; that
reason and justice, duty and right, as they reject it, are re
jected by it, and find no inlet through the proof armor of
force and interest in which it is cased.

The learned counsel has remarked upon the silent and

84 SPEECHES OF WILLIAM MAXWELL EVARTS

gradual retreat of villenage before the growing power of
justice and civilization, till it finally disappears from Eng
lish history, one scarcely knows when. It wore out, he says,
without bloodshed, without violence, without civil or social
disturbance or disquiet. It is not strictly true that villenage
was never the cause of serious civil disorder in England.
Jack Cade's rebellion and Wat Tyler's insurrection were,
really, servile insurrections to which intolerable oppression
had urged this abject class. But be this as it may, the
learned counsel's complacency, first in the long endurance
of villenage, and, second, in its peaceful abrogation, has not
restrained him from a sarcastic suggestion, that if there had
been in England "a sect of abolitionists" hostile to villenage,
that system would have survived to our day. If the ten
dency and effect of the teaching of this "sect of abolitionists "
be, indeed, to confirm and perpetuate the system of slavery,
it should attract the favor rather than the wrath of one, who,
like my learned friend, thinks slavery to be "just, benign,
beneficent, not inconsistent with strict justice, and pure
benevolence."

But I can relieve the learned counsel from any doubt or
uncertainty as to the efficient influences which caused the
decay and final extinction of villenage in England. They
were the common law and the Christian religion.

The common law, having, as I stated, comprehended villen
age within its principles and processes, showed it no quarter,
but by every act and contrivance reduced it to narrower and
narrower limits. It admitted no intendments in its favor,
gave every presumption against it; knew no mode to make
a villein of a freeman, a hundred to convert a villein into a
freeman. Mr. Hargreave, in his celebrated argument in
Sommersett's case, gives a just account of these successful
efforts of the common law. "Another cause," says this
eminent lawyer, "which greatly contributed to the extinc
tion of villenage, was the discouragement of it by courts

THE LEMMON SLAVE CASE 85

of justice. They always presumed in favor of liberty,
throwing the 'onus probandi ' upon the lord, as well in the
writ of Homine Replegiando, where the villein was plaintiff,
as in the Nativo Habendo, where he was defendant. Non
suit of the lord after appearance in the Nativo Habendo,
which was the writ for asserting the title of slavery, was a
bar to another Nativo Habendo, and a perpetual enfranchise
ment; but nonsuit of the villein after appearance in a
Libertate Probanda, which was one of the writs for asserting
the claim of liberty against the lord, was no bar to another
writ of the like kind. If two plaintiffs joined in a Nativo
Habendo, nonsuit of one was a nonsuit of both; but it was
otherwise in a Libertate Probanda. The lord could not
prosecute for more than two villeins in one Nativo Habendo ;
but any number of villeins of the same blood might join
in one Libertate Probanda. Manumissions were inferred
from the slightest circumstances of mistake or negligence in
the lord, from every act or omission which legal refinement
could strain into an acknowledgment of the villein's liberty.
If the lord vested the ownership of lands in the villein,
received homage from him, or gave a bond to him, he was
enfranchised. Suffering the villein to be on a jury, to enter
into religion and be professed or to stay a year and a day
in ancient demesne without claim, were enfranchisements.
Bringing ordinary actions against him, joining with him in
actions, answering to his action without protestation of
villenage, imparling in them or assenting to his imparlance,
or suffering him to be vouched without counter-pleading the
voucher, were also enfranchisements by implication of law.
Most of the constructive manumissions I have mentioned
were the received law, even in the reign of the first Edward.
I have been the more particular in enumerating these instances
of extraordinary favor to liberty, because the anxiety of our
ancestors to emancipate the ancient villeins so well accounts
for the establishment of any rules of law calculated to obstruct

86 SPEECHES OF WILLIAM MAXWELL EVARTS

the introduction of a new stock. It was natural, that the same
opinions, which influenced to discountenance the former,
should lead to the prevention of the latter. "

The other operative agency in the gradual extinction of the
offensive system of villenage was the influence of the Christian
religion, under the auspices of the church of Rome, then, as
well, the national church of England. Macaulay thus ascribes
the chief merit in this beneficent social reform to the Romish
priesthood. "It is remarkable that the two greatest and
most salutary social revolutions which have taken place in
England, that revolution, which, in the thirteenth century,
put an end to the tyranny of nation over nation, and that
revolution which, a few generations later, put an end to the
property of man in man, were silently and imperceptibly
effected. They struck contemporary observers with no sur
prise, and have received from historians a very scanty meas
ure of attention. They were brought about neither by
legislative regulation nor by physical force. Moral causes
noiselessly effaced, first the distinction between Norman
and Saxon, and then the distinction between master and
slave. None can venture to fix the precise moment at
which either distinction ceased. Some faint traces of the
old Norman feeling might perhaps have been found late in
the fourteenth century. Some faint traces of the institu
tion of villenage were detected by the curious so late as the
days of the Stuarts; nor has that institution ever, to this
hour, been abolished by statute.

"It would be most unjust not to acknowledge that the
chief agent in these two deliverances was religion ; and it may,
perhaps, be doubted whether a purer religion might not have
been found a less efficient agent. The benevolent spirit of
the Christian morality is undoubtedly adverse to distinc
tions of caste. But to the church of Rome such distinctions
are peculiarly odious, for they are incompatible with other
distinctions which are essential to her system." "How

THE LEMMON SLAVE CASE 87

great a part the Catholic ecclesiastics had in the abolition
of villenage, we learn from the unexceptionable testimony
of Sir Thomas Smith, one of the ablest counsellors of Eliza
beth. When the dying slaveholder asked for the last sacra
ments, his spiritual attendants regularly adjured him, as he
loved his soul, to emancipate his brethren, for whom Christ
had died. So successfully had the church used her formid
able machinery, that before the Reformation came, she had
enfranchised almost all the bondmen in the kingdom, except
her own, who, to do her justice, seem to have been very ten
derly treated." (Hist. Eng., vol. 1, pp. 20, 21.)

These influences, then, of law and of religion were the
efficient agents in extirpating villenage, a civil condition
which, so long as it subsisted, was a reproach to the liberty
of England, and to the principles of the common law. Why
should the learned counsel hope to heap opprobrium upon
these principles of justice and religion, when invoked in favor
of an inferior race, and against a system of slavery so much
more oppressive than the system of villenage, because our
people who have espoused and maintain views opposed to
this present system of wrong against right, and force against
justice and nature, are the offspring of the British nation,
which, in the early stages of its civilization, had such a sys
tem, or a similar system? If these, our ancestors, and we
had nourished and developed it, if we had extended it, if
we had made it the basis of prosperity in England and this
country, if we had boasted its justice and benevolence, if we
had extended it so as to embrace more and more of the
nation, if we had made the law astute and even violent to
support and maintain it, if we had discouraged every in-
tendment against it, and if it was now approved and ap
plauded as an institution which the civilization and Chris
tianity of the present day accept, then we might well be
accused of inconsistency, in being hostile to chattel slavery
in the negro race. But, it seems to me, that the influences

88 SPEECHES OF WILLIAM MAXWELL EVARTS

of the common law of England, which we inherit, and of the
Christian religion, as vindicated in the absolute extirpation
of villenage from the social system of England, by peaceful
means, will suffer no dishonor by performing the same serv
ice, and impressing upon the judiciary of this State the
same principles of absolute inhospitality to negro slavery
within our borders, even for the briefest period, or over the
most narrow space.

If the Court please, the judgment below, the reasons for
which are very tersely and properly expressed by the Court
which pronounced it, is either to be affirmed or reversed.
You are to declare the law of this State. If you declare that
slavery may be introduced here, there is no appeal from
your decision. If you hold that it may not be introduced
here, and affirm the judgment of the Court below, an appeal
may carry the question to the Supreme Court of the United
States. That such appeal must be dismissed by that Supreme
tribunal, for want of jurisdiction of the subject, I confidently
submit, must follow from the authorities and the principles I
have had the honor to present to this Court.

The result of your judgment cannot be doubtful, if I
am right in the opinion that it is constrained by no para
mount control of Federal power. It is as true now, as in
the time of Littleton and of Coke, that he shall be adjudged
guilty of impiety toward God and of cruelty toward man,
who does not favor liberty; and what they, in their day,
declared of the law of England, your decision shall pronounce
as the law of New York, that, IN EVERY CASE, it shows
favor to liberty.

I have, your Honors will bear witness, confined myself in
this discussion, to mere juridical inquiries, and have strictly
abstained from any mention of popular or political consid
erations. I should not, now, think myself justified in any
allusions to those considerations, but for the very distinct
suggestion of the learned counsel, that there was a momentous

THE LEMMON SLAVE CASE 89

pressure upon the freedom of your judgments in this matter,
growing out of a certain formidable, and yet, as he thought,
inevitable, result to follow from a decision of this question,
adversely to the views he has had occasion to present. He
has named to you as the parties to this controversy, the
State of New York and the State of Virginia — one, first in
population and in wealth, and greatest in the living energies
of her people — the other, richest in the memories of the past,
and most powerful in the voices of her dead. I am not
aware that the State of New York, in any public act or
declaration, has failed, to any degree, of that respect for
Virginia, which belongs to her as a sister State, or as a
political community. Nor do I know or think that any
citizens of this State fall at all behind the learned counsel
in his affection and veneration for the great men in the
history of Virginia, by whose careers of public service and of
public honors, she has gained the proud title of the Mother
of Presidents. Nor do I know that that portion of our
people, its great majority, who, with their veneration for
Washington, and Jefferson, and Madison, and Henry, and
Wythe, and Mason, cherish and defend the opinions upon
slavery which those statesmen held, honor them or Virginia
less than those who raise statues of brass or of marble to
their memory, and follow their principles with contumely
and persecution. I do not know that an imputation can
fairly be thrown upon any part of our community, of having
less respect and affection for our common country and the
Federal Government than is claimed here, by the learned
counsel, on behalf of those who, with himself, espouse the
views concerning the institution of slavery, which he has
presented to the Court. Yet I understand him distinctly
to insist here, that, unless this Court shall reverse this judg
ment, or unless a Court of paramount authority, that can
control still further the question, shall reverse it, our Federal
system of government is actually in danger — that indeed, it

90 SPEECHES OF WILLIAM MAXWELL EVARTS

cannot long exist, without both a judicial and popular rec
ognition of the legal universality of slavery throughout our
country.

If it please the Court, I am unable to discern in the sub
ject itself, or in the aspect of the political affairs of the
country, any grounds for these alarming suggestions, which
should disturb, for a moment, your Honors' deliberations
or determinations on the subject before you. I may be per
mitted to say, however, that if the safety and protection of
this local, domestic institution of slavery, in the communities
where it is cherished, must ingraft upon our Federal juris
prudence the doctrine that the Federal Constitution, by its
own vigor, plants upon the virgin soil of our common terri
tories the growth of chattel slavery — thus putting to an
open shame the wisdom and the patriotism of its framers —
if they must coerce, by the despotism of violence and terror,
into its support at home, their whole white population; if
they must exact from the Free States a license and a toler
ance for what reasons of conscience and of policy have
purged from their own society, and subjugate to this oppres
sion the moral freedom of their citizens; if the institution of
slavery, for its local safety and protection, is to press this
issue, step by step, to these results; if such folly and madness
shall prevail, then, by possibility, a catastrophe may happen:
this catastrophe will be, not the overthrow of the general
and constituted liberties of this great nation, not the sub
version of our common government, but the destruction of
this institution, local and limited, which will have provoked
a contest with the great forces of liberty and justice, which
it cannot maintain, and must yield in a conflict which it will,
then, be too late to repress.

II

ADDRESS TO THE JURY IN SUMMING UP FOR
THE PROSECUTION IN THE CASE OF THE
UNITED STATES AGAINST THE OFFICERS
AND CREW OF THE SCHOONER SAVANNAH.
(THE SAVANNAH PRIVATEERS)

NOTE

At the very beginning of the Civil War the government of the
Confederate States issued letters of marque to privateers fitted out
for the purpose of carrying on warfare against the commercial
marine of the United States . The schooner * * Savannah' ' of Charles
ton, mounting one pivot gun, was one of these privateers, and for
tified with the authority of a letter of marque issued by the Con
federate States, began its depredation upon the commerce of the
United States.

On the 2nd of June, 1861, the "Savannah" sailed from the port
of Charleston and on the following day, after having captured a
brig, laden with a cargo of sugar, was herself taken as prize by
the United States Brig of War Perry and delivered to the com
mander of the United States blockading squadron off Charleston.
The officers and crew of the "Savannah" were taken in custody by
the United States naval authorities and in the course of the month
of June delivered to the United States marshal for the Southern
District of New York. Upon the application of the District At
torney a warrant was issued under which the officers and crew of
the "Savannah" were committed for trial.

On the 16th of the following month the Federal Grand Jury,
sitting in New York, brought in an indictment against them for
robbery on the high seas — in short for piracy.

On October 23, 1861, the case came on for trial before Judges
Nelson and Shipman. Mr. E. Delafield Smith was the United
States District Attorney and he had as associate counsel, Mr.
Evarts, Mr. Samuel Blatchford and Mr. Ethan Allen. The
officers and crew of the "Savannah" were thirteen in number, one
of whom, however, was used as a witness for the prosecution and
against him a nolle prosequi was entered. The twelve remaining

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92 SPEECHES OF WILLIAM MAXWELL EVARTS

prisoners were represented by Mr. Larocque, the elder, Mr. Daniel
Lord, Mr. James T. Brady, Mr. Algernon S. Sullivan, Mr. Joseph
S. Dukes, Mr. Isaac Davega and Mr. Maurice Mayer.

The trial continued for eight days, resulting in a disagreement
of the jury. Its conduct on the part of the prosecution was
wholly in the hands of the District Attorney and Mr. Evarts.
All of the counsel for the prisoners participated actively in the
trial either in arguing points of law or in opening and summing
up to the jury. Mr. Larocque opened to the jury for the defense,
and Messrs. Dukes, Sullivan, Davega and Brady all addressed
the jury in summing up. On the close of Mr. Brady's argument —
October 29 — Mr. Evarts began the closing argument to the jury
for the prosecution, completing it on the following day.

The attitude of the Government towards the "insurrection"
in the southern slaveholding States, withholding as it did every
recognition of the Confederate States as a separate political body,
with national traits and functions entitled to cognizance, was
calculated to bring into the case many questions which had formed
the topics of political discussion for the previous decade. Thus
in the defence of the prisoners to sustain the authority under which
they had acted, their counsel, an array of great lawyers, introduced
the question of the right of secession as it bore upon the title to
recognition of the Confederate States. How vast a field of history
and of political science and philosophy was thus explored and,
with great skill and learning, spread before the jury, one may
readily imagine.

In all this broad debate the duty devolved upon Mr. Evarts
to sustain the Government, and a recent writer has said, "His
argument in this memorable case is really a philosophical dis
cussion of the bases of republican government."

Mr. Evarts, himself, in writing to an intimate friend at the time,
speaks of his participation in the case, saying, "The trial was quite
a laborious and responsible one for me, and I was retained for the
Government only the day before the trial began. I had seven
counsel with seven separate speeches against me, and had to
reply (1) for the Prosecution, (2) for the Government, (3) for the
Republican party, (4) for the free States, (5) for the Nation, (6)
for the principles of Constitutional Government, (7) for the human
race, and all this though I had a fee only for one of these interests."

ADDRESS TO THE JURY IN THE CASE OF THE
SAVANNAH PRIVATEERS

May it please your Honors, and Gentlemen of the Jury:

A trial in a Court of Justice is a trial of many things
besides the prisoners at the bar. It is a trial of the strength
of the laws, of the power of the Government, of the duty of
the citizen, of the fidelity to conscience and the intelligence
of the Jury. It is a trial of those great principles of faith,
of duty, of law, of civil society, that distinguish the condi
tion of civilization from that of barbarism. I know no
better instance of the distinction between a civilized, in
structed, Christian people, and a rude and barbarous nation,
than that which is shown in the assertions of right where
might and violence and the rage of passion in physical contest
determine everything, and this last sober, discreet, patient,
intelligent, authorized, faithful, scrupulous, conscientious
investigation, under the lights of all that intelligence with
which God has favored any of us; under that instruction
which belongs to the learned and accredited expounders of
the law of an established free Government; under the aid of,
and yet not misled by, the genius or eloquence of advocates
on either side.

But, after all, the controlling dominion of duty to the men
before you in the persons of the prisoners, to the whole
community around you, and to the great nation for which
you now discharge here a vital function for its permanence
and its safety, — your duty to the laws and the Government
of your country (which, giving its protection, requires your
allegiance, and finds its last and final resting-place, both
here and in England, in the verdicts of Juries), — your duty
to yourselves, — requires you to recognize yourselves not
only as members of civil society, but as children of the

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94 SPEECHES OF WILLIAM MAXWELL EVARTS

"Father of an Infinite Majesty," and amenable to His
last judgment for your acts. Can any of us, then, fail to
feel, even more fully than we can express, that sympathies,
affections, passions, sentiments, prejudices, hopes, fears,
feelings and responsibilities of others than ourselves are
banished at once and forever, as we enter the threshold of
such an inquiry as this, and never return to us until we have
passed from this sacred precinct, and, with our hands on our
breasts and our eyes on the ground, can humbly hope that
we have done our duty and our whole duty?

Something was said to you, gentlemen of the Jury, of the
unwonted circumstances of the prosecution, by the learned
counsel who, many days ago, and with an impressiveness that
has not yet passed away from your memory, opened on
behalf of the prisoners the course of this defence.

He said to you that the number of those whose fate, for
life or for death, hangs on your verdict, is equal to your own
— hinting a ready suggestion that that divided responsibility
by which twelve men may sometimes shelter themselves, in
weighing in the balance the life of a single man, is not yours.
Gentlemen, let us understand how much of force and effect
there is in the suggestion, and how truly and to what extent
the responsibility of a Jury may be said to include this issue
of life and death. In the first place, as jurymen, you have
no share or responsibility in the wisdom or the justice of
those laws which you are called upon to administer. If
there be defects in them — if they have something of that
force and severity which is necessary for the maintenance
of Government and the protection of peace and property,
and of life on the high seas — you have had no share in
their enactment, and have no charge, at your hands, of their
enforcement. In the next place, you have no responsibility of
any kind in regard to the discretion of the representatives of
this Government in the course which they choose to take,
as to whether they will prosecute or leave unprosecuted.

THE SAVANNAH PRIVATEERS 95

You do not, within the limits of the inquiry presented to
you, dispose of the question, why others have not been
presented to you; nor may that which has been done in a
case not before you, serve as a guide for the subject sub
mitted to your consideration. So, too, you have no re
sponsibility of any kind concerning the course or views of
the law which this tribunal may give for your guidance.
The Court does not make the law, but Congress does. The
Court declares the law as enacted by the Government, and
the Jury finds the facts — giving every scrutiny, every patient
investigation, every favor for life, and every reasonable
doubt as to the facts, to the prisoners. Having disposed of
that duty, as sober, intelligent and faithful men, graduating
your attention only by the gravity of the inquiry, you have
no further responsibility. But I need not say to you, gentle
men, that if any civilized government is to have control of
the subject of piracy — if pirates are to be brought within
the jurisdiction of the criminal law — the very nature of the
crime involves the fact that its successful prosecution neces
sarily requires that considerable numbers shall be engaged in
it. I am quite certain that, if my learned friends had found
in the circumstances of this case nothing which removed it
out of the category of the heinous crime of private plunder
at sea, exposing property and life, and breaking up com
merce, they would have found nothing in the fact that a
ship's crew was brought in for trial, and that the number
of that crew amounted to twelve men, that should be pressed
to the disturbance of your serene judgment, in any dis
position of the case. Now, gentlemen, let us look a little
into the nature of the crime, and into the condition of the
law.

The penalty of the crime of piracy or robbery at sea
stands on our statute books heavier than the penalty as
signed for a similar crime committed on land — which is, in
fact, similar, so far as concerns its being an act of depreda-

96 SPEECHES OF WILLIAM MAXWELL EVARTS

tion. It may be said, and it is often argued, that, when the
guilt of two offences is equal, society transcends its right
and duty when it draws a distinction in its punishments;
and it may be said, as has been fully argued to you — at least,
by implication, in the course of this case — that the whole
duty and the whole responsibility of civil Governments, in
the administration of criminal law and the punishment of
crime, has to do with the retributive vengeance, as it were,
on the moral guilt of the prisoner. Now, gentlemen, I
need not say to you, who are experienced at least in the
common inquiries concerning governments and their duties,
that, as a mere naked and separate consideration for pun
ishing moral guilt, Government leaves, or should leave, ven
geance where it belongs — to Him who searches the heart
and punishes according to its secret intents — drawing no
distinction between the wicked purpose which fully plans,
and the final act which executes that purpose. The great,
the main duty — the great, the main right — of civil society,
in the exercise of its dominion over the liberties, lives, and
property of its subjects, is the good of the public, in the
prevention, the check, the discouragement, the suppression
of crime. And I am sure that there is scarcely one of us
who, if guilt, if fault, if vice could be left to the punishment
of conscience and the responsibility of the last and great as
size, without prejudice to society, without injury to the
good of others, without, indeed, being a danger and a de
struction to all the peace, the happiness, and the safety of
communities, would not readily lay aside all his share in the
vindictive punishments of guilty men. But society, framed
in the form and for the purposes of Government, finds, alas !
that this tribunal of conscience, and this last and future
accountability of another world, is inadequate to its pro
tection against wickedness and crime in this.

You will find, therefore, in all, even the most enlightened
and most humane codes of laws, that some necessary atten-

THE SAVANNAH PRIVATEERS 97

tion is paid to the predominant interest which society has in
preventing crime. The very great difficulty of detecting it,
the circumstances of secrecy, and the chances of escape on
the part of the criminal, are considerations which enter into
the distribution of its penalties. You will find, in a highly
commercial community, like that of England, and to some
extent — although, I am glad to say, with much less severity
— in our own, which is also a highly commercial community,
that frauds against property, frauds against trade, frauds
in the nature of counterfeiting and forgery, and all those
peaceful and not violent but yet pernicious interferences
with the health and necessary activity of our everyday life,
require the infliction of severe penalties for what, when you
take up the particular elements of the crime, seems to have
but little of the force, and but little of the depth of a serious
moral delinquency.

The severity of the penalties for passing counterfeit
money is inflicted upon the poor and ignorant who, in so
small a matter as a coin of slight value, knowingly and intel
ligently, under even the strongest impulses of poverty, are
engaged in the offence. Now, therefore, when commercial
nations have been brought to the consideration of what
their enactments on the subject of piracy shall be, they
have taken into account that the very offence itself re
quires that its commission should be outside of the active
and efficient protection of civil society — that the com
mission of the crime involves, on the part of the criminals,
a fixed, deliberate determination and preparation — and that
the circumstances under which the victims, either in respect
of their property or of their lives, are exposed to these ag
gressions, are such as to make it a part of the probable
course of the crime, that the most serious evils and the
deepest wounds may be inflicted. Now, when a crime, not
condemned in ethics or humanity, and which the positive
enactments of the law have made highly penal, yet contains

98 SPEECHES OF WILLIAM MAXWELL EVARTS

within itself circumstances that appeal very strongly to what
ever authority or magistrate has rightful control of the sub
ject for a special exemption, and special remission, and special
concession from the penalty of the law, where and upon what
principles does a wise and just, a humane and benignant Gov
ernment, dispose of that question? I agree that, if crimes
which the good of society requires to be subjected to harsh
penalties, must stand, always and irrevocably, upon the
mere behest of judicial sentence, there would be found an
oppression and a cruelty in some respects, that a community
having a conscientious adherence to right and humanity
would scarcely tolerate. Where, then, does it wisely be
stow all the responsibility, and give all the power that be
longs to this adjustment, according to the particular cir
cumstances of the moral and personal guilt, which must be
necessary, and is always conceded? Why, confessedly, to
the pardoning power, alluded to on one side or the other —
though chiefly on the part of the prisoners' counsel — in the
course of this trial. Now, you will perceive, at once, what
the difference is between a Court, or a Jury, or a public
prosecuting officer, yielding to particular circumstances of
actual or of general qualification of a crime charged, — so
that the law shall be thwarted, and the certainty and direct
ness of judicial trial and sentence be made the sport of
sympathy, or of casual or personal influences, — and placing
the pardoning power where it shall be governed by the
particular circumstances of each case, so that its exercise
shall have no influence in breaking down the authority of
law, or in disturbing the certainty, directness, and com
pleteness of judicial rules. For, it is the very nature of a
pardon, — committed to the Chief Magistrate of the Federal
Union in cases of which this Court has jurisdiction, and to
the Chief Magistrate of every State in the Union in cases
of which the State tribunals take cognizance, — that it is a
recognition of the law, and of the sentence of the law, and

THE SAVANNAH PRIVATEERS 99

leaves the laws undisturbed, the rules for the guidance of
men unaffected, the power and strength of the Government
unweakened, the force of the judiciary unparalyzed, and yet
disposes of each case in a way that is just, or if not just,
is humane and clement, where the pardon is exercised.

Now, gentlemen, I shall say nothing more on the subject
of pardon. It is a thing with which I have nothing to do —
with which this learned Court has nothing to do — with which
you, as jurymen, have nothing to do — beyond the fact that
this beneficent Government of ours has not omitted from
its arrangement, in the administration of its penal laws, this
divine attribute of mercy.

Now, there being the crime of piracy or robbery on the
high seas, which the interests of society, the protection of
property and of life, the maintenance of commerce, oblige
every State and every nation, like ours, to condemn — what
are the circumstances, what are the acts, that, in view of the
law, amount to piracy? You will understand me that, for
the present, I entirely exclude from your consideration any
of the particular circumstances which are supposed to give
to the actual crime perpetrated a public character, lifting it
out of the penal law that you administer, and out of the re
gion of private crime, into a field of quite different consider
ations. They are, undoubtedly, that the act done shall be
with intent of depriving the person who is in possession of
property, as its owner, or as the representative of that owner,
of that property. That is what is meant by the Latin phrase,
with which you are quite as familiar now, at least, as I, animo
furandi — with the intention of despoiling the owner of that
which belongs to him. And, to make up the crime of rob
bery on land, in distinction from larceny or theft, as we gen
erally call it (though theft, perhaps, includes all the variety
of crime by which the property of another is taken against
his will), robbery includes, and piracy, being robbery at sea,
includes, the idea that it is done with the application, or the

100 SPEECHES OF WILLIAM MAXWELL EVARTS

threat, or the presence of force. There must be actual vio
lence, or the presence and exhibition of power and intent to
use violence, which produces the surrender and delivery
of the property. Such are the ingredients of robbery and
piracy. And, gentlemen, these two ingredients are all; and
you must rob one or the other of them of this, their poison,
or the crime is completely proved, when the fact of the
spoliation, with these ingredients, shall have been proved.
The use that the robber or the pirate intends to make of the
property, or the justification which he thinks he has by way
of retaliation, by way of injury, by way of provocation, by
way of any other occasion or motive that seems justifiable
to his own conscience and his own obedience to any form
whatever of the higher law, has nothing to do with the com
pleteness of the crime, unless it come to what has been ad
verted to by the learned counsel, and displayed before you
in citations from the law-books — to an honest, however
much it may be a mistaken and baseless, idea that the
property is really the property of the accused robber, of
which he is repossessing himself from the party against
whom he makes the aggression.

Now, unless, in the case proved of piracy, or robbery on
land, there be some foundation for the suggestion that the wil
ful and intentional act of depriving a party of his property
rests upon a claim of the robber, or the pirate, that it is his
own property (however baseless may be the claim), you can
not avoid, you cannot defeat, the criminality of the act of
robbery, within the intention of the law, by showing that the
robber or the pirate had, in the protection of his own con
science, and in the government of his own conduct, certain
opinions or views that made it right for him to execute that
purpose. Thus, for instance, take a case of morals : A certain
sect of political philosophers have this proposition as a basis
of all their reasoning on the subject of property, — that is, that
property, the notion of separate property in anything, as be-

THE SAVANNAH PRIVATEERS 101

longing to anybody, is theft; that the very notion that I can
own anything, whatever it may be, and exclude other people
from the enjoyment of it, is a theft made by me, a wrongful
appropriation, when all the good things in this world, in the
intention of Providence, were designed for the equal enjoy
ment of the human race. Well, now, a person possessed of
that notion of political economy and of the moral rights and
duties of men, might seek to avail himself of property owned
and enjoyed by another, on the theory that the person in
possession of it was the original thief, and that he was en
titled to share it. I need not say to you that all these ideas
and considerations have nothing whatever to do with the
consideration of the moral intent with which a person is
despoiled of his property.

Now, with regard to force, I do not understand that my
learned friends really make any question, seriously, upon
the general principle of what force is, or upon the facts of
this case, that this seizure of the Joseph by the Savannah had
enough of force, — the threat, the presence, and exhibition of
power, — and of the intent to use it, to make the capture one
of force, if the other considerations which are relied upon
do not lift it out of that catalogue of crime.

It is true that the learned counsel who last addressed you*
seemed to intimate, in some of his remarks, near the close
of his very able and eloquent and interesting address, that
there was not any force about it, that the master of the Joseph
was not threatened, that there was no evidence that the
cannon was even loaded, and that it never had been fired off.
Well, gentlemen, the very illustration which he used of what
would be a complete robbery on land, — the aggressor pos
sessing a pistol, and asking in the politest manner for your
money, — relieves me from arguing that you must fire either
a cannon or a pistol, before you have evidence of force. If
our rights stand on that proposition, that when a pistol is

* James T. Brady.

102 SPEECHES OF WILLIAM MAXWELL EVARTS

presented at our breast, and we surrender our money, we
must wait for the pistol to be fired before the crime is com
pleted, you will see that the terrors of the crime of robbery
do not go very far towards protecting property or person,
which is the object of it.

When, gentlemen, the Government, within a statute which,
in the judgment of the Court, shall be pronounced as being
lawfully enacted under the Constitution of the United States,
has completed the proof of the circumstances of the crime
charged, it is entitled at your hands to a conviction of the
accused, unless, by proof adduced on his part, he shall so
shake the consistency and completeness of the proof on the
part of the Government, or shall introduce such questions
of uncertainty and doubt, that the facts shall be disturbed
in your mind, or unless he shall show himself in some pre
dicament of protection or right under the law — (and, by
"under the law," I mean, under the law of the land where the
crime is punishable, and where the trial and the sentence
are lawfully attributed to be), or unless he shall introduce
some new facts which, conceding the truthfulness and the
sufficiency of the case made by the Government, shall still
interpose a protection, in some form, against the applica
tion of the penalty of the law. I take it that I need not say
to you that this protection or qualification of the character
of the crime must be by the law of the land; and, whether
it comes to be the law of the land by its enactment in the
statutes of the United States, or by the adoption and incor
poration into the law of the land of the principles of the law of
nations, is a point quite immaterial to you. You are not
judges of what the statutes of the United States are, except
so far as their interpretation may rightfully become a subject
of inquiry by the Jury, in the sense of whether the crime is
within the intent of the Act, in the circumstances proved.
You are not judges of what the law of nations is, in the first
place; nor are you judges of how much of the law of nations

THE SAVANNAH PRIVATEERS 103

has been adopted or incorporated into the system of our
Government and our laws, by the authority of its Congress
or of its Courts.

Whether, as I say to you, there is a defence, or protection,
or qualification of the acts and transactions which, in their
naked nature, and in their natural construction, are violent
interferences with the rights of property, against the statute,
and the protection of property intended by the statute, —
whether the circumstances do change the liability or re
sponsibility of the criminal, by the introduction of a legal
defence under the law of nations, or under the law of the
land in any other form, is a question undoubtedly for the
Court, — leaving to you always complete control over the
questions of fact that enter into the subject. So that the
suggestion, also dropped by my learned friend, at the close
of his remarks, that any such arrangement would make the
Jury mere puppets, and give them nothing to do, finds no
place. It would not exclude from your consideration any
matters of fact which go to make up the particular condition
of public affairs or of the public relations of the community
towards each other, in these collisions which disturb the land,
provided the Court shall hold and say that, on such a state
of facts existing, or being believed by you, there is in
troduced a legal qualification or protection against the
crime charged. But, if it should be held that all these facts
and circumstances, to the extent and with the effect that is
claimed for them by the learned counsel as matter of fact, yet,
as matter of law, leave the crime where it originally stood,
being of their own nature such as the principles of law do not
permit to be interposed as a protection and a shield, why, then
you take your law on the subject in the same way as you do o n
every other subject, from the instructions of the learned and
responsible Bench, whose errors, if committed, can be cor
rected; while your confusion between your pro vince and the
province of the Court would, both in this case, and in other

104 SPEECHES OF WILLIAM MAXWELL EVARTS

cases, and sometimes to the prejudice of the prisoner, and
against his life and safety, when prejudices ran that way,
confound all distinctions; and, in deserting your duty, to
usurp that of another portion of the Court, you would have
done what you could, not to uphold, but to overthrow the
laws of your country and the administration of justice ac
cording to law, upon which the safety of all of us, at all times,
in all circumstances, depends.

Now, gentlemen, let me ask your attention, very briefly,
to the condition of the proof in this case, from the immediate
consideration of which we have been very much withdrawn
by the larger and looser considerations, as I must think
them, which have occupied most of the attention of the
counsel, and been made most interesting, undoubtedly, and
attractive to you. These twelve men now on trial — four
of them citizens of the United States, and eight of them
foreigners by birth and not naturalized — formed part of
the crew of a vessel, originally a pilot-boat, called the
"Savannah." That crew consisted of twenty men, and one
of them has given the circumstances of the preparation
for the voyage, of the embarkation upon the vessel, of
her weighing anchor from the port of Charleston and making
her course out to sea without any port of destination, and
without any other purpose than to make seizures of vessels
belonging to the loyal States of the Union and its citizens.
He has shown you that all who went on board, all who are
here on trial, had a complete knowledge of, and gave their
ready and voluntary assent to and enlistment in this
service; and that the service had no trait of compulsion, or
of organized employment under the authority of Gov
ernment, in any act or signature of any one of the crew, as
far as he knew, leaving out, of course, what I do not intend
to dispute, and what you will not understand me as disre
garding — the effect that may be gained from the notorious
facts and the documents that attended the enterprise. He

THE SAVANNAH PRIVATEERS 105

has shown you that, going to sea with that purpose, without
any crew list, without any contract of wages, they descried,
early in the morning after they adventured from the port,
and at a point about sixty miles to sea, this bark, and ran
down to her; and that, while running down to her, they sailed
under the flag of the United States, and, hailing the brig,
when within hailing distance, required the master of it to
come on board with his papers. Upon the inquiry of the
master, by what authority they made that demand on him,
the stars and stripes being then floating at the masthead of
the Savannah, Captain Baker informed him that it was
in the name and by the authority of the Confederate States
of America, at the same time hauling down the American
flag and running up the flag of the Confederacy. What
ever followed after this, gentlemen, except so far as to
complete the possession of the captured vessel, by putting
a prize crew on board of it (so called), sending it into Charles
ton, and their lodging in' jail the seamen or ship's company
of the Joseph that accompanied it, and procuring a sale
of the vessel — anything beyond that (and this only to show
the completeness of the capture, and the maintenance of the
design to absolutely deprive the owners of the vessel and
cargo of their property) seems to be quite immaterial. Now,
when we add to this the testimony of Mr. Meyer, the master
of the captured vessel, who gives the same general view of
the circumstances under which his vessel was overhauled
and seized by the Savannah, as well as the observations
and the influences which operated upon his mind while the
chase was going on, we have the completeness of the crime, —
not forgetting the important yet undisputed circumstances
of the ownership of the vessel, and of the nature of the
voyage in which she was engaged. You will observe that
this vessel, owned by, and we may suppose, judging from
the position of the witnesses examined before you, consti
tuting a good part of the property of, our fellow-countrymen

106 SPEECHES OF WILLIAM MAXWELL EVARTS

in the State of Maine, sailed on the 28th day of April, from
Philadelphia, bound on a voyage to Cardenas, in Cuba, with
a charter party out and back, under which she was to bring
in a cargo of sugar and molasses. You will have noticed,
comparing this date with some of the public transactions
given in evidence, that it was after both the proclamation of
Mr. Davis, inviting hostile aggressions against the commerce
of the United States, on the part of whosoever should come
to take commissions from him; and after the proclamation
of the President of the United States, made to the people
of the United States and all under its peace and protection,
that if, under this invitation of Mr. Davis, anybody should
assume authority to make aggressions, on the high seas,
upon the private property of American citizens, they should
be punished as pirates. This vessel, therefore, sailed on her
voyage under the protection of the laws of the United States,
and under this statement of its Government, that the general
laws which protected property and seamen on the high
seas against the crime of piracy were in force, and would be
enforced by the Government of the United States, wherever
it held power, against any aggressions that should assume to
be made under the protection of the proclamation of Mr.
Davis. While returning, under the protection of this flag
and of this Government, she meets with hostile aggression
at the hands of an armed vessel, which has nothing to dis
tinguish it from the ordinary condition of piracy, except this
very predicament provided against by the proclamation of
the President, and under the protection of which the vessel
had sailed, to wit, the supposed authority of Jefferson Davis ;
which should not, and cannot, and will not, as I suppose,
protect that act from the guilt and the punishment of
piracy.

Now, you will have observed, gentlemen, in all this, that
whatever may be the circumstances or the propositions of
law connected with this case, that may change or qualify

THE SAVANNAH PRIVATEERS 107

the acts and conduct of Mr. Baker, so far as the owners of
this vessel and the owners of this cargo are concerned,
there has been as absolute, as complete, as final and as
perfect a deprivation of their property, as if there had been
no commission — no public or other considerations that
should expose them to having the act done with impunity.
You will discover, then, that, so far as the duty of protec
tion from this Government to its citizens and their prop
erty — so far as the duty of maintaining its laws and
enforcing them upon the high seas — is concerned, there
is nothing pretended — there is nothing, certainly, proved —
that has excused or can excuse this Government, in its
Executive Departments, in its Judicial Departments, in the
declaration of law from the Court, or in the finding of facts
by the Jury, from its duty towards its citizens and their
property. And, while you have been led to look at all the
qualifying circumstances that should attend your judgment
concerning the act and the fact on the part of these prisoners,
I ask your ready assent to the proposition, that you should
look at the case of these sufferers, the victims of those men,
whose property has been ventured upon the high seas in
reliance on its safety against aggression, from whatever
source, under the exercise of the authority of the Govern
ment to repel and to punish such crimes.

Before I go into any of the considerations which are to
affect the relations of these prisoners to this alleged crime,
and to this trial for such alleged crime, let us see what
there are in the private circumstances particular to them
selves, and their engagement in this course of proceeding,
that is particularly suited to attract your favor or in
dulgence. Now, these men had not, any of them, been
under the least compulsion, or the least personal or particu
lar duty of any kind, to engage in this enterprise. Who
are they? Four of them are citizens of the United States.
Mr. Baker is, by birth, a citizen of the State of Pennsylvania;

108 SPEECHES OF WILLIAM MAXWELL EVARTS

two are citizens, by birth, of the State of South Carolina,
and one of North Carolina. The eight men, foreigners,
are, three of Irish origin, two of Scotch, one a German, one a
native of Manilla, in the East Indies, and one of Canton,
in China. Now, you will observe that no conscription, no
enlistment, no inducement, no authority of any public kind
has been shown, or is suggested, as having influenced any of
them in this enterprise. My learned friend has thought it
was quite absurd to impute to this Chinaman and this
Manillaman a knowledge of our laws. Is it not quite as
absurd to throw over them the protection of patriotism —
the protection of indoctrination in the counsels and ethics
of Calhoun — to give them the benefit of a departure from
moral and natural obligations to respect the property of
others, on the theory that they must surrender their own
rectitude — their own sense of right — to an overwhelming
duty to assist a suffering people in gaining their liberty?
What I have said of them applies equally to these Irishmen,
this German, and these Scotchmen — as good men, if you
please, in every respect, as the same kind of men born in
this country. I draw no such national distinctions; but I
ask what there is, in the sober, sensible, practical considera
tion of the motives and purposes with which these men
entered into this enterprise to despoil the commerce of the
United States, and make poor men of the owners of that
vessel, that should give them immunity from the laws of
property and the laws of the land, or form any part in the
struggles of a brave and oppressed people (as we will con
sider them, for the purpose of the argument) against a
tyrannical and bloodthirsty Government?

No! No! Let their own language indicate the degree
and the dignity of the superior motives that entered into
their adoption of this enterprise: "We thought we had a
right to do it, and we did it." Was there the glow of patriot
ism — was there the self-sacrificing devotion to work in the

THE SAVANNAH PRIVATEERS 109

cause of an oppressed people, in this? No! And the only
determination that these men knew or looked at, was the
lawfulness of the enterprise, in respect of the sanctions and
punishments of the law. They, undoubtedly, had not any
purpose or any thought of running into a collision with the
comprehensive power and the all-punishing condemnation of
the statutes of the United States, whether they knew what
the statutes were or not; but they did take advantage of
the occasion and opportunity to share the profits of a priva
teering enterprise against the commerce of the United States;
and they were unquestionably acquainted, either by original
inspection or by having a favorable report made to them,
with the fundamental provision in regard to this system of
privateering, so called. They knew that the entire profits of
the transaction would be distributed among those who
were engaged in it. Now, I am not making any particular
or special condemnation of these men (in thus readily, with
out compulsion, and without the influence of any superior
motives, however mistaken, of patriotism) beyond what the
general principles of public law and general opinion, founded
on the experience of privateering, have shown to be the
reckless and greedy character of those who enter upon
private war, under the protection of any, however recent,
flag. Everybody knows it — everybody understands it —
everybody recognizes the fact that, if privateers, who go
in under the hope of gain, and for the purposes of spoliation,
are not corrupt and depraved at the outset, they expose them
selves to influences, and are ready to expose themselves to
influences, which will make them as dangerous, almost, to
commerce, and as dangerous to life, as if the purpose and
the principle of privateering did not distinguish them from
pirates. And, to show that, in this law of ours, there is
nothing that is forced in its application to privateers — that
there is nothing against the principles of humanity or com
mon sense in the nation's undertaking to say, we will not

110 SPEECHES OF WILLIAM MAXWELL EVARTS

recognize any of those high moral motives, any of this
superior dignity, about privateers; we understand the whole
subject, and we know them to be, in substance and effect,
dangerous to the rights of peaceful citizens, in their lives
and their property, — reference need only be had to the
action of civilized Governments, and to that of our Govern
ment as much as any, in undertaking to brush away these
distinctions, wherever it had the power — that is my proposi
tion — wherever it had the power to do so'. And I ask your
Honors' attention to the provision on this subject, in the
first treaties which our Government — then scarcely having
a place among the nations of the earth — introduced upon this
very question of piracy and privateers. I refer to the
twenty-first article of the Treaty of Commerce with France,
concluded on the 6th of February, 1778, on page 24 of the
eighth volume of the Statutes at Large. This is a com
mercial arrangement, entered into by this infant Govern
ment, before its recognition by the Throne of Great Britain,
with its ally, the most Christian Monarch of France :

"No subjects of the Most Christian King shall apply for or
take any commission or letters of marque, for arming any
ship or ships to act as privateers against the said United
States, or any of them, or against the subjects, people or
inhabitants of the said United States, or any of them, or
against the property of any of the inhabitants of any of them,
from any Prince or State with which the said United States
shall be at war; nor shall any citizen, subject or inhabitant
of the said United States, or any of them, apply for or take
any commission or letters of marque for arming any ship or
ships, to act as privateers against the subjects of the Most
Christian King, or any of them, or the property of any of
them, from any Prince or State with which the said King
shall be at war; and if any person of either nation shall take
such commissions or letters of marque, he shall be punished
as a pirate."

THE SAVANNAH PRIVATEERS 111

Now, we have had a great deal of argument here to show
that, under the law of nations, — under the law that must
control and regulate the international relations of inde
pendent powers — it is a gross and violent subversion of the
natural, inherent principles of justice, and a confusion be
tween crime and innocence, to say to men who, under the
license of war, take commissions from other powers, that
they shall be hanged as pirates. And yet, in the first con
vention which we, as an infant nation, formed with any
civilized power, attending in date the Treaty of Alliance
which made France our friend, our advocate, our helper, in
the war of the Revolution, his Most Christian Majesty, the
King of France, standing second to no nation in civilization,
signalized this holy alliance of friendship in behalf of justice,
and humanity, and liberty, by engaging that, whatever the
law of nations might be, whatever the speciousness of pub
licists might be, his subjects, amenable to the law, should
never set up the pretence of a commission of privateering
against the penalties of piracy. Nor had this treaty of
commerce, which I have referred to, anything of the nature
of a temporary or warlike arrangement between the parties,
pending the contest with Great Britain. It was a treaty
independent of the Treaty of Alliance which engaged them
as allies, offensive and defensive, in the prosecution of that
war. Nor is this an isolated case of the morality and policy
of this Government on the subject of piracy. By reference
to the 19th Article of the Treaty between the Netherlands
and the United States, concluded in 1782, at page 44 of the
same volume, your Honors will find the same provision.
After the same stipulation, excluding the acceptance of
commissions, from any power, to the citizens or subjects of
the contracting parties, there is the same provision: "And
if any person of either nation shall take such commissions
or letters of marque, he shall be punished as a pirate."

Now, our Government has never departed from its pur-

112 SPEECHES OF WILLIAM MAXWELL EVARTS

pose and its policy, to meliorate the law of nations, so as to
extirpate this business of private war on the ocean. It is
entirely true that, in its subsequent negotiations with the
great powers of Christendom, it has directed its purpose to
the more thorough and complete subversion and annihila
tion of the whole abominable exception, which is allowed on
the high seas, from the general melioration of the laws of
war, and does not tolerate aggressions of violence, and
murder, and rapine, and plunder, except by the recognized
forces contending in the field. It has attempted to secure
not only the exclusion of private armed vessels from pri
vateering, but the exclusion of aggressions on the part of
public armed vessels of belligerents on private property of
all kinds upon the ocean. And no trace of any repugnance
or resistance on the part of our Government to aid and co
operate in that general melioration in the laws of war, in
respect to property on the ocean, can be charged or proved.
In pursuance of that purpose, as well as in conformity with a
rightful maintenance of its particular predicament in naval
war, — to wit, a larger commerce than most other nations,
and a smaller navy, — it has taken logically, and diplomati
cally, and honestly, the position. I will not yield to these
false pretences of humanity and melioration which will
only deprive us of privateers, and leave our commerce ex
posed to your immense navies. If you are honest about it,
as we are, and opposed to private war, why, condemn and
repress private war in respect to the private character of the
property attacked, as well as private war in respect to the
vessels that make the aggressions.

Nor, gentlemen, do I hesitate to say that, whatever we
may readily concede to an honest difference of opinion and
feeling, in respect to great national contests, where men,
with patriotic purposes, raise the standard of war against
the Government, and, on the other hand, uphold the old
standard to suppress the violence of war lifted against it,

THE SAVANNAH PRIVATEERS 113

we do not, we cannot, as honest and sensible men, look with
favor upon an indiscriminate collection from the looser por
tions of society, that rush on board a marauding vessel,
the whole proceeds and results of whose aggressions are to
fill their own pockets. And, when my learned friends seek
to go down into the interior conscience and the secret motives
of conduct, I ask you whether, if this had been a service in
which life was to be risked, and all the energies of the man
were to be devoted to the public service, for the glory and the
interest of the country, and the poor food, poor clothing
and poor pay of enlisted troops, you would have found
precisely such a rush to that service?

Now, I am not seeking, by these considerations, to dis
turb in the least the legal protections, if there be any, in
any form, which it is urged have sprung out of the character
of privateering which this vessel had assumed, and these men,
as part of its crew, had been incorporated in. If legal,
let it be so; but do not confound patriotism, which sacri
fices fortune and life for the love of country, with the motives
of these men, who seek privateering because they are out
of employment. Far be it from me to deny that the feeling
of lawful right, the feeling that statutory law is not violated,
if it draw the line between doing and not doing a thing, is
on the whole a meritorious consideration and a trait that
should be approved. But I do object to having the range
of these men's characters and motives exalted, from the low
position in which their acts and conduct place them, into
the high purity of the patriot and the martyr. We are try
ing, not the system of privateering— we are trying the
privateers, as they are called; and, when they fail of legal
protection, they cannot cover themselves with this robe of
righteousness in motive and purpose.

Now, how much was there of violence in the meditated
course, or in the actual aggression? Why, the vessel is
named in the commission as having a crew of thirty. In
10

114 SPEECHES OF WILLIAM MAXWELL EVARTS

fact, she had twenty. Four men was a sufficient crew for a
mercantile voyage. She had an eighteen pounder, a great
gun that must have reached half way across the deck, rest
ing on a pivot in the middle, capable of being brought around
to any quarter, for attack. At the time this honest master
and trader of the Joseph descried the condition of the vessel,
he was struck with this ugly thing amidships as he called
it — to wit, this eighteen pound cannon, and was afraid
it was a customer probably aggressive — a robber. But he
was encouraged by what? Although he saw this was a
pilot boat, and not likely, with good intent, to be out so far
at sea, what was this honest sailor encouraged by? The
flag of the United States was flying at her mast! But, when
hailed — still under that view as to the aspect presented by the
marauding vessel — he is told to come on board, and asks
by what authority — instead of what would have been the glad
and reassuring announcement — the power of the American
flag — the Confederate States were announced as the maraud
ing authority, and the flag of his country is hauled down,
and its ensign replaced by this threat to commerce. Now,
when this gun, as he says, was pointed at him, and this
hostile power was asserted, my learned friends, I submit to
you, cannot, consistently with the general fairness with
which they have pursued this argument, put the matter
before you as failing in any of the completeness of proof con
cerning force. For, when we were purposing to show that
these prisoners all the while, in their plans, had the purpose
of force, if force was necessary, and that, in the act of col
lision with the capturing vessel, that force occurred, we
were stopped, upon the ground that it was unnecessary
to occupy the attention of the Court and the Jury with any
thing that was to qualify this vessel's violent character,
by reason of the admission that, if it was not protected
by the commission, or the circumstances of a public char
acter of whatever kind and degree — about which I admit

THE SAVANNAH PRIVATEERS 115

there was no restriction of any kind, — if it stood upon the
mere fact that the vessel was taken from its owners by the
Savannah in the way that was testified, — it would not
be claimed to be wanting in any of the quality of complete
spoliation, or in any of the quality of force. Now, that de
fence, we may say, must not be recurred to, to protect, in
your minds, these men from the penalty which the law has
imposed upon the commission of piracy. It cannot be pre
tended that there was any defect in the purpose of despoiling
the original owners, nor that there is any deficiency in the
exhibition of force, to make it piracy; and you will perceive,
gentlemen, that although my learned friends successively,
Mr. Dukes, Mr. Sullivan, and Mr. Brady, have, with the
skill and purpose of advocates, taken occasion, at frequent
recurring points, to get you back to the want of a motive
and intent or purpose of the guiltiness of robbing, yet, after
all, it comes to this — that the inconsistency of the motive
and intent, or the guiltiness of robbing, with the lawfulness,
under the law of nations, of privateering, is the only ground
or reason why the crime is deficiently proved.

I do not know that I need say anything to you about
privateering, further than to present somewhat distinctly
what the qualifications, what the conditions, and what the
purposes of privateering are. In the first place, privateering
is a part of war, or is a part of the preliminary hostile ag
gressions which are in the nature of a forcible collision be
tween sovereign powers. Now, what is the law of nations on
this subject — and how does there come to be a law of na
tions — and what is its character, what are its sanctions,
and who are parties to it? We all know what laws are
when they proceed from a Government, and operate upon
its citizens and its subjects. Law then comes with authority,
by right, and so as to compel obedience; and laws are always
framed with the intent that there shall be no opportunity
of violent or forcible resistance to them, or of violent or

116 SPEECHES OF WILLIAM MAXWELL EVARTS

forcible settlement of controversies under them, but that the
power shall be submitted to, and the inquiry as to right pro
ceed regularly and soberly, under the civil and criminal
tribunals. But, when we come to nations, although they
have relations towards each other, although they have duties
towards each other, although they have rights towards each
other, and although, in becoming nations, they neverthe
less are all made up of human beings, under the general laws
of human duty, as given by the common lawgiver, God,
yet there is no real superior that can impose law over them,
or enforce it against them. And it is only because of that,
that war, the scourge of the human race — and it is the great
vice and defect of our social condition, that it cannot be
avoided — comes in, as the only arbiter between powers
that have no common superior. I am sure that the little
time I shall spend upon this topic will be serviceable; as,
also, in some more particular considerations, as to what is
called a state of war, and as to the conditions which give
and create a war bet ween the different portions of our unhappy
country and its divided population. So, then, nations have
no common superior whom they recognize under this law,
which they have made for themselves in the interest of
civilization and humanity, and which is a law of natural
right and natural duty, so far as it can be applied to the
relations which nations hold to one another. They recog
nize the fact that one nation is just as good, as matter of
right, as another; that whether it be the great Powers of
Russia, of England, of France, of the United States of
America, or of Brazil, or whether it be one of the feeble
and inferior Powers, in the lowest grade, — as, one of the
separate Italian Kingdoms, or the little Republic of San
Marino, whose territories are embraced within the circuit
of a few leagues, or one of the South American States, scarcely
known as a Power in the affairs of men,— yet, under the prop
osition that the States are equal in the family of nations,

THE SAVANNAH PRIVATEERS 117

they have a right to judge of their quarrels, and, finding oc
casions for quarrel, have a right to assert them, as matter of
force, in the form of war. And all the other nations, how
ever much their commerce may be disturbed and injured,
are obliged to concede certain rights, that are called the
rights of war. We all understand what the rights of war are
on the part of two people fighting against each other. A
general right is to do each other as much injury as they can;
and they are very apt to avail themselves of that right.
There are certain meliorations against cruelty, which, if a
nation should transgress, probably other nations might feel
called upon to suppress. But, as a general thing, while two
nations are fighting, other nations stand by and do not
intervene. But the way other nations come to have any
interest, and to have anything to say whether there is war
between sovereign powers, grows out of certain rights of war
which the law of nations gives to the contending parties,
against neutrals. For instance: Suppose Spain and Mexico
were at war. Well, you would say, what is that to us?
It is this to us. On the high seas, a naval vessel of either
power has a right, in pursuit of its designs against the enemy,
to interrupt the commerce of other nations to a certain ex
tent. It has a right of visitation and of search of vessels
that apparently carry our flag. Why? In order to see
whether the vessel be really our vessel, or whether our
flag covers the vessel of its enemy, or the property of its
enemy. It has also a right to push its inquiries farther, and
if it finds it to be a vessel of the United States of America,
to see whether we are carrying what are called contraband
of war into the ports of its enemy, and, if so, to confiscate it
and her. Each of the powers has a right to blockade the
ports of the other, and thus to break up the trade and pur
suits of the people of other nations — and that without any
quarrel with the other people. And so you see, by the law
of nations, this state of war, which might, at first, seem to

118 SPEECHES OP WILLIAM MAXWELL EVARTS

be only a quarrel between the two contending parties, really
becomes, collaterally, and, in some cases, to a most im
portant extent, a matter of interest to other nations of the
globe. But however much we suffer — however much we
are embarrassed (as, for example, in the extreme injury to
British commerce and British interests now inflicted in this
country — the blockade keeping out their shipping, and pre
venting shipments of cotton to carry on their industry)
we must submit, as the English people submit, in the view
their Government has chosen to take of these transactions.

Now, gentlemen, this being the law of nations, you will
perceive that, as there is no human earthly superior, so
there are no Courts that can lay down the law, as our Courts
do for our people, or as the Courts of England do for their
people. There are no Courts that can lay down the law of
nations, so as to bind the people of another country, except
so far as the Courts of that country, recognizing the sound
principles of morality, humanity and justice obtaining in
the government and conduct of nations towards each other,
adopt them in their own Courts. So, when my learned
friends speak of the law of nations as being the law that is
in force here, and that may protect these prisoners in this
case against the laws of the United States of America, why,
they speak in the sense of lawyers, or else in a sense that
will confuse your minds, that is to say, that the law of na
tions, as the Court will expound and explain it, has or has
not a certain effect upon what would be otherwise the plain
behests of the statute law.

Now, it is a part of the law of nations, except so far as
between themselves they shall modify it by treaty — (two
instances of which I have read in the diplomacy of our own
country, and a most extensive instance of which is to be
found in the recent treaty of Paris, whereby the law of na
tions, in respect to privateering, has been so far modified as
to exclude privateering as one of the means of war)— out-

THE SAVANNAH PRIVATEERS 119

side of particular arrangements made by civilized nations,
it was a part of the original law of war prevailing among
nations, that any nation engaged in war might fit out pri
vateers in aid of its belligerent or warlike purposes or move
ments. No difficulty arose about this when war sprang
up between two nations that stood before the world in their
accredited and acknowledged independence. If England
and France went to war, or if England and the United States,
as in 1812, went to war, this right of fitting out privateers
would obtain and be recognized. But, there arises, in the
affairs of nations, a condition much more obscure and un
certain than this open war between established powers, and
that is, when dissension arises in the same original nation —
when it proceeds from discontent, sedition, private or local
rebellion, into the inflammation of great military aggression;
and when the parties assume, at least (assume, I say) to be
rightfully entitled to the position of Powers, under the law
of nations, warring against one another. The South Ameri
can States, in their controversy which separated them from
the parent country, and these States, when they were Col
onies of Great Britain, presented instances of these domestic
dissensions between the different parts of the same Gov
ernment, and the rights of war were claimed. Now, what
is the duty of other nations in respect to that? Why, their
duty and right is this — that they may either accord to these
struggling, rebellious, revolted populations the rights of war,
so far as to recognize them as belligerents, or not; but,
whether they will do so or not, is a question for their Govern
ments, and not for their Courts, sitting under and by
authority of their Governments. For instance, you can
readily see that the great nations of the earth, under the
influences upon their commerce and their peace which I
have mentioned, may very well refuse to tolerate the quar
rel as being entitled to the dignity of war. They may say:
"No, no; we do not see any occasion for this war, or any jus-

120 SPEECHES OF WILLIAM MAXWELL EVARTS

tice or benefit that is to be promoted by it; we do not see
the strength or power that is likely to make it successful;
and we will not allow a mere attempt or effort to throw us
into the condition of submitting to the disturbance of the
peace, or the disturbance of the commerce of the world."
Or, they may say : " We recognize this right of incipient war to
raise itself and fairly contend against its previous sovereign
— not necessarily from any sympathy, or taking sides in it,
but it is none of our affair; and the principles of the con
troversy do not prevent us from giving to them this recog
nition of their supposed rights." Now when they have done
that, they may carry their recognition of right and power
as far as they please, and stop where they please. They
may say: "We will tolerate the aggression by public armed
vessels on the seas, and our vessels shall yield the right of
visitation and search to them." They may say: "We will
extend it so far as to include the right of private armed vessels,
and the rights of war may attend them; " or they may refuse
to take this last step, and say, "We will not tolerate the
business of privateering in this quarrel." And whatever they
do or say on that subject, their Courts of all kinds will follow.
Apply this to the particular trouble in our national affairs
that is now progressing to settle the fate of this country.
France and England have taken a certain position on this
subject. I do not know whether I accurately state it (and
I state it only for the purpose of illustration, and it is not
material), but, as I understand it, they give a certain degree
of belligerent right, so that they would not regard the
privateers on the part of the Southern rebellion as being
pirates, but they do not accord succor or hospitality in their
ports to such privateers. Well, now, suppose that one of
these privateers intrudes into their ports and their hos
pitalities, and claims certain rights. Why, the question,
if it comes up before a Court in Liverpool or London, will
be — Is the right within the credit and recognition which

THE SAVANNAH PRIVATEERS 121

our Government has given? And only that. So, too, our
Government took the position in regard to the revolting
States of South America, that it would recognize them as
belligerents, and that it would not hang, as pirates, privateers
holding commissions from their authority. But, when other
questions came up, as to whether a particular authority
from this or that self-styled power should be recognized, our
Government frowned upon it, and would not recognize it.
With regard to Captain Aury, who styled himself General
issimo of the Floridas, or something of that kind, when
Florida was a Spanish province, our Courts said: "We do
not know anything about this — his commissions are good
for nothing here — our Government has not recognized any
such contest or incipient nationality as this." So, too, in
another case, where there was an apparent commission
from one struggling power, the Court says: Our Govern
ment does not recognize that power, and we do not, in giving
any rights of war to it; but, the Court says, it appears in the
proof that this vessel claims to have had a commission from
Buenos Ayres,- another contending power; if so, that is a
power which our Government recognizes; and the case must
go down for further proof on that point.

I confess that, if the views of my learned friends are to
prevail, in determining questions of crime and responsibility
under the laws and before the Court, and are to be accepted
and administered, I do not see that there is any Govern
ment at all. For you have every stage of Government;
first, Government of right; next a Government in fact; next,
a Government trying to make itself a fact; and, next, a
Government which the culprit thinks ought to be a fact.
Well, if there are all these stages of Government, and all
these authorities and protections, which may attend the
acts of people all over the world, I do not see but every
Court and every Jury must, finally, resolve itself into the
great duty of searching the hearts of men, and putting its

SPEECHES OF WILLIAM MAXWELL EVARTS

sanctions upon pure or guilty secret motives, or notions, or
interpretations of right and wrong — a task to which you,
gentlemen of the Jury, I take it, feel scarcely adequate.

Now, gentlemen, I have perhaps wearied you a little
upon this subject; because it is from some confusion in these
ideas, — first, of what the law of nations permits a Govern
ment to do, and how it intrudes upon and qualifies the laws
of that Government; and, second, upon what the rights are
that grow out of civil dissensions, as toward neutral powers,
— that some difficulty and obscurity are introduced into this
case.

If the Court please, I maintain these propositions, in con
formity with the views I have heretofore presented — first, that
the law of the land is to determine whether this crime of
piracy has been committed, subject only to the province of
the Jury in passing upon the facts attending the actual per
petration of the offence; and, second, upon all the questions
invoked to qualify, from the public relations of the hostile
or contending parties in this controversy, the attitude that
this Government holds towards these contending parties,
is the attitude that this Court, deriving its authority from
this Government, must necessarily hold towards them.

I have argued this matter of the choice and freedom of a
Government to say how it will regard these civil dissensions
going on in a foreign nation, as if it had some application to
this controversy, in which we are the nation, and this Court
is the Court of this nation.

But, gentlemen, the moment I have stated that, you will
see that there is not the least pretence that there is any dis
pensing power in the Court, or that there has been any dis
pensing power exercised by our Government, or that there
has been any pardon, or any amnesty, or any proclamation,
saving from the results of crime against our laws, any per
son engaged in these hostilities, who at any time has owed
allegiance and obedience to the Government of the United

THE SAVANNAH PRIVATEERS

States. Therefore, here we stand, really extricated from the
confusion, and from all the wideness of controversy and of
comment that attends these remote considerations of this
case that have been pressed upon your attention as if
they were the case itself, on the part of our learned friend.

Now, if the Court please, I shall bestow some particular
consideration upon the statute, but I shall think it necessary
to add very little to the remarks I have heretofore made to
the Court. The 8th section of the statute has been charac
terized by the learned counsel, and, certainly, with suffi
cient accuracy, for any purposes of this trial, as limited to the
offence of piracy as governed by the law of nations. I do
not know that any harm comes from that description, if we
do not confuse it with the suggestion that the authority
of this Government over the crime is limited to the con
struction of the law of nations which is expressed in that
section of the statute. At all events, as they concede, I be
lieve, that the 8th section is within the constitutional right
and power of Congress, under the special clause giving them
authority to define and punish piracy, under the law of
nations, there is no room for controversy here on the point.
When we come to the 9th section, we have two different and
quite inconsistent views presented by the different counsel.
One of the counsel (I think, Mr. Dukes) insists that the 9th
section does not create any additional crime beyond that of
piracy as defined in the 8th section, but only robs that crime of
piracy of any apparent protection from a commission or
authority from any State. But, my friend Mr. Brady con
tends (and, I confess, according to my notion of the law, with
more soundness) that there is an additional crime, which
would not be embraced, necessarily, in the crime of piracy
or robbery on the high seas — which is the whole purview of
the 8th section, and which is in terms repeated in the 9th —
and that the additional words, "or any act of hostility against
the United States, or any citizens thereof," create a punish-

124 SPEECHES OF WILLIAM MAXWELL EVARTS

able offence, although it may fall short of the completed
crime of piracy and robbery, as defined. Now, I concede to
my learned friend that the particular case he put of a quarrel
between two ships' crews on the high seas, and of an attack
by one of the crew of one upon one of the crew of the other
with a belaying pin, would not, in my judgment, as an
indictable, punishable offence, fall within the 9th section.
But, whether I am right or wrong about it, does not impede
the argument of the Government, that there are crimes
which are in the nature of and up to the completeness of
hostile attacks upon vessels or citizens of the United States
which would not be piracy, but yet are punishable under the
9th section.

Now, agreeing, thus far, that there is an added offence to
the crime of piracy in the 9th section, I am obliged to meet
his next proposition, that such additional offence is beyond
the constitutional power of Congress, because it is an offence
which does not come up to the crime of piracy, and, there
fore, exceeds the grant of authority under the particular
section of the Constitution which gives to Congress power
over the definition and punishment of piracy under the law
of nations.

Now, if the Court please, the argument is a very simple
one. This 9th section does not profess to carry the power
of this Government where alone the principles of the law of
nations would justify; that is, to operate upon all the world,
so far as the subjects of it — that is, the persons included in
its sanctions — are concerned, or so far as the property pro
tected by it is concerned. It is limited to citizens, and
limited to hostilities against citizens of the United States,
or their property at sea. Now, the authority in respect to
this comes to Congress under the provision of the Constitu
tion which gives the regulation of commerce and its control,
in regard to which I need not be more particular to your
Honors, because they are statutes of every-day enforcement,

THE SAVANNAH PRIVATEERS 125

and under the highest penalty, too, of the law, such as re
volt, mutiny, etc., which have nothing to do with the national
considerations of the law of piracy, and nothing to do with
the clause of the Constitution which gives to Congress
power over the crime of piracy, but rest in the power re
posed in Congress to protect the commerce of the United
States. So, this is wholly within the general competency of
Congress to govern citizens of the United States on the
high seas, and to protect the property of citizens on the high
seas, although there is no common law of general jurisdic
tion of Congress on the subject of crimes.

Now, upon this subject there is but one other criticism,
and that is — that although the statute is framed with the in
tent, and its language covers the purpose, of prohibiting
any defence or protection being set up under an assumed
or supposed authority from any foreign Government, State,
or Prince, or from any person, yet the particular authority
which is averred in the indictment and produced in proof,
if you take it in the sense that we give to it, is not within
the purview of the statute, and, if you take it in any other
sense, is not proved ; and that thus a variance arises between
the indictment and the proof, because the proof goes so far
as to remove from under the statute the four defendants who
would otherwise be amenable as citizens, by making the
Government foreign, and making them foreign citizens.

Now, to take up one branch of this at a time, I do not
care at all whether the Government of the United States,
when they passed this law, anticipated that there would
ever be an occurrence which should give shape to such a
commission as this, from either a person or an authority
that emanated from what was or ever had been a part or a
citizen of the United States. If these new occurrences here
have produced new relations — (and that is the entire argu
ment of my learned friends, for, if they have produced no
new relations, what have we to do with any of these discus-

126 SPEECHES OF WILLIAM MAXWELL EVARTS

sions?) — if they have produced new relations, perfect or
imperfect, effectual or ineffectual, to this or that extent, why
then, if these new relations and attitude have brought this
matter within the purview of a statute of the United States
which was framed to meet all relations that might arise at
any time, they come within its predicament, and the argu
ment seems to me to amount to nothing. It will not be pre
tended that the 9th section of this statute can only be en
forced as to Powers in existence at the time it was passed.
Whenever a new Power or new authority is set forth as a
protection to the crime of piracy, the 9th section of the
statute says: "Well, we do not know or care anything about
what the law of nations says about your protection, or your
authority — we say that no citizen of the United States, depre
dating against our commerce, shall set up any authority to
meet the justice of our criminal law." Well, now, that the
statute has said; and we have averred and proved the commis
sion such as it is. It is either the commission of a foreign
Prince, or State, or it is an authority from some person. We
do not recognize it as from a foreign State or Prince. Indeed,
Mr. Davis does not call himself a Prince, and we do not recog
nize the Confederate States as a nation of State, in any rela
tion. Therefore if we would prove this authority under our
law, we must aver it as it is, coming from an individual who
was once a citizen of the United States, and still is, as the law
decides, a citizen of the United States. Whatever part or
pretension of authority he assumes, and whatever real fact
and substance there may be to his power, it is, in the eye of
the law, nothing. It is not provable, and it is not proved.
Now, as to the right of Congress to include the additional
crime, under the authority given to it to punish piracy accord
ing to. the law of nations, my learned friend contends that this
statute is limited by that authority, and is, as respects any
body within its purview* unconstitutional, and that, although
a particular act may be within the description of the statute,

THE SAVANNAH PRIVATEERS 127

so far as regards hostility, it is not piracy. On that subject
I refer your Honors to a very brief proposition contained in
the case of The United States vs. Pirates (5 Wheaton, 202) :

"And if the laws of the United States declare those acts
of piracy in a citizen, when committed on a citizen, which
would be only belligerent acts when committed on others,
there can be no reason why such laws should not be enforced.
For this purpose the 9th section of the Act of 1790 appears
to have been passed. And it would be difficult to induce
this Court to render null the provisions of that clause, by
deciding either that one who takes a commission under a
foreign power, can no longer be deemed a citizen, or that all
acts committed under such a commission, must be adjudged
belligerent, and not piratical acts."

I would also refer to the case of The Invincible, to
which my learned friend called the attention of the Court,
in the opinion of the late Attorney General, Mr. Butler. It
is to be found in the 3rd volume of the Opinions of the
Attorneys General, page 120. My learned friend cited
this case in reference to the proposition that persons holding
a commission (as I understood him) should not be treated as
pirates, under the law of nations, by reason of any particular
views or opinions of our Government. I refer to that part
of the opinion where he says: "A Texan armed schooner can
not be treated as a pirate under the Act of April 30th, 1790,
for capturing an American merchant-man, on the alleged
ground that she was laden with provisions, stores, and muni
tions of war for the use of the army of Mexico, with the Gov
ernment of which Texas, at the time, was in a state of revolt
and civil war."

Now, undoubtedly, Mr. Butler does here hold that, by
the law of nations, in a controversy between revolting Col
onies and the parent State, where our Government recog
nizes a state of war as existing, a privateer cannot be treated
as a pirate. But we will come to the opinion of the At-

128 SPEECHES OF WILLIAM MAXWELL EVARTS

torney-General on the other proposition we contend for —
that is, in support of the 9th section of the statute, as far
as it would have exposed citizens of the United States to
the penalty of piracy:

"In answer to this question, I have the honor to state that,
in my opinion, the capture of the American ship Pocket
can in no view of it be deemed an act of piracy, unless it shall
appear that the principal actors in the capture were citizens of
the United States. The ninth section of the Crimes Act of
30th April, 1790, declares 'that if any citizen shall commit
any piracy or robbery, or any act of hostility against the
United States, or any citizen thereof, upon the high seas,
under color of any commission from any foreign Prince,
or State, or on pretence of authority from any person, such
offender shall, notwithstanding the pretence of any such
authority, be deemed, adjudged and taken to be a pirate,
felon and robber, and on being thereof convicted, shall suffer
death.' This provision is yet in force, and should it be found
that any of those who participated in the capture of the Pocket
are American citizens, the flag and commission of the Govern-
ment of Texas would not protect them from the charge of piracy."

It will be seen here, that the condition of belligerents will
not protect our citizens from aggressions against our 'com
merce; and there is no place for my learned friends to put this
authority, and this assumed belligerent power and right, on
any footing that must not make it, either actually or in
pretence, at least, proceed from a separate contending power.
And, if they say (as, in one of their points substantially is
said) that the 9th section cannot apply, because the alleged
authority is not from a foreign State, or a foreign personage,
but from a personage of our own country, — why, then, we
are thrown back at once to the 8th section entirely, and
there is either no pretence of authority at all, and it is just
like arguing that the pirate accused was authorized by the
merchant owner of a vessel in South street to commit piracy,

THE SAVANNAH PRIVATEERS

or we are put in the position, which is unquestionably the
true one, that the 9th section was intended to cover all pos
sible although unimagined forms in which the justice of the
country could be attempted to be impeded under the claim
of authority.

Now, gentlemen, if the Court please, I come to a con
sideration of the political theories or views on which these
prisoners are sought to be protected against the penalties
of this law. In that argument, as in my argument, it must
be assumed that these penalties, but for those protections,
would be visited upon them; for we are not to be drawn
hither and thither by this inquiry, and to have it said, at one
time, that the crime itself, in its own nature, is not proved,
and, at another time, that, if it be proved, these are defences.
I have said all I need to say, and all I should say, about the
crime itself. The law of the case on that point will be given
to you by the Court, and, if it should be, as I suppose it must,
in accordance with that laid down by the Court in the Cir
cuit of Pennsylvania, then, as my learned friend Mr. Brady
has said of that, that he could not see how the Jury could
find any verdict but guilty, it necessarily follows, if that is
a sound view of the law, that you cannot find any other
verdict but guilty. I proceed, therefore, to consider these
other defences which grow out of the particular circum
stances of the piracy.

Now, there are, as I suggested, three views in which this
subject of the license, or authority, or protection against
our criminal laws in favor of these prisoners, is urged, from
their connection with particular occurrences disclosed in the
evidence. One is, that they are privateers; but I have shown
you that, to be privateers, their commission must come from
an independent nation, or from an incipient nation, which
our Government recognizes as such. Therefore, they fail
entirely to occupy that explicit and clear position, under the
law of the land and the law of nations. But, as they say,
11

130 SPEECHES OF WILLIAM MAXWELL EVARTS

they are privateers either of a nation or a Power that exists,
as the phrase is, de jure, — that has a right, the same as we, or
England, or France, — or a Power that has had sufficient
force and strength to establish itself, as matter of fact.
Without considering the question of right, as recognized
under the system of nations, they contend, and with a great
deal of force and earnestness, in the impression of their views
upon the Jury, and great skill and discretion in handling
the matter, — they contend that there is a state of civil war
in this country, and that a state of civil war gives to all
nations engaged in it, against the Government with which
they are warring, rights of impunity, of protection, of re
spect, of regard, of courtesy, which belong to the laws of
war; and that, without caring to say whether they are a
Government, or ever will be a Government, so long as they
fight they cannot be punished.

That is the proposition — there is nothing else to it. They
come down from the region of de jure Government and
de facto Government, and have nothing to prove but the
rage of war on the part of rebels, in force enough to be called
war. Then they say that, by their own act, they are lib
erated from the laws, and from their duty to the laws,
which would otherwise, they admit, have sway over them,
and against which they have not as yet prevailed. That is
the proposition.

Another proposition, on which they put themselves, is
that whatever may be the law, and whatever the extent of
the facts, if any of these persons believed that there was a
state of war, rightful to be recognized, and believed, in good
faith, that they were fighting against the Government of the
United States, they had a right to seize the property of
United States' citizens; and that, if they believed that they
constituted part of a force co-operating, in any form or ef
fect, with the military power which has risen up against
the United States of America, then, so long as they had that

THE SAVANNAH PRIVATEERS 131

opinion, they, by their own act, and their own construction
of their own act, impose the law upon this Government,
and upon this Bench, and upon this Jury, and compel you
to say to them that if, in taking in a manner which would
have been robbery, this vessel, the Joseph, they were also
fighting against the United States of America, they have not
committed the crime of piracy.

Now, if the Court please, and gentlemen of the Jury, let
us, before we explore and dissect these propositions, — be
fore we discover how utterly subversive they are of any
notions of Government, of fixity in the interpretation of the
law, or certainty in the enforcement of it, — let us see what
you will fairly consider as being proved, as matter of fact,
concerning the condition of affairs in this country. Let us
see what legal discrimination or description of this state of
things is likely to be significant and instructive, in deter
mining the power and authority of the Government, and the
responsibility of these defendants. They began with an
Ordinance of South Carolina, passed on the 20th of Decem
ber of last year, which, in form and substance, simply an
nulled the Ordinance of that State, with which, as they say,
they ratified or accepted the Constitution of the United
States. They then went on with similar proceedings on the
part of the States of Georgia, Alabama, Mississippi, and Flor
ida, showing the establishment and adoption of a Provisional
Constitution, by which they constituted and called themselves
the Confederate States of America. They proved, then,
the organization of the Government, the election of Mr.
Davis and Mr. Stephens as President and Vice-President,
and the appointment of Secretaries of War, and of the
Navy, and other portions of the civil establishment. They
proved, then, the occurrences at Fort Sumter, and gave
particular evidence of the original acts at Charleston — the
firing on the Star of the West, and the correspondence which
then took place between Major Anderson and the Governor

132 SPEECHES OF WILLIAM MAXWELL EVARTS

of South Carolina. They then went on to prove the evacu
ation of Fort Moultrie; the storming of Fort Sumter; the
Proclamation of the President of the United States, of the
15th of April, calling for 75,000 troops; Mr. Davis's Proc
lamation, of the 17th of April, inviting privateers; and then
the President's Proclamation, of the 19th of April, denounc
ing the punishment of piracy against privateers, and putting
under blockade the coasts of the revolted States. The laws
about privateering passed by what is called the Confederate
Government, have, also, been read to you; and this seems to
complete the documentary, and constitutional, and statu
tory proceedings in that disaffected portion of the country.
But what do the prisoners prove further? That an actual
military conflict and collision commenced, has proceeded,
and is now raging in this country, wherein we find, not one
section of the country engaged in a military contest with
another section of the country — not two contending factions,
in the phrase of Vattel, dividing the nation for the isake of
national power — but the Government of the United States,
still standing, without the diminution of one tittle of its
power and dignity — without the displacement or disturb
ance of a single function of its executive, of its legislative,
of its judicial establishments — without the disturbance or
the defection of its army or its navy — without any displace
ment in or among the nations of the world — without any
retreat, on its part, or any repulsion, on the part of any force
whatever, from its general control over the affairs of the
nation, over all its relations to foreign States, over the high
seas, and over every part of the United States themselves,
in their whole length and breadth, except just so far as
military occupation and military contest have controlled
the peaceful maintenance of the authority and laws of the
Government.

Now, this may be conceded for all sides of the controversy.
I do not claim any more than these proofs show, and what

THE SAVANNAH PRIVATEERS 133

we all know to be true; and I am but fair in conceding that
they do show all the proportions and extent which make up a
contest by the forces of the nation, as a nation, against an
armed array, with all the form and circumstances, and with
a number and strength, which make up military aggression
and military attack on the part of these revolting or disaf
fected communities or people.

Now, some observations have been made, at various stages
of this argument, of the course the Government has taken
in its declaration of a blockade, and in its seizure of prizes
by its armed vessels, and its bringing them before the Prize
Courts; and my learned friend, Mr. Brady, has done me the
favor to allude to some particular occasion on which I, on
behalf of the Government, in the Admiralty Court, have
contended for certain principles, which would lead to the
judicial confiscation of prizes, under the law of the land, or
under the law of nations adopted and enforced as part of
the law of the land. Well, now, gentlemen, I understand
and agree that, for certain purposes, there is a condition of
war which forces itself on the attention and duty of Govern
ments, and calls on them to exert the power and force of
war for their protection and maintenance. And I have had
occasion to contend — and the learned Courts have decided —
that this nation, undertaking to suppress an armed military
rebellion, which arrays itself, by land and by sea, in the forms
of naval and military attack, has a right to exert — under the
necessary principles which control and require the action
of a nation for its own preservation, in these circumstances of
danger and of peril — not only the usual magisterial force of the
country — not only the usual criminal laws — not only such
civil posses or aids to the officers of the law as may be ob
tained for their assistance — but to take the army and the
navy, the strength and manhood of the nation, which it can
rally around it, and in every form, and by every authority,
human and divine, suppress and reduce a revolt, a rebellion,

134 SPEECHES OF WILLIAM MAXWELL EVARTS

a treason, that seeks to overthrow this Government in, at
least, a large portion of its territory, and among a large por
tion of its people. In doing so, it may resort — as it has re
sorted — to the method of a warlike blockade, which, by
mere force of naval obstruction, closes the harbors of the
disaffected portion of the country against all commerce.
Having done that, it has a right, in its Admiralty Courts,
to adjudicate upon and condemn as prizes, under the laws
of blockade, all vessels that shall seek to violate the block
ade. Nor, gentlemen, have I ever denied — nor shall I here
deny — that, when the proportions of a civil dissension, or
controversy, come to the port and dignity of war, good
sense and common intelligence require the Government to
recognize it as a question of fact, according to the actual
circumstances of the case, and to act accordingly. I,
therefore, have no difficulty in conceding that, outside of
any question of law and right — outside of any question as to
whether there is a Government down there, whether nominal
or real, or that can be described as having any consistency
of any kind, under our law and our Government — there is
prevailing in this country a controversy, which is carried on
by the methods, and which has the proportions and extent,
of what we call war.

War, gentlemen, as distinguished from peace, is so dis
tinguished by this proposition — that it is a condition in
which force on one side and force on the other are the means
used in the actual prosecution of the controversy. Now,
gentlemen, if the Court please, I believe that that is all
that can be claimed, and all that has been claimed, on behalf
of these prisoners, in regard to the actual facts, and the
condition of things in this country. And I admit that, if
this Government of ours were not a party to this controversy,
— if it looked on it from the outside, as England and France
have done, — our Government would have had the full right
to treat these contending parties, in its Courts and before

THE SAVANNAH PRIVATEERS 135

its laws, as belligerents, engaged in hostilities, as it would
have had an equal right to take the opposite course. Which
course it would have taken, I neither know, nor should you
require to know.

But, I answer to the whole of this, if the Court please,
that it is a war in which the Government recognizes no right
whatever on the part of the persons with whom it is con
tending; and that, in the eye of the law, as well as in the eye
of reason and sound political morality, every person who has,
from the beginning of the first act of levying war against
the United States until now, taken part in this war, actively
and effectively, in any form — who has adhered to the rebels —
who has given aid, information, or help of any kind, wherever
he lives, whether he sends it from New Hampshire or New
York, from Wisconsin or Baltimore — whether he be found
within or without the armed lines — is, in his own overt ac
tions, or open espousal of the side of this warring power,
against the Government of the United States, a traitor and
a rebel. I do not know that there is any proposition what
ever, of law, or any authority whatever, that has been ad
duced by my learned friends, in which they will claim, as
matter of law, that they are not rebels. I invited the atten
tion of my learned friends, as I purposed to call that of the
Court, to the fact, that the difficulty about all this business
was, that the plea of authority or of war, which these pris
oners interposed against the crime of piracy, was nothing
but a plea of their implication in treason. I would like to
hear a sober and solemn proposition from any lawyer, that a
Government, as matter of law, and a Court, as matter of
law, cannot proceed on an infraction of a law against violence
either to person or property, instead of proceeding on an
indictment for treason. The facts proved must, of course,
maintain the personal crime; and there are many degrees of
treason, or facts of treason, which do not include violent crime.
But, to say that a person who has acted as a rebel cannot

136 SPEECHES OF WILLIAM MAXWELL EVARTS

be indicted as an assassin, or that a man who has acted, on
the high seas, as a pirate, if our statutes so pronounce him,
cannot be indicted, tried and convicted as a pirate, because he
could plead, as the shield of his piracy, that he committed
it as part of his treason, is, to my apprehension, entirely new,
and inconsistent with the first principles of justice.

Now, this very statute of piracy is really a general Crimes
Act. The first section is :

"If any person or persons owing allegiance to the United
States of America shall levy war against them, or shall ad
here to their enemies, giving them aid and comfort within
the United States, or elsewhere, and shall be thereof con
victed," "such person or persons shall be adjudged guilty
of treason against the United States, and shall suffer death."

Now, you will observe that treason is not a defence against
piracy; nor is good faith in treason a defence against treason,
or a defence against piracy. What would be the posture of
these prisoners, if, instead of being indicted for piracy,
they were indicted for treason? Should we then hear
anything about this notion that there was a war raging,
and that they were a p/arty engaged in the war? Why, that
is the very definition of treason. Against whom is the war?
Against the United States of America. Did you owe alle
giance to the United States of America? Yes, the citizens
did; and I need not say to you, gentlemen, that those resi
dents who are not citizens owe allegiance. There is no
dispute about that. Those foreigners who are living here
unnaturalized are just as much guilty of treason, if they act
treasonably against the Government, as any of our own
citizens can be. That is the law of England, the law of
treason, the necessary law of civilized communities. If we
are hospitable, if we make no distinction, as we do not, in
this country, between citizens, and foreigners resident here
and protected by our laws, it is very clear we cannot make
any distinction when we come to the question of who are

THE SAVANNAH PRIVATEERS 137

faithful to the laws. So, therefore, if they were indicted for
treason, what would become of all of this defence? It
would be simply a confession in open Court that they were
guilty of treason. Well, then, if they fell back on the prop
osition, — "We thought, in our consciences and judgments,
that either these States had a right to secede, or that
they had a right to carry on a revolution; that they were
oppressed, and were entitled to assert themselves against
an oppressive Government, and we, in good faith, and with
a fair expectation of success, entered into it," — what would
become of them? The answer would be, "Good faith in
your attempt to overthrow the Government does not excuse
you from responsibility for the crime of attempting it."
Our statute is made for the purpose of protecting our Gov
ernment against efforts made, in good faith or in bad faith,
for its overthrow.

And now, in this connection, gentlemen, as your atten
tion, as well as that of the Court, has been repeatedly called
to it, let me advert again to the citation from that en
lightened public writer, Vattel, who has done as much,
perhaps, as our learned friends have suggested, to place on a
sure foundation the amelioration of the law of nations in
time of war, and their intercourse in time of peace, as any
writer and thinker whom our race has produced. You re
member, that he asks — How shall it be, when two contend
ing factions divide a State, in all the forms and extent of
civil war — what shall be the right and what the duty of a
sovereign in this regard? Shall he put himself on the pride
of a king, or on the flattery of a courtier, and say, I am still
monarch, and will enforce against every one of this multi
tude engaged in this rebellion the strict penalties of my laws?
Vattel reasons, and reasons very properly: You must submit
to the principles of humanity and of justice; you must gov
ern your conduct by them, and not proceed to an extermina
tion of your subjects because they have revolted, whether

138 SPEECHES OF WILLIAM MAXWELL EVARTS

with or without cause. You must not enforce the sanctions
of your Government, or maintain its authority, on methods
which would produce a destruction of your people. And you
must not further, by insisting, under the enforced circum
stances which surround you, on the extreme and logical right
of a king, furnish occasion for the contending rebels, who
have their moments of success and power, as well as you, to
retaliate on your loyal people, victims of their struggle on
your behalf, and thrown into the power of your rebellious
subjects, — to retaliate, I say, on them the same extreme pen
alties, without right, without law, but by mere power, which
you have exerted under your claim of right.

And now, gentlemen of the Jury, as the Court very well
understands, this general reasoning, which should govern
the conduct of a Sovereign, or of a Government, against a
mere local insurrection, does not touch the question as to
whether the law of a nation in which the sovereign presides,
and in violation of which the crime of the rebels has been
perpetrated, shall be enforced. There has been, certainly
in modern times, no occasion when a Sovereign has not
drawn, in his discretion, and under the influence of these
principles of humanity and justice, this distinction, and has
not interposed the shield of his own mercy between the of
fences of misled and misguided masses of his people and of
fended laws. We know the difference between law and
its condemnation, and mercy and its saving grace; and we
know that every Government exercises its discretion. And,
I should like to know why these learned counsel, who are
seeking to interpose, as a legal defence on the part of a
criminal, the principles of policy and mercy which should
guide the Government, are disposed to insist that this
Government, in its prosecutions and its trials, has shown a
disposition to absolve great masses of criminals from the
penalties of its laws. I should like to know, when my
learned friend Mr. Brady, near the close of his remarks, sug-

THE SAVANNAH PRIVATEERS 139

gested that there had been no trial for treason, whether this
Government, from the first steps in the outbreak, down to the
final and extensive rage of the war, has not foreborne to take
satisfaction for the wrongs committed against it, and has
not been disposed to carry on and sustain the strength of
the Government, without bloody sacrifices for its main
tenance, and for the offended justice of the land. But it is
certainly very strange if, when a Government influenced by
those principles of humanity of which Vattel speaks, and
which my learned friends so much insist upon, has foreborne,
except in signal instances, or, if you please, in single instances
that are not signal, to assert the standard of the law's
authority and of the Government's right, — that it may be
seen that the sword of justice, although kept sheathed for
the most part, has yet not rusted in its scabbard, and that
the Government is not faithless to itself, or to its laws, its
powers, or its duties, in these particular prosecutions that
have been carried, one to its conclusion in Philadelphia,
and the other to this stage of its progress, here, — it is strange,
indeed, that the appeal is to be thrust upon it — "Do not
include the masses of the misguided men!" and, when it
yields so mercifully to that appeal, and says — "I will limit
myself to the least maintenance and assertion of a right,"
that the answer is to come back: "Why, how execrable — how
abominable, to make distinctions of that kind!"

But, gentlemen, the mercy of the Government, as I have
said to you, remains after conviction, as well as in its deter
mination not to press numerous trials for treason; but it is
an attribute, both in forbearing to try and in forbearing to
execute, which is safely left where the precedents that are
to shape the authority of law cannot be urged against its
exercise. Now, I look upon the conduct and duty of the
Government on somewhat larger considerations than have
been pressed before you here. The Government, it is said,
does not desire the conviction of these men, or, at least,

140 SPEECHES OF WILLIAM MAXWELL EVARTS

should not desire it. The Government does not desire the
blood of any of its misguided people. The Government —
the prosecution — should have no passion, no animosities,
in this or in any other case; and our learned friends have
done us the favor to say that the case is presented to you as
the law should require it to be; that you, and all, are unaf
fected and unimpeded in your judgment; and that, with a
full hearing of what could be said on the part of these crimi
nals, you have the case candidly and openly before you.
Now, gentlemen, the Government, although having a large
measure of discretion, has no right, in a country where the
Government is one wholly of law, to repeal the criminal
law, and no right to leave it without presenting it to the ob
servation, the understanding, and the recognition of all its
citizens, whether in rebellion or not, in its majesty, in its
might, and in its impartiality. The Government has be
hind it the people, and. it has behind it all the great forces
which are breathing on our agitated society, all the strong
passions, all the deep emotions, all the powerful convictions,
which impress the loyal people of this country as to the
outrage, as to the wickedness, as to the perils of this great
rebellion. Do you not recollect how, when the proclama
tion of Mr. Davis invited marauders to prey upon our com
merce, from whatever quarter and from whatever motives —
(patriotism and duty not being requisite before they would
be received) — the cry of the wounded sensibilities of a great
commercial people burst upon this whole scene of conflict?
What was there that as a nation we had more to be proud of >
more to be glad for in our history, than our flag? To think
that in an early stage of what was claimed to be first a con
stitutional, and then a peaceful, and then a deliberate politi
cal agitation and maintenance of right, this last extreme act,
the arming of private persons against private property on
the sea, was appealed to before even a force was drawn on
the field on behalf of the United States of America! The

THE SAVANNAH PRIVATEERS 141

proclamation of the President was but two days old when
privateers were invited to rush to the standard. The
indignation of the community, the sense of outrage and
hatred was so severe and so strong, that at that time, if the
sentiment of the people had been consulted, it would have
found a true expression in what was asserted in the news
papers, in public speeches, in private conversations — that
the duty of every merchantman and of every armed vessel
of the country, which arrested any of these so-called pri
vateers, under this new commission, without a nation and
without authority, was to treat them as pirates caught in
the act, and execute them at the yard-arm by a summary
justice. Well, I need not say to you, gentlemen, that I am
sure you and I and all of us would have had occasion to
regret, in every sense, as wrong, as violent, as unnecessary,
and, therefore, as wholly unjustifiable, on the part of a
powerful nation like ourselves, any such rash execution of
the penalties of the law of nations, and of the law of the land,
while our Government had power on the sea, had authority
on the land, had Courts and laws and juries under its author
ity to inquire and look into the transaction.

The public passions on this subject being all cool at this
time, after an interval of four months or more from the ar
rest, we are here trying this case. Yet my learned friends
can find complaint against the mercy of the Government
and its justice, that it brings any prosecution; and great
complaint is made before you, without the least ground or
cause, as it seems to me, that the prosecution is pressed in a
time of war, when the sentiments of the community are
supposed to be inflamed.

Well, gentlemen, what is the duty of Government, when
it has brought in prisoners arrested on the high seas, but to
deliver them promptly to the civil authorities, as was done
in this case — and then, in the language of the Constitution,
which secures the right to them, to give them a speedy and

142 SPEECHES OF WILLIAM MAXWELL EVARTS

impartial trial? That it is impartial, they all confess. How
speedy is it? They say, they regret that it proceeds in time
of war. Surely, our learned friends do not wish to be under
stood as having had denied to them in this Court any ap
plication which they have made for postponement. The
promptness of the judicial and prosecuting authorities here
had produced this indictment in the month of June, I
believe, the very month in which the prisoners were arrested,
or certainly early in July; and then the Government was
ready to proceed with the trial, so far as I am advised. But,
at any rate, an application — a very proper and necessary
application — was made by our learned friends, that the trial
should be postponed till, I believe, the very day on which it
was brought on. That application was not objected to, was
acquiesced in, and the time was fixed, and no further sugges
tion was made that the prisoners desired further delay; and,
if the Government had undertaken to ask for further delay,
on the ground of being unprepared, there was no fact to
sustain any such application. If it was the wish of the
prisoners, or for their convenience, that there should be
further delay, it was for them to suggest it. But, being
entitled by the Constitution to a speedy as well as an im
partial trial, and the day being fixed by themselves on which
they would be ready, and they being considered ready, and
no difficulty or embarrassment in the way of proof having
been suggested on the part of the Government, it seems to
me very strange that this regret should be expressed, unless
it should take that form of regret which all of us partici
pate in, that the war is not over. That, I agree, is a sub
ject of regret. But how there has ever been any pressure,
or any — the least — exercise of authority adverse to their
wishes in this matter, it is very difficult for me to under
stand.

Now, gentlemen, I approach a part of this discussion which
I confess I would gladly decline. I have not the least ob-

THE SAVANNAH PRIVATEERS 143

jection — no one, I am sure, can feel the least objection — to
the privilege or supposed duty of counsel, who are defending
prisoners on a grave charge, — certainly not in a case which
includes, as a possible result, the penalty of their clients'
lives, — to go into all the inquiries, discussions and arguments,
however extensive, varied, or remote, that can affect the
judgment of the Jury, properly or fairly, or that can rightly be
invoked. But, I confess that, looking at the very inter
esting, able, extensive and numerous arguments, theories
and illustrations, that have been presented in succession by,
I think, in one form or another, seven counsel for these
prisoners, as the introduction into a judicial forum, and
before a Jury, of inquiries concerning the theories of Gov
ernment, the course of politics, the occasion of strife on one
side or the other, within the region of politics and the region
of peace, in any portion of the great communities that com
posed this powerful nation — in that point of view, I aver
they seem to me very little inviting and instructive, as they
certainly are extremely unusual in forensic discussions.
Certainly, gentlemen of the Jury, we must conceive some
starting point somewhere in the stability of human affairs,
as they are entrusted to the control and defence of human
Governments. But, in the very persistent and resolute
views of the learned counsel upon this point— first on the
right of secession as constitutional; second, if not con
stitutional, as being supposed by somebody to be constitu
tional; third, on the right of revolution as existing on the
part of a people oppressed, or deeming themselves oppressed,
to try their strength in the overthrow of the subsisting
Government; fourth, on the right to press the discontents
inside of civil war; and then finally and at last, that whoever
thinks the Government oppresses him, or thinks that a
better Government would suit his case, has not only the
right to try the venture, but that, unsuccessful, or at any
stage of the effort, his right becomes so complete that the

144 SPEECHES OP WILLIAM MAXWELL EVARTS

Government must and should surrender at once and to
every attempt — I see only what is equivalent to a subver
sion of Government,'and to saying that the right of revolution,
in substance and in fact, involves the right of Government
in the first place, and its duty in the second place, to sur
render to the revolutionist, and to treat him as having
overthrown it in point of law, and in contemplation of its
duty. That is a proposition which I cannot understand.

Nevertheless, gentlemen, these subjects have been so ex
tensively opened, and in so many points attacks have been
made upon what seems to me not only the very vital struc
ture and necessary support of this, our Government, but the
very necessary and indispensable support of any Govern
ment whatever, and we have been so distinctly challenged,
both on the ground of an absolute right to overthrow this
Government, whenever any State thinks fit — and, next,
upon the clear right, on general principles of human equity,
of each State to raise itself against any Government with
which it is dissatisfied — and upon the general right of con
science — as well as on the complete support by what has
been assumed to have been the parallel case, on all those
principles, of the conduct of the Colonies which became the
United States of America and established our Government —
that I shall find it necessary, in the discharge of my duty, to
say something, however briefly, on that subject. Now,
gentlemen, these are novel discussions in a Court of Justice,
within the United States of America. We have talked about
the oppressions of other nations, and rejoiced in our exemp
tion from all of them, under the free, and benignant, and
powerful Government which was, by the favor of Providence,
established by the wisdom, and courage, and virtue of our
ancestors. We had, for more than two generations, reposed
under the shadow of our all-protecting Government, with
the same conscious security as under the firmament of the
heavens. We knew, to be sure, that for all that made life

THE SAVANNAH PRIVATEERS 145

hopeful and valuable — for all that made life possible — we
depended upon the all-protecting power, and the continued
favor of Divine Providence. We knew, just as well, that,
without civil society, without equal and benignant laws,
without the administration of justice, without the main
tenance of commerce, without a suitable Government, with
out a powerful nationality, all the motives and springs of
human exertion and labor would be dried up at their source.
But we felt no more secure in the Divine promise that "sum
mer and winter, seed-time and harvest," should not cease^
than we did in the permanent endurance of that great fabric
established by the wisdom and the courage of a renowned
ancestry, to be the habitation of liberty and justice for us
and our children to every generation. We felt no solicitude
whatever that this great structure of our constitutional
liberties should pass away as a scroll, or its firm power crumble
in the dust. But, by the actual circumstances of our situa
tion, — and, if not by them, certainly by the destructive
theories which are presented for your consideration, — it
becomes necessary for us, as citizens, and, in the judgment
at least of the learned counsel, for these prisoners, for you,
and for this learned Court, in the conduct of this trial, and in
the disposition of the issue of "guilty " or "not guilty " as to
these prisoners, to pay some attention to these considerations.
If, in the order of this discussion, gentlemen, I should not
seem to follow in any degree, or even to include by name,
many of the propositions, of the distinctions, and of the
arguments which our learned friends have pressed against
the whole solidity, the whole character, the whole per
manence, the whole strength of our Government, I yet think
you will find that I have included the principal ideas they
have advanced, and have commented upon the views that
seem to us — at least so far as we think them to be at all
connected with this case — suitable to be considered.

Now, gentlemen, let us start with this business where our
12

146 SPEECHES OF WILLIAM MAXWELL EVARTS

friends, in their argument, where many of the philosophers,
and partisans, and statesmen of the Southern people, have
found many of their grounds of support. Let us start with
this very subject of the American Revolution, with the condi
tion that we were in, and with the place that we found our
selves raised to, among the nations of the earth, as the result
of that great transaction in the affairs of men. What were
we before the Revolution commenced? Was any one of
the original thirteen States out of which our nation was made,
and which, previous to the Revolution, were Colonies of
Great Britain — was any one of them an independent nation
at the time they all slumbered under the protection of the
British Crown? Why, not only had they not the least
pretension to be a nation, any of them, but they had scarcely
the position of a thoroughly incorporated part of the great
nation of England. Now, how did they stand towards the
British power, and under what motives of dignity, and im
portance, and necessity did they undertake their severance
from the parent country? With all their history of coloniza
tion, the settlement of their different charters, and the
changes they went through, I will not detain you. For
general purposes, we all know enough, and I, certainly not
more than the rest of you. This, however, was their con
dition. The population were all subjects of the British
Crown; and they all had forms of local Government which
they had derived from the British Crown; and they claimed
and possessed, as I suppose, all the civil and political rights
of Englishmen. They were not subject to any despotic
power, but claimed and possessed that right to a share in
the Government, which was the privilege of Englishmen, and
under which they protected themselves against the encroach
ment of the Crown. But, in England, as you know, the
monarch was attended by his Houses of Parliament, and
all the power of the Government was controlled by the
people, through their representatives in the House of Com-

THE SAVANNAH PRIVATEERS 147

mons. And how? Why, because, although the King had
prerogatives, executive authority, a vast degree of pomp and
wealth, and of strength, yet the people, represented in the
House of Commons, by controlling the question of taxation,
held all the wealth of the kingdom — the power of the purse,
as it was described — and without supplies, without money
for the army, for the navy, for all the purposes of Govern
ment, what authority, actual and effective, had the Crown
of England? These were the rights of Englishmen; these
made them a free people, not subject to despotic power.
They cherished it and loved it. Now, what relation did
these Colonies, becoming off-shoots from the great fabric
of the national frame of England, bring with them, and
assert, and enjoy here? Why, the king was their king,
just as he was the king of the people whom they left in
England, but they had their legislatures here, which made
their laws for them in Massachusetts, in Connecticut, in
Virginia, in South Carolina, and in the rest of these provinces;
and among these laws, in the power of law-making, they had
asserted, and possessed, and enjoyed the right of laying
taxes for the expenses and charges of their Government.
They formed no part of the Parliament of England, but,
as the subjects of England within the four seas were obe
dient to the king, and were represented in the Parliament
that made laws for them, the Colonies of America were sub
ject to the king, but had local legislatures to pass laws,
raise and levy taxes, and graduate the expenses and con
tributions which they would bear.

Now, gentlemen, it is quite true that the local legislatures
were subject to the revision, as to their statutes, to a certain
extent, of the sovereign power of England. The king had
the veto power — as he had the veto power over Acts of Par
liament- — the power of revision — and other powers, as may
have been the casual outgrowth of the forms of different
charters. In an evil hour — as these Colonies, from being

148 SPEECHES OF WILLIAM MAXWELL EVARTS

poor, despised, and feeble communities, gained a strength
and numbers that attracted the attention of the Crown of
England, as important and productive communities, capable
of being taxed — the Government undertook to assert, as the
principle of the Constitution of England, that the king and
Parliament, sitting in London, could tax as they pleased,
when they pleased, and in the form, and on the subjects,
and to the amount, they pleased, the free people of these
Colonies.

Now, you will understand, there was not an incidental,
a casual, a limited subject of controversy, of right, of danger,
but there was an attack upon the first principles of English
liberty, which prevented the English people from being the
subjects of a despot, and an attempt to make us subject to
a despotic Government, in which we took no share, and in
which we had no control of the power of the purse. What
matter did it make to us that, instead of there being a
despotic authority, in which we had no share or representa
tion of vote or voice, exercised by the king alone, it was
exercised by the king and Parliament? They were both of
them powers of Government that were away from us, and in
which we had no share; and we, then, forewarned by the
voices of the great statesmen whose sentiments have been
read to you, saw in time that, whatever might be said or
thought of the particular exercise of authority, the proposi
tion was that we were not entitled to the privilege and free
dom of Englishmen, but that the power was confined to
those who resided within the four seas — within the islands
that made up that Kingdom — and that we were provinces
which their king and their Parliament governed. Therefore,
you may call it a question of taxation, and my friend may
call it "a question of three pence a pound on tea;" but it was
the proposition that the power of the purse, in this country,
resided in England. We had not been accustomed to it.
We did not believe in it. And our first revolutionary act

THE SAVANNAH PRIVATEERS 149

was to fight for our rights as Englishmen (subject to the
King, whose power we admitted), and to assert the rights
of our local legislature in the overthrow of this usurpation of
Parliament. Now, of the course which we took before we
resorted to the violence and vehemence of war, I shall have
hereafter occasion to present you, very briefly and concha
sively, a condensed recital; but this notion, that we here
claimed any right to rise up against a Government that was
in accordance with our rights, and was such as we had made
it, and as we enjoyed it, equally with all others over whom it
was exercised — which lies at the bottom of the revolt in this
country — had not the least place, or the opportunity of a
place, in our relations with England. We expected and
desired, as the correspondence of Washington shows —
as some of the observations of Hamilton, I think, read in
your presence by the learned counsel, show — as the records
of history show= — we expected to establish security for our
selves under the British Crown, and as a part of the British
Empire, and to maintain the right of Englishmen, to wit,
the right of legislation and taxation where we were repre
sented. But the parent Government, against the voice and
counsels of such statesmen as Burke, and the warnings of
such powerful champions of liberty as Chatham, under
took to insist, upon the extreme logic of their Constitution,
that we were British subjects, and that the king and Par
liament governed all British subjects; and they had a
theory, I believe, that we were represented in Parliament,
as one English jurist put it, in the fact that all the grants in
all the Colonies were, under the force of English law, "to
have and to hold as the Manor of East Greenwich," and
that, as the Manor of East Greenwich was represented in
Parliament, all this people were represented. But this did
not suit our notions. The lawyers of this country, the
Judges of this country and many of the lawyers of England,
as mere matter of strict legal right, held that the American

150 SPEECHES OF WILLIAM MAXWELL EVARTS

view of the Constitution of England, and of the rights of
Englishmen who enjoy it, was the true one. But, at any rate,
it was not upon an irritation about public sentiment; nor was
it upon the pressure of public taxes ; nor because we did not
constitute a majority of Parliament; nor anything of that
kind; but it was on clear criteria of whether we were slaves,
as Hamilton presents it, or part of the free people of a Gov
ernment. We, therefore, by degrees, and somewhat uncon
scious, perhaps, of our own enlightened progress, but yet
wisely, fortunately, prosperously, determined upon our inde
pendence, as the necessary means of securing those rights
which were denied to us under the Constitution of our country.
Now, there was not the least pretence of the right of a
people to overthrow a Government because they so desire
— which seems to be the proposition here — because they
think they do not like it — and because there are some points
or difficulties in its working that they would like to have
adjusted. No; it was on the mere proposition that the
working of the administration in England was converting
us into subjects, not of the Crown, with the rights of English
men, but subjects of the despotic power of Parliament and
the King of England. Now, how did we go to work, and
what was the result of that Revolution? In the first place,
did we ever become thirteen nations? Was Massachusetts
a nation? Was South Carolina a nation? Did either of
them ever declare its independence, or ever engage in a war,
by itself and of itself, against England, to accomplish its
independence? No, never; the first and preliminary step
before independence was union. The circumstances of the
Colonies, we may well believe, made it absolutely necessary
that they should settle beforehand the question of whether
they could combine themselves into one effectual, national
force, to contend with England, before they undertook to
fight her. It was pretty plain that Massachusetts could not
conquer England, or its own independence, and that Vir-

THE SAVANNAH PRIVATEERS 151

ginia could not do so, and that the New England States
alone could not do it, and that the Southern States alone
could not do it. It was quite plain that New York, Penn
sylvania and New Jersey, alone, could not do it; and, there
fore, in the very womb, as it were, and preceding our
birth as a nation, we were articulated together into the
frame of one people, one community, one nationality. Now,
however imperfectly, and however clumsily, and however
unsuitably we were first connected, and however necessary
and serious the changes which substituted for that inchoate
shape of nationality the complete, firm, noble and perfect
structure which made us one people as the United States of
America, yet you will find, in all the documents, and in all the
history, that there was a United States of America, in some
form represented, before there was anything like a separa
tion, on the part of any of the Colonies, from the parent
country, except in these discontents, and these efforts at an
assertion of our liberties, which had a local origin.

The great part of the argument of my learned friend rests
upon the fact that these States were nations, each one of them,
once upon a time; and, that, having made for themselves
this Government, they have remained nations, in it and
under it, ever since, subject only to the Confederate authority,
in the terms of a certain instrument called a compact, and
with the reserved right of nationality ready, at all times, to
spring forth and manifest itself in complete separation of
any one of the States from the rest. And I find, strangely
enough, in the argument as well of the promoters of these
political movements at the South as in the voice of my
learned friends who have commented on this subject, a
reference to the early diplomacy of the United States, as
indicative of the fact that they were separate and independent
communities — regarded as such by the contracting Powers
into connection with whom they were brought by their
treaties and conventions, and, more particularly, in the

152 SPEECHES OF WILLIAM MAXWELL EVARTS

definitive treaty whereby their independence was recog
nized by Great Britain. Now, if the Court please, both
upon the point (if it can be called a point, connected with
your judicial inquiry) that these Colonies were formed into
a Union before they secured their national independence,
and that there was no moment of time wherein they were
not included, either as United Colonies, under the parental
protection of Great Britain, or as united in a struggling
Provisional Government, or in the perfect Government of
the Confederation, and, finally, under the present Constitu
tion — I apprehend that there can be no doubt that our di
plomacy, commencing, in 1778, with the Treaty of Alliance
with France, contains the same enumeration of States that
is so much relied upon by the reasoners for independent
nationality on the part of all the States. In the preamble
to the Treaty, found at page 6 of the 8th volume of the
Statutes at Large, the language was: "The Most Christian
King and the United States of North America, to wit, New
Hampshire, etc., having this day concluded," etc. The
United States are here treated as a strictly single power,
with whom his Most Christian Majesty comes into league;
and the credentials or ratifications pursued the same form.
The Treaty of Commerce with the same nation, made at the
same time, follows the same idea; and the Treaty with the
Netherlands, made in 1782, contains the same enumeration
of the States, and speaks of each of the contracting parties
as being "countries." The Convention with the Nether
lands, on page 50 of the same volume, and which was a part
of the same diplomatic arrangement, and made at the same
time, speaks, in Article 1, of the vessels of the "two nations."
Now, the only argument of my learned friends, on the two
treaties with Great Britain, of November, 1782, and Sep
tember, 1783, is, that they are an agreement between
England and the thirteen nations ; and it is founded upon the
fact, that the United States of America, after being described

THE SAVANNAH PRIVATEERS 153

as such, are enumerated under a "viz." as being so many
provinces. Now, the 5th and 6th articles of that Conven
tion of 1782 with the Netherlands speak of "the vessels of
war and privateers of one and of the other of the two na
tions." So that, pending the Revolution, we certainly,
in the only acts of nationality that were possible for a con
tending power, set ourselves forth as only one nation, and
were so recognized. And the same views are derivable from
the language of the Provisional Treaty with Great Britain of
November, 1782, and of the Definitive Treaty of Peace
with Great Britain of September, 1783, which Treaties are
to be found at pages 54 and 80 of the same 8th volume. The
Preamble to the latter Treaty recites:

"It having pleased the Divine Providence to dispose the
hearts of the most serene and most potent Prince George the
Third, &c., and of the United States of America to forget all
past misunderstandings and differences that have unhappily
interrupted the good correspondence and friendship, which
they mutually wish to restore; and to establish such a bene
ficial and satisfactory intercourse between the two countries,
&c."

And then comes the 1st article, which is identical in lan
guage with the Treaty with the Netherlands, of 1782: " His
Britannic Majesty acknowledges the said United States,
viz., New Hampshire, etc., to be free, sovereign and inde
pendent States."

The United States had previously, in the Treaty, been
spoken of as one country, and the language I have just
quoted is only a statement of the provinces of which they
were composed; for, we all know, as matter of history, that
there were other British provinces that might have joined in
this Revolution, and might, perhaps, have been included in
the settlement of peace; and this rendered it suitable and
necessary that the provinces whose independence was ac
knowledged should be specifically described. But, in the

154 SPEECHES OF WILLIAM MAXWELL EVARTS

2d article, so far from the separateness of the nationalities
with which the convention was made being at all recognized,
that important article, which is the one of boundaries, goes
on to bound the entire nation as one undivided and integral
territory, without the least attention to the divisions between
them. It may be very well to say that England was only
concerned to have one continuous boundary, coterminous to
her own possessions, described, and that that was the object
of the geographical bounding; but the entire Western,
Eastern, and Southern boundaries are gone through as
those of one integral nation. The 3rd article speaks, again,
of securing certain rights to the citizens or inhabitants of
"both countries." Now, that "country" and "nation," in
the language of diplomacy, are descriptive, not of territory,
in either case, but of the nationality, admits of no discussion ;
and yet, I believe that the most substantial of all the cita
tions and of all the propositions from the documentary evi
dence of the Revolution, which seeks to make out the fact
that we came into being as thirteen nations, grows out of
this British Treaty, which, in its preamble, takes notice of
but one country, called the United States of America, and,
then, in recognition of the United States of America, names
the States under a "viz." — they being included in the single
collective nation before mentioned as the United States.

Now, gentlemen, after the Revolution had completed our
independence, how were we left as respects our rights, our
interests, our hopes, and our prospects on this very subject
of nationality? Why, we were left in this condition — that
we always had been accustomed to a parent or general
Government, and to a local subordinate administration of
our domestic affairs within the limits of our particular prov
inces. Under the good fortune, as well as the great wisdom
which saw that this arrangement — a new one — quite a new
one in the affairs of men — now that we were completely
independent, and capable of being masters of our whole

THE SAVANNAH PRIVATEERS 155

Government, both local and general, admitted of none of
these discontents and dangers which belonged to our being
subject collectively to the dominion of a remote power be
yond the seas — under the good fortune and great wisdom
of that opportunity, we undertook and determined to estab
lish, and had already established provisionally, a complete
Government, which we supposed would answer the purpose
of having a general representation and protection of our
selves toward the world at large, and yet would limit the
local power and authority, consistently with good and free
Government, as respected populations homogeneous and
acquainted with each other, and with their own wants and
the methods of supplying them.

The Articles of Confederation, framed during the Revolu
tion, ratified at different times during its progress and at its
close, was a Government under which we subsisted — for how
long? Until 1787 — but four years from the time that we had
an independent nationality — we were satisfied with the
imperfect Union that our provisional Government had orig
inated, and that we had shaped into somewhat more con
sistency under the Articles of Confederation. Why did we
not stay under that? We were a feeble community. We
had but little population, but little wealth. We had but few
occasions of discontent that belong to great, and wealthy,
and populous States. But the fault, the difficulty, was,
that there were in the Confederation too many features
which our learned friends, their clients here, and theoretical
teachers of theirs elsewhere, contend, make the distinctive
character of the American Constitution, as finally developed
and established. The difficulty was that, although we were
apparently and intentionally a nation, as respected the rest
of the world, and for all the purposes of common interest
and common protection and common development, yet this
element of separate independency, and these views that the
Government thus framed operated, not as a Government over

156 SPEECHES OF WILLIAM MAXWELL EVARTS

individuals, but as a Government over local communities in
an organized form, made its working imperfect, impossible,
and the necessary occasion of dissension, and weakness, and
hostility, and left it without the least power, except by con
tinued force and war, to maintain nationality.

Now, it was not because we were sovereigns, all of us, be
cause we had departed from sovereignty. There was not
the least right in any State to send an ambassador, or make a
treaty, or have anything signed; but the vice was, that the
General Government had no power or authority, directly,
on the citizens of the States, but had to send its mandates for
contributions to the common treasury, and its requirements
for quotas for the common army and the common navy,
directly to the States. Now, I tarry no longer on this than
to say, that the brief experience of four years showed that it
was an impossible proposition for a Government, that there
should be in it even these imperfect, clipped and crippled
independencies, that were made out of the original provinces
and called States. In 1787, the great Convention had its
origin, and in 1789 the adoption of the Constitution made
something that was supposed to be, and entitled to be, and
our citizens required to be, as completely different, on this
question of double sovereignty, and divided allegiance, and
equal right of the nation to require and of a State to refuse,
as was possible. If, indeed, instead of the Confederation
having changed itself from an imperfect connection of States
limited and reduced in sovereignty, into a Government
where the nation is the coequal and co-ordinate power (as
our friends express it) of every State in it, why surely our
brief experience of weakness and disorder, and of contempt,
such as was visited upon us by the various nations with
whom we had made treaties, that we could not fulfil them,
found, in the practical wisdom of the intelligent American
people, but a very imperfect and unsatisfactory solution, if
the theories of the learned counsel are correct, that these

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United States are, on the one part, a power, and on the other
part, thirty-four different powers, all sovereign, and the two
having complete rights of sovereignty, and dividing the
allegiance of our citizens in every part of our territory.

Now, the language of the Constitution is familiar to all
of you. That it embodies the principle of a General Gov
ernment acting upon all the States, and upon you, and upon
me, and upon every one in the United States; that it has its
own established Courts — its own mandate by which jurors
are brought together — its own laws upon all the subjects
that are attributed to its authority; that there is an estab
lishment known as the Supreme Court, which, with the
appropriate inferior establishments, controls and finally
disposes of every question of law, and right, and political
power, and political duty; and that this adjusted system of
one nation with distributed local power, is, in its working,
adequate to all the varied occasions which human life devel
ops — we all know. We have lived under it, we have pros
pered under it, we have been made a great nation, a united
people, free, happy, and powerful.

Now, gentlemen, it is said — and several points in our
history have been appealed to, as well as the disturbances
that have torn our country for the last year — that this com
plete and independent sovereignty of the States has been
recognized. Now, there have been several occasions on
which this subject has come up. The first was under the
administration of the first successor of General Washington —
John Adams — when the famous Virginia and Kentucky
resolutions had their origin. About these one of my learned
friends gave you a very extensive discussion, and another
frankly admitted that he could not understand the doctrine
of co-ordinate, equal sovereignty of two powers within the
same State. On the subject of these Virginia resolutions,
and on the question of whether they were the recognized
doctrines of this Government, I ask your attention to but

158 SPEECHES OF WILLIAM MAXWELL EVARTS

one consideration of the most conclusive character, and to
be disposed of in the briefest possible space.

The proposition of the Virginia resolutions was, that the
States who are parties to the compact have the right and are
in duty bound to interpose to arrest the progress of the evil
(that is, when unconstitutional laws are passed), and to
maintain, within their respective limits, the authority, rights,
and liberties pertaining to them. That is to say, that where
any law is passed by the Congress of the United States,
which the State of Virginia, in its wise and independent
judgment, pronounces to be in excess of the Constitutional
power, it is its right and duty to interpose. How? By
secession? No. By rebellion? No. But by protecting
and maintaining, within its territory, the authority, rights,
and liberties pertaining to it. Now, these resolutions grew
out of what? Certain laws, one called the "Alien" and the
other the "Sedition" law, rendered necessary by the dis
turbances communicated by the French revolution to this
country, and which necessarily came within the doctrine of
my friend, Mr. Larocque, that there is not the least right
of secession when the laws are capable of being the subject of
judicial investigation. Well, those laws were capable of
being the subject of judicial investigation, and the resolutions
did not claim the right of secession, but of nullification.
My learned friend says that the doctrine of "secession" has
no ground.

But what was the fate of the "Virginia resolutions"?
For Virginia did not pretend that she had all the wisdom,
and virtue, and patriotism of the country within her borders.
She sent these resolutions to every State in the Union, and
desired the opinion of their legislatures and their governors
on the subject. Kentucky passed similar resolutions; and
Kentucky, you will notice, had just been made a State, in
1793 — an off-shoot from Virginia; and, as the gentleman has
told you, Mr. Madison wrote the resolutions of Virginia, and

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Mr. Jefferson those of Kentucky. So that there was not any
great independent support, in either State, for the views,
thus identical, and thus promulgated by these two Virginians.
Their great patriotism, and wisdom, and intelligence, are a
part of the inheritance we are all proud of. But, when the
appeal was sent for concurrence to New York, South Caro
lina, Georgia, Massachusetts, and the New England States,
what was the result? Why, Kentucky, in 1799, regrets
that, of all the States, none, except Virginia, acquiesced in
the doctrines; and the answers of every one of the States
that made response are contained in the record which also
contains the Virginia and Kentucky resolutions. And that
doctrine there exploded, and exploded forever, until its
recurrence in the shape of nullification, in South Carolina,
as part of the doctrines of this Constitution.

We had another pressure on the subject of local dissatis
faction, in 1812; and then the seat of discontent and heresy
was New England. I do not contend, and never did con
tend, in any views I have taken of the history of affairs in
this country, that the people of any portion of it have a
right to set themselves in judgment as superiors over the
people of any other portion. I never have had any doubt
that, just as circumstances press on the interests of one com
munity or another, just so are they likely to carry their
theoretical opinions on the questions of the power of their
Government and of their own rights, and just so to express
themselves. So long as they confine themselves to resolu
tions and politics, to the hustings, and to the elections,
nobody cares very much what their political theories are.
But my learned friend Mr. Brady has taken the greatest
satisfaction in showing, that this notion of the co-ordinate
authority of the States with the nation, found its expression
and adoption, during the war of 1812, in some of the States
of New England. Well, gentlemen, I believe that all sober
and sensible people agree that, whether or not the New Eng-

160 SPEECHES OF WILLIAM MAXWELL EVARTS

land States carried their heresies to the extent of justifying
the nullification of a law, or the revocation of their assent to
the Confederacy, and their withdrawal from the common
Government, the doctrines there maintained were not suit
able for the strength and the harmony, for the unity and
the permanency, of the American Government. I believe
that the condemnation of those principles that followed,
from South Carolina, from Virginia, from New York, and
from other parts of the country, and the resistance which a
large, and important, and intelligent, and influential portion
of their own local community manifested, exterminated
those heresies forever from the New England mind.

Next, we come to 1832, and then, under the special instruc
tion and authority of a great Southern statesman (Mr. Cal-
houn) whose acuteness and power of reasoning have certainly
been scarcely, if at all, surpassed by any of our great men,
the State of South Carolina undertook, not to secede, but
to nullify ; and yet Mr. Larocque says, that this pet doctrine
of Mr. Calhoun, — nullification, and nothing else, — is the
absurdest thing ever presented in this country; and we are
fortunate, I suppose, in not having wrecked our Union upon
that doctrine.

Now we come, next, to the doctrine of secession. Nulli
fication, rejected in 1798 by all the States, except Virginia
and Kentucky, and never revived by them, — nullification,
rejected by the sober sense of the American People, — nulli
fication was put down by the strong will of Jackson, in 1832,
— having no place to disturb the strength and hopes and
future of this country. And what do we find is the proposi
tion now put forward, as matter of law, to your Honors, to
relieve armed and open war from the penalties of treason,
and from the condemnation of a lesser crime? What is it, as
unfolded here by the learned advocate (Mr. Larocque), with
all his acuteness, but so manifest an absurdity that its recog
nition by a lawyer, or an intelligent Jury seems almost impos-

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sible? It is this: This Union has its power, its authority,
its laws. It acts directly upon the individuals inside of
every State, and they owe it allegiance as their Government.
It is a Government which is limited, in the exercise of its
power, to certain general and common objects, not inter
fering with the domestic affairs of any community. Within
that same State there is a State Government, framed into
this General Government, to be certainly a part of it in its
territories, a part of it in its population, a part of it in every
organization, and every department of its Government.
The whole body of its administration of law, the Legislature
and the Executive, are bound, by a particular oath, to sus
tain the Constitution of the United States. But, although
it is true that the State Government has authority only
where the United States Government has not, and that the
United States have authority only where the State has not;
and although there is a written Constitution, which says what
the line of separation is; and although there is a Supreme
Court, which, when they come into collision, has authority to
determine between them, and no case whatever, affecting
the right or the conduct of any individual man, can be sub
tracted from its decision; yet, when there comes a difference
between the State and the General Government, the State
has the moral right, and political right, to insist upon its
view, and to maintain it by force of arms, and the General
Government has the right to insist upon its view, and to
maintain it by force of arms. And then we have this poor
predicament for every citizen of that unlucky State, — that
he is bound by allegiance, and under the penalty of treason,
to follow each and both of these powers. And as, should he
follow the State, the United States, if it be treason, would
hang him, and, if he should follow the United States, the
State, if it be treason, would hang him, this peculiar and
whimsical result is produced, — that when the United States
undertake to hang him for treason his answer is — "Why, if I

13

162 SPEECHES OF WILLIAM MAXWELL EVARTS

had not done "as I did, the State would have hanged me
for treason, and, surely I cannot be compelled to be hanged
one way or the other — so, I must be protected from hanging,
as to both!" Well, that, I admit, is a sensible way to get
out of the difficulty, for the man and for the argument, if you
can do it. But it is a peculiar result, to start with two sover
eigns, each of which has a right over the citizen, and to end
with the citizen's right to choose which he shall serve, and
to throw it in the face of offended majesty and justice —
"Why, your statute of treason is repealed as against me,
because the State, of which I am a subject, has counseled a
particular course of conduct!"

Now, gentlemen, my learned friend qualifies even this
theory — which probably must fall within the condemnation
of the perhaps somewhat harsh and rough suggestion of
Mr. Justice Grier, of a "political platitude" — by the sug
gestion that it only applies to questions where the United
States cannot settle the controversy. And when my learned
friend is looking around for an instance or an occasion that is
likely to arise in human affairs, and in this nation, and in
this time of ours, he is obliged to resort to the most extraord
inary and extravagant proposition by way of illustration,
and one that has, in itself, so many of the ingredients of
remoteness and impossibility, that you can hardly think a
Government deficient in not having provided for it. He
says, first — suppose we have a President, who is a Massa
chusetts man. Well, that is not very likely in the course
of politics at present. And then, suppose that he is a bad
man, — which, probably, my learned friends would think
not as unlikely as I should wish it to be. And, then, sup
pose he should undertake to build up Boston, in its commerce,
at the expense of New York; and should put a blockading
squadron outside of New York, by mere force of caprice
and tyranny, without any law, and without any provision
for the payment of the men of the Navy, or any commission

THE SAVANNAH PRIVATEERS 163

or authority to any of them under which they could find
they were protected for what they should do, in actually and
effectually blockading our port. My learned friend acknowl
edges that this is a pretty violent sort of suggestion, and
that no man in his senses would pretend to do such a thing,
however bad he was, unless he could find a reasonable sort
of pretext for it. Therefore he would, wisely and craftily,
pretend that he had private advices that England was going
to bombard New York. Now that is the practical case cre
ated by my learned friend's ingenuity and reflection, as a con
tingency in which this contest by war between New York
and the United States of America would be the only prac
tical and sensible mode of protecting our commerce, and
keeping you and me in the enjoyment of our rights as citi
zens of the State of New York. Well, to begin with, if we
had a fleet off New York harbor, what is there that would
require vessels to go to Boston instead of to Philadelphia,
Baltimore, and other places that are open? In the second
place, how long could we be at war, and how great an
army could we raise in New York, to put in the field
against the Federal Government, before this pretence of
private advices that England was going to bombard New
York, would pass away, and the naked deformity of this
bad Massachusetts President be exposed? Why, gentle
men, it is too true to need suggestion, that the wisdom which
made this a Government over all individual citizens, and
made every case of right and interest that touches the pocket
and person of any man in it a question of judicial settlement,
made it a Government which requires for the solution of
none of the controversies within it, a resort to the last appeal
— to battle, and the right of kings.

SECOND DAY'S ARGUMENT

Gentlemen of the Jury: In resuming the course of my
remarks, already necessarily drawn to a very considerable
length, I must recall to your attention the point that I had

164 SPEECHES OF WILLIAM MAXWELL EVARTS

reached when the Court adjourned. I was speaking of this
right of secession, as inconsistent with the frame, the purpose,
and the occasion upon which the General Government was
formed; and of the illustration invented by my learned
friend, and so improbable in its circumstances, of the posi
tion of the United States and one of the States of the Union,
that could bring into play and justify this resort to armed
opposition. I had said what I had to say, for the most part,
as to the absurdity and improbability of the case supposed,
and the inadequacy, the worthlessness, the chimerical
nature of the remedy proposed. Now, you will observe
that, in the case supposed, the blockade of New York was to
be without law, without authority, upon the mere capricious
pretence of the President — a pretence so absurd that it
could not stand the inspection of the people for a moment.
What is the use of a pretence unless it is a cover for the act
which it is intended to cloak? In such a case, the only
proper, peaceful course would be to raise the question, which
might be raised judicially, by attempting, in a peaceful
manner, to pass the blockade, and throw the consequences
upon the subordinate officers who attempted to execute the
mere usurpation of the President, and, following the declara
tion of the Divine writings, that "wisdom is better than
weapons of war," wait until the question could be disposed
of under the Constitution of the United States. For you
will observe that, in the case supposed, there is no threat to
the integrity, no threat to the authority, no threat to the
existence of the State Government, or its Constitution; but
an impeding of the trade or interests of the people of this
city, and of the residents of all parts of the country inter
ested in the commerce of New York. That port is not the
port of New York alone. It is the port of the United States
of America, and all the communities in the Western country,
who derive their supplies of foreign commodities through
our internal navigation, when commerce has introduced

THE SAVANNAH PRIVATEERS 165

them into this port, are just as much affected — just as much
injured and oppressed — by this blockade of our great port
and emporium, as are the people of the State of New York.
So that, so far from its being a collision between the Gov
ernment of the State of New York and the Government of
the United States, it is a violent oppression, by usurpation
— exposing to the highest penalties of the law the magistrate
who has attempted it — exercised upon the people of the
United States wherever residing, in the far West, in the
surrounding States, in the whole country, who are inter
ested in the maintenance of the commerce of this port. I
need not say that the action of our institutions provides a
ready solution for this difficulty. Two or three weeks must
bring to the notice of every one the frivolity of the pretence
of the Executive, that there was a threat of armed attack
by a foreign nation. But if two or three weeks should bring
the evidence that this was not an idle fear, and that, by
information conveyed to the Government, this threat was
substantial, and was followed by its attempted execution, —
why, then, how absurd the proposition that, under the
opinion of the State of New York that this was but an idle
pretext, for purposes of oppression, the State should fly into
arms against the power exercised to protect the city from
foreign attack! The working of our affairs, which brings
around the session of Congress at a time fixed by law — not
at all determinate by the will of the President — exposes
him to the grand inquest of the people, which sits upon his
crime, and, by his presentation and trial before the great
Court of Impeachment, in the course of one week — nay, in
scarcely more than one day after its coming into session —
both stamps this act as an usurpation, and dispossesses the
magistrate who has violated the Constitution. And yet,
rather than wait for this assertion of the power of the Con
stitution peacefully to depose the usurping magistrate, my
friend must resort to this violent intervention of armed

166 SPEECHES OF WILLIAM MAXWELL EVARTS

collision, that would keep us — in theory, at least — constantly
maintaining our rights by the mere method of force, and
would make of this Government — at the same time that
they eulogize the founders of it, as the best and wisest of
men — but an organization of armed hostilities, and its
framers only the architects of an ever-impending ruin!

My learned friend, Mr. Brady, has asked my attention
to the solution of a case wherein he thinks the State Govern
ment might be called upon to protect the rights of its citi
zens against the operation of an Act of Congress, by pro
posing this question: Suppose Congress should require that
all the expenses of this great war, as we call it, should be
paid by the State of New York, — what should we do in that
case? Nothing but hostilities are a solution for that case, it
is suggested. Now, I would freely say to my learned friend,
Mr. Brady, that if the General Government, by its law,
should impose the whole taxation of the war upon the State
of New York, I should advise the State of New York, or any
citizen in it, not to pay the taxes. That is the end of the
matter. And I would like to know if there is any warlike
process by which the General Government of the United
States exacts its tribute of taxation, that could impose the
whole amount on New York? As the process of taxation
goes on, it is distributed through different channels, and
presents itself as an actual and effective process, from the
tax-gatherer to the tax-payer: "Give me so many dollars."
And the tax-payer says: "There is no law for it, and I will not
do it." Then the process of collection raises for considera
tion this inquiry — whether the tax is according to the law,
and according to the constitutional law of the United States
of America. And this tribunal, formed to decide such ques
tions — formed to settle principles in single cases, that shall
protect against hostilities these great communities — dis
poses of the question. If the law is constitutional, then the
tax is to be paid — if unconstitutional, then the tax is not
collectable; and the question is settled. But my learned

THE SAVANNAH PRIVATEERS 167

friends, in their suggestions of what is a possible state of
law that may arise in this country, forget the great distinc
tion between our situation under the Federal Government
and our situation as Colonies under the authority of the
King and Parliament of England. It is the distinction be
tween not being represented and being represented.

Why, my learned friends, in order to get the basis of a
possible suggestion of contrariety of duty and of interest be
tween the Government of the United States and the people
in these States, must overlook, and do overlook, the fact
that there is not a functionary in the Federal Government,
from the President down to the Houses of Congress, that
does not derive his authority from the people, not of one
State, not of any number of States, but of all the States.
And thus standing, they are guardians arid custodians, in
their own interests — in their own knowledge of the interests
of their own people — in their own knowledge that their place
in the protection, power, and authority of the Government
of the United States, proceeds by the favor and the approval
of the local community in which they reside. So far, there
fore, from anything in the arrangement or the working of
these political systems being such as to make the Representa
tives or Senators that compose Congress the masters or the
enemies of the local population of the States from which
they respectively come, they come there under the authority
of the local population which they represent, dependent
upon it for their place and continuance, and not on the
Federal Government.

Away, then, with the notion, so foreign to our actual, con
stituted Government, that this Government of the United
States of America is a Government that is extended over
these States, with an origin, a power, a support independent
of them, and that it contains in itself an arrangement, a
principle, a composition that can by possibility excite or
sustain these hostilities! Why, every act of Congress must

168 SPEECHES OF WILLIAM MAXWELL EVARTS

govern the whole Union. Every tax must, to be constitu
tional, be extended over the whole Union, and according to
a fixed ratio of distribution between the States, established
by the Constitution itself. Now, therefore, when any par
ticular interest, any particular occasion, any supposed
necessity, any political motive, suggests a departure, on the
part of the General Government, from a necessary adher
ence to this principle of the Constitution, you will perceive
that not only are the Representatives and Senators who
come from the State against which this exercise of power is
attempted, interested to oppose, in their places in Congress,
the violation of the Constitution, but the Representatives
and the Senators from every other State, in support of the
rights of the local communities in which they reside, have
the same interest and the same duty, and may be practically
relied upon to exercise the same right, and authority, and
opposition, in protection of their communities, against an
application of the same principle, or an obedience to the same
usurpation, on subsequent occasions, in reference to other
questions that may arise. Therefore, my learned friends,
when they are talking to you, theoretically or practically, about
the opposition that may arise between co-ordinate and inde
pendent sovereignties, and would make the glorious Constitu
tion of this Federal Government an instance of misshapen,
and disjointed, and impractical inconsistencies, forget that
the great basis of both of them rests in the people, and in the
same people — equally interested, equally powerful, to
restrain and to continue the movements of each, within the
separate, constitutional rights of each. Now, unquestion
ably, in vast communities, with great interests, diverse and
various, opinions may vary, and honest sentiments may
produce the enactment of laws of Congress, which equally
honest sentiments, on the part of local communities, ex
pressed through the action of State legislation, may regard
as inconsistent with the Government and the Constitution

THE SAVANNAH PRIVATEERS 169

of the United States, and with the rights of the States. But,
for these purposes, for these occasions, an ample and com
plete theoretical and practical protection of the rights of all
is found, in this absolute identity of the interests of the
people and of their authority in both the form and the struc
ture of their complex Government, and in the means pro
vided by the Constitution itself for testing every question
that touches the right, the interest, the liberty, the property,
the freedom of any citizen, in all and any of these commun
ities, before the Supreme Court of the United States. Let
us not be drawn into any of these shadowy propositions, that
the whole people may be oppressed, and not a single indi
vidual in it be deprived of any personal right. Whenever
the liberty of the citizen is abridged in respect to any per
sonal right, the counsel concede that the Courts are open to
him; and that is the theory, the wisdom, and the practical
success of the American Constitution.

Now, gentlemen of the Jury, but one word more on this
speculative right of secession. It is founded, if at all, upon
the theory, that the States, having been, anterior to the
formation of the Constitution, independent sovereignties,
are, themselves, the creators, and that the Constitution is
the creature proceeding from their power. I have said all
I have to say about either the fact, or the result of the fact,
if it be one, of the existence of these antecedent, complete
national sovereignties on the part of any of the original
States.

But, will my learned friends tell me how this theory of
theirs, in respect to the original thirteen States, has any
application to the States, now quite outnumbering the
original thirteen, which have, since the Constitution was
formed, entered into the Government of this our territory,
this our people? Out of thirty-four States, eleven have
derived their existence, their permission to exist, their terri
tory, their power to make a Constitution, from the General

170 SPEECHES OF WILLIAM MAXWELL EVARTS

Government itself, out of whose territory — either acquired
originally by the wealth or conquest of the Federal Govern
ment, or derived directly or indirectly through cession or
partition or separation of the original Colonies — they have
sprung into existence. Of these eleven allied and confed
erate States, but four came from the stock of the original
thirteen, and seven derived their whole power and authority
from the permission of the Constitution of the United States,
and have sprung into existence, with the breath of their
lives breathed into them through the Federal Government.
When the State of Louisiana talks of its right to secede by
reason of its sovereignty, by reason of its being one of the
creators of the Federal Government, and of the Federal
Constitution — one of the actors in the principles of the Amer
ican Revolution, and in the conquest of our liberties from
the English power — we may well lift our hands in surprise
at the arrogance of such a suggestion. Why, what was Louis
iana, in all her territory, at the time of the great transaction
of the Federal Revolution, and for a long time afterwards,
but a province of Spain, first, and afterwards of France?
How did her territory — the land upon which her population
and her property rest — come to be a part of our territory,
and to give support to a State government, and to State
interests? Why, by its acquisition, under the wise policy of
Mr. Jefferson, early in this century, upon the opportunity
offered, by the necessity or policy of the Emperor Napoleon,
for its purchase, by money, as you would buy a ship, or a
strip of land to build a fort on.

Coming thus to the United States, by its purchase, how
did Louisiana come to be set apart, carved out of the im
mense territory comprehended under the name of Louisiana,
but by lines of division and concession of power, proceeding
from the Government of the United States? And why did
we purchase it? We purchased it preliminarily, not so
much to seize the opportunity for excluding from a foothold

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on this Continent a great foreign Power, which, although its
territory here was waste and uninhabited, had the legal right
to fill it, and might in the course of time, fill it with a popu
lation hostile in interests to our own, — not so much for this
remote contingency, as to meet the actual pressing necessity,
on the part of the population that was beginning to fill up
the left or eastern bank of the Mississippi, from its source to
near its mouth, that they should have the mouth of the
Mississippi also within their territory, governed by the same
laws and under the same Government. And now, forsooth,
the money and the policy of the United States having ac
quired this territory, and conceded the political rights con
tained in the Constitution of Louisiana, we are to justify
the secession of the territory of Louisiana, carrying the
mouth of the Mississippi with her, on the theory that she
was one of the original sovereignties, and one of the creators
of the Constitution of the United States!

Well, gentlemen, how are our learned friends to escape
from this dilemma? Are they to say that our constituted
Government, complex, composed of State and of Federal
power, has two sets of State and Federal relations within it,
to wit, that which existed between the General Government
and the thirteen sovereign, original States, and that which
exists between the Federal Government and the other
twenty-one States of the Union? Is it to follow, from this
severance, that these original Colonies, declaring their inde
pendence — South Carolina, North Carolina, Virginia and
Georgia — are to draw back to themselves the portions of
their original territory that have since, under the authority
of the Constitution, been formed into separate communities?
Our Constitution was made by and between the States, and
the people of the States — not for themselves alone — not
limited to existing territory, and arranged State and Pro
vincial Governments — but made as a Government, and
made with principles in respect to Government that should

172 SPEECHES OF WILLIAM MAXWELL EVARTS

admit of its extension by purchase, by conquest, by all the
means that could bring accretion to a people in territory and
in strength, and that should be, in its principles, a form of
Government applicable to and sufficient for the old and the
new States, and the old and the new population. I need
not refer to the later instances, where, by purchase, we
acquired Florida, also one of the seceded States, and where,
by our armies, we gained the western coast of the Pacific.
Are these the relations into which the power, and blood, and
treasure of this Government bring it, in respect to the new
communities and the new States which, under its protection,
and from its conceded power, have derived their very exist
ence?

Why, gentlemen, our Government is said, by those who
complain of it, or who expose what they regard as its difficul
ties, to have one element of weakness in it, to wit, the possi
bility of discord between the State and Federal authorities.
But, if you adopt the principle, that there is one set of rules,
one set of rights, between the Federal Government and the
original States that formed the Union, and another set of
rules between the Federal Government and the new States,
I would like to know what becomes of the provision of the
Constitution, that the new States may be admitted on the
same footing with the old? What becomes of the harmony
and accord among the local Governments of this great
nation, which we call State Governments, if there be this
superiority, in every political sense, on the part of the old
States, and this absolute inferiority and subjection on the
part of the new?

And now, gentlemen, having done with this doctrine of
secession, as utterly inconsistent with the theory of our
Government, and utterly unimportant, as a practical right,
for any supposable or even imaginable case that may be
suggested, I come to consider the question of the right of
revolution. I have shown you upon what principles, and

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upon what substantial question, between being subjects as
slaves, or being participants in the British Government, our
Colonies attempted and achieved their independence. As
I have said to you, a very brief experience showed that they
needed, to meet the exigencies of their situation, the estab
lishment of a Government that should be in accordance with
the wishes and spirit of the people, in regard of freedom, and
yet should be of such strength, and such unity, as would
admit of prosperity being enjoyed under it, and of its name
and power being established among the nations of the earth.
Now, without going into the theories of Government, and
of the rights of the people, and of the rights of the rulers, to
any great extent, we all know that there has been every
variety of experiment tried, in the course of human affairs,
between the great extreme alluded to by my learned friend
(Mr. Brady) of the slavery of Egyptians to their king — the
extreme instance of an entire population scarcely lifted above
the brutes in their absolute subjection to the tyranny of a
ruler, so that the life, and the soul, and the sweat, and the
blood of a whole generation of men are consumed in the
task of building a mausoleum as the grave of a king — and the
later efforts of our race, culminating in the happy success
of our own form of Government, to establish, on foundations
where liberty and law find equal support, the principle of
Government, that Government is by, and for, and from all
the people — that the rulers, instead of being their masters
and their owners, are their agents and their servants — and
that the greatest good of the greatest number is the plain,
practical and equal rule which, by gift from our Creator,
we enjoy.

Now this, you will observe, is a question which readily
receives our acceptance. But the great problem in reference
to the freedom of a people, in the establishment of their
Government, presents itself in this wise: The people, in
order to maintain their freedom, must be masters of their

174 SPEECHES OF WILLIAM MAXWELL EVARTS

Government, so that the Government may not be too strong,
in its arrangement of power, to overmaster the people; but
yet, the Government must be strong enough to maintain and
protect the independence of the nation against the aggres
sions, the usurpations, and the oppressions of foreign na
tions. Here you have a difficulty raised at once. You
expose either the freedom of the nation, by making the Gov
ernment too strong for the preservation of individual inde
pendence, or you expose its existence, by making it too weak
to maintain itself against the passions, interests and power
of neighboring nations. If you have a large nation — count
ing its population by many millions, and the circumference
of its territory by thousands of miles — how can you arrange
the strength of Government, so that it shall not, in the
interests of human passions, grow too strong for the liber
ties of the people? And if, abandoning in despair that
effort and that hope, you circumscribe the limits of your
territory, and reduce your population within a narrow range,
how can you have a Government and a nation strong enough
to maintain itself in the contests of the great family of
nations, impelled and urged by interests and passions?

Here is the first peril, which has never been successfully
met and disposed of in any of the forms of Government that
have been known in the history of mankind, until, at least,
our solution of it was attempted, and unless it has suc
ceeded and can maintain itself. But, again, this business
of self-government by a people has but one practical and
sensible spirit and object. The object of free Government is,
that the people, as individuals, may, with security, pursue
their own happiness. We do not tolerate the theory that all
the people constituting the nation are absorbed into the
national growth and life. The reason why we want a free
Government is, that we may be happy under it, and pursue
our own activities according to our nature and our faculties.
But, you will see, at once, that it is of the essence of being

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able to pursue our own interests under the Government
under which we live, that we can do so according to our
own notions of what they are, or the notions of those who
are intelligently informed of, participate in, and sympathize
with, those interests. Therefore, it seems necessary that
all of the every-day rights of property, of social arrange
ments, of marriage, of contracts — everything that makes
up the life of a social community — shall be under the control,
not of a remote or distant authority, but of one that is
limited to, and derives its ideas and principles from, a local
community.

Now, how can this be in a large nation — in a nation of
thirty millions, distributed over a zone of the earth? How
are we to get along in New York, and how are others to get
along in South Carolina, and others in New England, in
the every-day arrangements that proceed from Govern
ment, and affect the prosperity, the freedom, the indepen
dence, the satisfaction of the community with the condition
in which it lives? How can we get along, if all these minute
and every-day arrangements are to proceed from a Govern
ment which has to deal with the diverse opinions, the di
verse sentiments, the diverse interests, of so extensive a
nation? But if, fleeing from this peril, you say that you
may reduce your nation, you fall into another difficulty.
The advanced civilization of the present day requires, for
our commercial activity, for our enjoyment of the comforts
and luxuries of life, that the whole globe shall be ransacked,
and that the power of the nation which we recognize as our
superior shall be able to protect our citizens in their enter
prises, in their activities, in their objects, all over the world.
How can a little nation, made up of Massachusetts, or made
up of South Carolina, have a flag and a power which can
protect its commerce in the East Indies and in the Southern
Ocean? Again — we find that nations, unless they are
separated by wide barriers, necessarily, in the course of

176 SPEECHES OF WILLIAM MAXWELL EVARTS

human affairs, come into collision; and, as I have shown to
you, the only arbitrament for their settlement is war. But
war is a scourge — an unmitigated scourge — so long as it
lasts, and in itself considered. But for objects which make
it meritorious and useful, it is a scourge never to be tolerated.
It puts in abeyance all individual rights, interests, and
schemes, until the great controversy is settled.

If, then, we are a small nation, surrounded on all sides by
other nations, with no natural barriers, with competing
interests, with occasions of strife and collision on all sides,
how can we escape war, as a necessary result of that miser
able situation? But war strengthens the power of Govern
ment, weakens the power of the individual, and establishes
maxims and creates forces, that go to increase the weight
and the power of Government, and to weaken the rights of
the people. Then, we see that, to escape war, we must
either establish a great nation, which occupies an extent of
territory, and has a fund of power sufficient to protect itself
against border strifes, and against the ambition, the envy, the
hatred of neighbors; or else one which, being small, is exposed
to war from abroad to subjugate it, or to the greater peril to
its own liberties, of war made by its own Government, thus
establishing principles and introducing interests which are
inconsistent with liberty.

I have thus ventured, gentlemen, to lay before you some
of these general principles, because, in the course of the
arguments of my learned friends, as well as in many of the
discussions before the public mind, it seems to be considered
that the ties, the affections and the interests, which oblige
us to the maintenance of this Government of ours, find their
support and proper strength and nourishment only in the sen
timents of patriotism and duty, because it happens to be our
own Government; and that, when the considerations of force
or of feeling which bring a people to submit to a surrender of
their Government, or to a successful conquest of a part of

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their territory, or to a wresting of a part of their people from
the control of the Government, shall be brought to bear upon
us, we shall be, in our loss and our surrender, only suffering
what other nations have been called upon to lose and to sur
render and that it will be but a change in the actual condition
of the country and its territory. But you will perceive that,
by the superior fortune which attended our introduction into
the family of nations, and by the great wisdom, forecast,
and courage of our ancestors, we avoided, at the outset, all
the difficulties between a large territory and a numerous
population on the one hand, and a small territory and a re
duced population on the other hand, and all those opposing
dangers of the Government being either too weak to protect
the nation, or too strong, and thus oppressive of the people,
by a distribution of powers and authorities, novel in the af
fairs of men, dependent on experiment, and to receive its
final fate as the result of that experiment. We went on this
view — that these feeble Colonies had not, each in itself, the
life and strength of a nation; and, yet, these feeble Colonies,
and their poor and sparse population, were nourished on a
love of liberty and self-government. These sentiments
had carried them through a successful war against one of the
great powers of the earth. They were not to surrender that
for which they had been fighting to any scheme, to any
theory of a great, consolidated nation, the Government of
which should subdue the people and re-introduce the old
fashion in human affairs — that the people were made for
the rulers, and not the rulers by and for the people. They
undertook to meet, they did meet, this difficult dilemma in
the constitution of Government, by separating the great
fund of power, and reposing it in two distinct organizations.
They reserved to the local communities the control of their
domestic affairs, and attributed the maintenance and pres
ervation of them to the State Governments. They under
took to collect and deposit, under the form of a written Con-

14

178 SPEECHES OF WILLIAM MAXWELL EVARTS

stitution, with the general Government, all those larger and
common interests which enter into the conception and prac
tical establishment of a distinct nation among the nations of
the earth, and determined that they would have a central
power which should be adequate, by drawing its resources
from the patriotism, from the duty, from the wealth, from
the numbers, of a great nation, to represent them in peace and
in war, — a nation that could protect the interests, encourage
the activities, and maintain the development of its people,
in spite of the opposing interests or the envious or hostile
attacks of any nation. They determined that this great
Government, thus furnished with this range of authority
and this extent of power, should not have anything to do
with the every-day institutions, operations and social ar
rangements of the community into which the vast popula
tion and territory of the nation were distributed. They
determined that the people of Massachusetts, the people of
New York, and the people of South Carolina, each of them,
should have their own laws about agriculture, about inter
nal trade, about marriage, about apprenticeship, about
slavery, about religion, about schools, about all the every
day pulsations of individual life and happiness, controlled
by communities that moved with the same pulsations,
obeyed the same instincts, and were animated by the same
purposes. And, as this latter class of authority contains in
itself the principal means of oppression by a Government,
and is the principal point where oppression is to be feared by
a people, they had thus robbed the new system of all the
dangers which attend the too extensive powers of a Gov
ernment. They divided the fund of power, to prevent a
great concentration and a great consolidation of the army
of magistrates and officers of the law and of the Government
which would have been combined by a united and consoli
dated authority, having jurisdiction of all the purposes of
Government, of all the interests of citizens, and of the entire

THE SAVANNAH PRIVATEERS 179

population and entire territory in these respects. They
thus made a Government, complex in its arrangements,
which met those opposing difficulties, inherent in human
affairs, that make the distinction between free Governments
and oppressive Governments. They preserved the people
in their enjoyment and control of all the local matters enter
ing into their every-day life, and yet gave them an establish
ment, springing from the same interests and controlled by
the same people, which has sustained and protected us in our
relations to the family of nations on the high seas and in the
remote corners of the world.

Now, this is the scheme, and this is the purpose, with
which this Government was formed; and you will observe
that there is contained in it this separation, and this dis
tribution. And our learned friends, who have argued before
you respecting this theory, and this arrangement and prac
tice of the power of a Government, as inconsistent with the
interests and the freedom of the people, have substantially
said to you that it was a whimsical contrivance, that it was
an impossible arrangement of inconsistent principles, and
that we must go back to a simple Government composed of
one of the States, or of a similar arrangement of territory
and people, which would make each of us a weak and con
temptible power in the family of nations — or we must go
back to the old consolidation of power, such as is represented
by the frame of France or England in its Government, or,
more distinctly, more absolutely, and more likely to be the
case, for so vast a territory and so extensive a population as
ours, to the simple notion of Russian Autocracy.

That, then, being the object, and that the character, of
our institutions, and this right of secession not being pro
vided for, or imagined, or tolerated in the scheme, let us
look at the right of revolution, as justifying an attempt to
overthrow the Government; and let us look at the occasions
of revolution, which are pretended here, as giving a support,

180 SPEECHES OF WILLIAM MAXWELL EVARTS

before the world, in the forum of conscience, and in the
judgment of mankind, for the exercise of that right.

And first, let me ask you whether, in all the citations from
the great men of the Revolution, and in the later stages of
our history, any opinion has been cited which has condemned
this scheme as unsuitable and insufficient for the freedom
and happiness of the people, if it can be successful? I
think not. The whole history of the country is full of rec
ords of the approval, of the support, of the admiration, of
the reverent language which our people at large, and the
great leaders of public opinion — the great statesmen of the
country — have spoken of this system of Government. Let
me ask your attention to but two encomiums upon it, as
represented by that central idea of a great nation, and yet a
divided and local administration of popular interests — to
wit, one in the first stage of its adoption, before its ratifica
tion by the people was complete; and the other, a speech
made at the very eve of, if not in the very smoke of, this
hostile dissolution of it.

Mr. Pinckney, of South Carolina, who had been one of the
delegates from that State in the National Convention, and
had co-operated with the Northern statesmen, and with the
great men of Virginia, in forming the Government as it was,
in urging on the Convention of South Carolina the adoption
of the Constitution, and its ratification, said :

"To the Union we will look up as the temple of our free
dom, — a temple founded in the affections and supported by
the virtue of the people. Here we will pour out our grati
tude to the Author of all good, for suffering us to partici
pate in the rights of a people who govern themselves. Is
there, at this moment, a nation on the earth which enjoys
this right, where the true principles of representation are
understood and practised, and where all authority flows
from, and returns at stated periods to, the people? I an
swer, there is not. Can a Government be said to be free

THE SAVANNAH PRIVATEERS 181-

where those do not exist? It cannot. On what depends the
enjoyment of those rare, inestimable rights ? On the firmness
and on the power of the Union to protect and defend them.'-'

Had we anything from that great patriot and statesman of
this right of secession, or independence of a State, as an im
portant or a useful element in securing these rare, these un
heard of, these inestimable privileges of Government, which
the Author of all good had suffered the people of South
Carolina to participate in? No — they depended "on the
firmness and on the power of the Union to protect and
defend them." Mr. Pinckney goes on to say: "To the
philosophic mind, how new and awful an instance do the
United States at present exhibit to the people of the world!
They exhibit, sir, the first instance of a people who, being
thus dissatisfied with their Government, unattacked by a
foreign force and undisturbed by domestic uneasiness, coolly
and deliberately resort to the virtue and good sense of the
country for a correction of their public errors."

That is, for the abandonment of the weakness and the
danger of the imperfect Confederation, and the adoption of
the constitutional and formal establishment of Federal
power. Mr. Pinckney goes on to say:

"It must be obvious that, without a superintending Gov
ernment, it is impossible the liberties of this country can
long be secure. Single and unconnected, how weak and
contemptible are the largest of our States! how unable to
protect themselves from external or domestic insult! how
incompetent, to national purposes, would even the present
Union be! how liable to intestine war and confusion! how
little able to secure the blessings of peace! Let us, there
fore, be careful in strengthening the Union. Let us remember
we are bounded by vigilant and attentive neighbors" —
(and now Europe is within ten days, and they are near
neighbors) — "who view with a jealous eye our rights to
empire."

182 SPEECHES OF WILLIAM MAXWELL EVABTS

Pursuing my design of limiting my citations of the opin
ions of public men to those who have received honor from,
and conferred honor on, that portion of our country and
those of our countrymen now engaged in this strife with the
General Government, let me ask your attention to a speech
delivered by Mr. Stephens, now the Vice-President of the
so-called Confederate States, on the very eve of, and pro
testing against, this effort to dissolve the Union. I read
from page 220 and subsequent pages of the documents that
have been the subject of reference heretofore :

"The first question that presents itself" — (says Mr. Ste
phens to the assembled Legislature of Georgia, of which he
was not a member, but which, as an eminent and leading pub
lic man, he had been invited to address) — "is, shall the people
of the South secede from the Union in consequence of the
election of Mr. Lincoln to the Presidency of the United
States? My countrymen, I tell you frankly, candidly, and
earnestly, that I do not think that they ought. In my judgment,
the election of no man, constitutionally elected to that high
office, is sufficient cause for any State to separate from the
Union. It ought to stand by and aid still in maintaining
the Constitution of the country. To make a point of re
sistance to the Government — to withdraw from it because
a man has been constitutionally elected — puts us in the
wrong. We are pledged to maintain the Constitution.
Many of us have sworn to support it.

*****

"But it is said Mr. Lincoln's policy and principles are
against the Constitution, and that if he carries them out it
will be destructive of our rights. Let us not anticipate
a threatened evil. If he violates the Constitution, then
will come our time to act. Do not let us break it because,
forsooth, he may. If he does, that is the time for us to
strike. . . . My countrymen, I am not of those who
believe this Union has been a curse up to this time. True

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men — men of integrity — entertain different views from me
on this subject. I do not question their right to do so; I
would not impugn their motives in so doing. Nor will I
undertake to say that this Government of our fathers is
perfect. There is nothing perfect in this world, of a human
origin, — nothing connected with human nature, from man
himself to any of his works. You may select the wisest and
best men for your Judges, and yet how many defects are
there in the administration of justice? You may select the
wisest and best men for your legislators, and yet how many
defects are apparent in your laws? And it is so in our Gov
ernment.

"But that this Government of our fathers, with all its
defects, comes nearer the objects of all good Governments
than any on the face of the earth, is my settled conviction.
Contrast it now with any on the face of the earth." ("Eng
land," said Mr. Toombs.) "England, my friend says.
Well, that is the next best, I grant; but I think we have
improved upon England. Statesmen tried their apprentice
hand on the Government of England, and then ours was
made. Ours sprang from that, avoiding many of its de
fects, taking most of the good, and leaving out many of its
errors, and, from the whole, constructing and building up
this model Republic — the best which the history of the
world gives any account of.

"Compare, my friends, this Government with that of
Spain, Mexico, the South American Republics, Germany,
Ireland — are there any sons of that down-trodden nation
here to-night? — Prussia, or, if you travel further East, to
Turkey or China. Where will you go, following the sun in
his circuit round our globe, to find a Government that better
protects the liberties of its people, and secures to them the
blessings we enjoy? I think that one of the evils that
beset us is a surfeit of liberty, an exuberance of the priceless
blessings for which we are ungrateful.

184 SPEECHES OF WILLIAM MAXWELL EVARTS

"When I look around and see our prosperity in every
thing — agriculture, commerce, art, science, and every de
partment of education, physical and mental, as well as moral
advancement, and our colleges — I think, in the face of such
an exhibition, if we can, without the loss of power, or any
essential right or interest, remain in the Union, it is our
duty to ourselves and to posterity to — let us not too readily
yield to this temptation — do so. Our first parents, the great
progenitors of the human race, were not without a like
temptation when in the Garden of Eden. They were
led to believe that their condition would be bettered — that
their eyes would be opened — and that they would become
as gods. They in an evil hour yielded. Instead of becoming
gods, they only saw their own nakedness.

"I look upon this country, with our institutions, as the Eden
of the world, and the paradise of the Universe. It may be
that out of it we may become greater and more prosperous,
but I am candid and sincere in telling you that I fear if we
rashly evince passion, and, without sufficient cause, shall take
that step, that instead of becoming greater or more peaceful,
prosperous and happy — instead of becoming gods — we will
become demons, and, at no distant day, commence cutting
one another's throats."

Still speaking of our Government, he says :

"Thus far, it is a noble example, worthy of imitation.
The gentleman (Mr. Cobb) the other night said it had proven
a failure. A failure in what? In growth? Look at our
expanse in national power. Look at our population and
increase in all that makes a people great. A failure? Why,
we are the admiration of the civilized world, and present
the brightest hopes of mankind.

"Some of our public men have failed in their aspirations;
that is true, and from that comes a great part of our troubles.

"No, there is no failure of this Government yet. We
have made great advancement under the Constitution, and

THE SAVANNAH PRIVATEERS 185

I cannot but hope that we shall advance higher still. Let
us be true to our cause."

Now, wherein is it that this Government deserves these
encomiums, which come from the intelligent and profound
wisdom of statesmen, and gush spontaneously from the un
learned hearts of the masses of the people? Why, it is
precisely in this point, of its not being a consolidated Gov
ernment, and of its not being a narrow and feeble, and weak
community and Government. Indeed, I may be permitted
to say that I once heard, from the lips of Mr. Calhoun him
self, this recognition, both of the good fortune of this coun
try in possessing such a Government, and of the principal
sources to which the gratitude of a nation should attribute
that good fortune. I heard him once say, that it was to the
wisdom, in the great Convention, of the delegates from the
State of Connecticut, and of Judge Patterson, a delegate
from the State of New Jersey, that we owed the fact that
this Government was what it was, the best Government in
the world, a confederated Government, and not what it
would have been — and, apparently would have been but
for those statesmen — the worst Government in the world —
a consolidated Government. These statesmen, he said,
were wiser for the South than the South was for herself.

I need not say to you, gentlemen, that, if all this en
comium on the great fabric of our Government is brought
to naught, and is made nonsense by the proposition that,
although thus praised and thus admired, it contains within
itself the principle, the right, the duty, of being torn to
pieces, whenever a fragment of its people shall be discon
tented and desire its destruction, then all this encomium
comes but as sounding brass and a tinkling cymbal; and the
glory of our ancestors, Washington, and Madison, and Jef
ferson, and Adams — the glory of their successors, Webster,
and Clay, and Wright, and even Calhoun — for he was no
votary of this nonsense of secession — passes away, and their

186 SPEECHES OF WILLIAM MAXWELL EVARTS

fame grows visibly paler, and the watchful eye of the English
monarchy looks on for the bitter fruits to be reaped by us for
our own destruction, and as an example to the world — the
bitter fruits of the principle of revolution and of the right of
self-government which we dared to assert against her perfect
control. Pointing to our exhibition of an actual concourse
of armies, she will say — "It is in the dragon's teeth, in the
right of rebellion against the monarchy of England, that
these armed hosts have found their seed and sprung upon
your soil."

Now, gentlemen, such is our Government, such is its ben
eficence, such is its adaptation, and such are its successes.
Look at its successes. Not three-quarters of a century have
passed away since the adoption of its Constitution, and now
it rules over a territory that extends from the Atlantic to
the Pacific. It fills the wide belt of the earth's surface that
is bounded by the provinces of England on the North, and
by the crumbling, and weak, and contemptible Govern
ments or no Governments that shake the frame of Mexico
on the South. Have Nature and Providence left us without
resources to hold together social unity, notwithstanding the
vast expanse of the earth's surface which our population has
traversed and possessed? No. Keeping pace with our
wants in that regard, the rapid locomotion of steam on the
ocean, and on our rivers and lakes, and on the iron roads
that bind the country together, and the instantaneous
electric communication of thought, which fills with the same
facts, and with the same news, and with the same sentiments,
at the same moment, a great, enlightened, and intelligent
people, have overcome all the resistance and all the dangers
which might be attributed to natural obstructions. Even
now, while this trial proceeds, San Francisco and New York,
Boston and Portland, and the still farther East, communi
cate together as by a flash of lightning — indeed, it may be
said, making an electric flash farther across the earth's sur-

THE SAVANNAH PRIVATEERS 187

face, and more intelligible too, to man, than ever in the natu
ral phenomena of the heavens the lightning displayed itself.
No — the same Author of all good, to whom Pinckney avowed
his gratitude, has been our friend and protector, and has re
moved, step by step, every impediment to our expansion
which the laws of nature and of space had been supposed to
interpose. No, no — neither in the patriotism nor in the
wisdom of our fathers was there any defect; nor shall we
find, in the disposition and purposes of Divine Providence,
as we can see them, any excuse or any aid for the destruc
tion of this magnificent system of empire. No — it is in
ourselves, in our own time, and in our own generation, in
our own failing powers and failing duties, that the crash
and ruin of this magnificent fabric, and the blasting of the
future hopes of mankind, is to find its cause and its exe
cution.

I have shown you, gentlemen, how, when the usurpations
of the British Parliament, striking at the vital point of the
independence of this country, had raised for consideration and
determination, by a brave and free people, the question of
their destiny, our fathers dealt with it. My learned friends,
in various forms, have spoken poetically, logically and
practically about all that course of proceedings that has
been going on in this country, as finding a complete paral
lelism, support, and justification in the course of the Ameri
can Revolution; and a passage in the Declaration of Inde
pendence has been read to you as calculated to show that,
on a mere theoretical opinion of the right of a people to
govern themselves, any portion of that people are at liberty,
as well against a good Government as against a bad one, to
establish a bad Government as well as overthrow a bad
Government — have the right to do as they please, and, I
suppose, to force all the rest of the world and all the rest of
the nation to just such a fate as their doing as they please
may bring with it.

188 SPEECHES OF WILLIAM MAXWELL EVARTS

Let us see how this Declaration of Independence, called
by the great forensic orator, Mr. Choate, "a passionate and
eloquent manifesto," and stigmatized as containing "glit
tering generalities" — let us see, I say, how sober, how dis
creet, how cautious it is in the presentation of this right,
even of revolution. I read what, both in the newspapers
and in political discussions, as well as before you, by the
learned counsel, have been presented as the doctrines of the
Declaration of Independence, and then I add to it the quali
fying propositions, and the practical, stern requisitions,
which that instrument appends to these general views:

"To secure these rights, Governments are instituted
among men, deriving their just powers from the consent of
the governed; that whenever any form of Government be
comes destructive of these ends, it is the right of the people
to alter or abolish it, and to institute new Government,
laying its foundation on such principles, and organizing its
powers in such form, as to them shall seem most likely to
effect their safety and happiness. Prudence, indeed, will
dictate, that Governments long established should not be
changed for light and transient causes. And, accordingly, all
experience hath shown, that mankind are more disposed to
suffer, while evils are sufferable, than to right themselves by
abolishing the forms to which they are accustomed. But when
a long train of abuses and usurpations, pursuing invariably
the same object, evinces a design to reduce them under ab
solute despotism, it is their right, it is their duty, to throw
off such Government, and to provide new guards for their
future security. Such has been the patient sufferance of
these Colonies; and such is now the necessity which constrains
them to alter their former systems of Government. The
history of the present King of Great Britain is a history of
repeated injuries and usurpations, all having in direct object
the establishment of an absolute tyranny over these States.
To prove this, let facts be submitted to a candid world."

THE SAVANNAH PRIVATEERS 189

And it then proceeds to enumerate the facts, in the elo
quent language of the Declaration, made familiar to us all by
its repeated and reverent recitals on the day which cele
brates its adoption. There is not anything of moonshine
about any one of them. There is not anything, perhaps, of,
or anticipation of, fear or suspicion. There is not anything
of this or that newspaper malediction, of this or that rhe
torical disquisition, of this or that theory, or of this or that
opprobrium, but a recital of direct governmental acts of
Great Britain, all tending to the purpose of establishing
complete despotism over this country. And, then, even
that not being deemed sufficient, on the part of our great
ancestors, to justify this appeal to the enlightened opinion
of the world, and to the God who directs the fate of armies,
they say:

"In every stage of these oppressions, we have petitioned
for redress, in the most humble terms; our repeated petitions
have been answered only by repeated injury. A Prince
whose character is thus marked by every act which may
define a tyrant, is unfit to be the ruler of a free people.

"Nor have we been wanting in attentions to our British
brethren. We have warned them, from time to time, of
attempts by their Legislature to extend an unwarrantable
jurisdiction over us. We have reminded them of the cir
cumstances of our emigration and settlement here. We
have appealed to their native justice and magnanimity,
and we have conjured them, by the ties of our common
kindred, to disavow those usurpations, which would inev
itably interrupt our connection and correspondence.
They, too, have been deaf to the voice of justice and of
consanguinity. ' '

Now, gentlemen, this doctrine of revolution, which our
learned friends rely upon, appeals to our own sense of right
and duty. It rests upon facts, and upon the purpose, as
indicated by these facts, to deprive our ancestors of the

190 SPEECHES OF WILLIAM MAXWELL EVARTS

rights of Englishmen, and to subject them to the power of a
Government in which they were not represented. Now,
whence come the occasions and the grievances urged before
you, and of what kind are they? My learned friend, Mr.
Brady, has given you a distinct enumeration, under nine
heads, of what the occasions are, and what the grievances
are. There is not one of them that, in form or substance,
proceeded from the Federal Government. There is not a
statute, there is not a proclamation, there is not an action,
judicial, executive, or legislative, on the part of the Federal
Government, that finds a place, either in consummation or
in purpose, in this indictment drawn by my learned friend
Mr. Brady against the Government, on behalf of his clients.
The letter of South Carolina, on completing the revocation
of her adoption of the Constitution, addressed to the States,
dwells upon the interest of slavery (as does my friend Mr.
Brady, in all his propositions), and discloses but two ideas —
one, that when any body or set of people cease to be a
majority in a Government, they have a right to leave it;
and the other, that State action, on the part of some of the
Northern States, had been inconsistent with, threatening to,
or opprobrious of the institution of slavery in the Southern
States.

Let me ask your attention to this proposition of the
Southern States, and this catalogue of the learned counsel.
As it is only the interest of slavery, social and political (for it
is an interest, lawfully existing), that leads to the destruc
tion of our Government and of their Government, let us see
what there is in the actual circumstances of this interest, as
being able, under the forms of our Constitution, to look out
for itself, as well, at least, as any other interest in the coun
try, that can justify them in finding an example or a prece
dent in the appeal of our fathers to arms to assert their
rights by the strong hand, because in the Government of
England they had no representation. Did our fathers say

THE SAVANNAH PRIVATEERS 191

that, because they had not a majority in the English Par
liament, they had a right to rebel? No! They said they
had not a share or vote in the Parliament. That was their
proposition.

I now invite you to consider this fundamental view of the
right and power of Government, and the right and freedom
of the people, — to wit, that every citizen is entitled to be
counted and considered as good as every other citizen, —
as a natural and abstract right — as the basis of our Govern
ment, however other arrangements may have adjusted or
regulated that simple and abstract right. Then, let us see
whether the arrangement of the Federal Government, in
departing from that natural right of one man to be as good
as another, and to be counted equal in the representation of
his Government, has operated to the prejudice of the in
terest of slavery. We have not heard anything in this coun
try of any other interest for many a long year, — much to my
disgust and discontent. There are other interests, — manu
facturing interests, agricultural interests, commercial inter
ests, all sorts of interests, some of them discordant, if you
please. Let us see whether this interest of slavery has a
fair chance to be heard, and enjoys its fair share of political
power under our Government, or whether, from a denial to
it of its fair share, it has some pretext for appealing to force.
Why, gentlemen, take the fifteen Slave States, which, under
the census of 1850, had six millions of white people — that is,
of citizens — and, under the census of 1860, about eight mil
lions, and compare them with the white people of the State
of New York, which, under the census of 1850, had three
millions, and, under the census of 1860, something like four
millions.

Now, here we are, — they as good as we, and we as good as
they, — we having our interests, and opinions, and feelings —
they their opinions, interests, and feelings, — and let us see
how the arrangement of representation, in every part of

192 SPEECHES OF WILLIAM MAXWElL EVARTS

our Government, is distributed between these interests.
Why, with a population just double that of the State of
New York, the interest of slavery has thirty Senators to
vote and to speak for it, and the people of New York have
two Senators to vote and to speak for them. In the House
of Representatives these same Slave States have ninety
Representatives to speak and to vote for them; and the
people of the State of New York have thirty-three to vote
and to speak for them. And, in the Electoral College, which
raises to the chief magistracy the citizen who receives the
constitutional vote, these same States have one hundred
and twenty electoral votes, and the State of New York has
thirty-five. Why, the three coterminous States — New York,
Pennsylvania, and Ohio — have, under either census, as
great or a greater population. than the fifteen Slave States,
and they have but six Senators, against the Slave States'
thirty.

Do I mention this in complaint? Not in the least. I
only mention it to show you that the vote and the voice of
this interest has not been defrauded in the artificial distribu
tion of Federal power. And, if I may be allowed to refer
to the other august department of our Federal Govern
ment, the Supreme Court of the United States, in which the
Presiding Justice has his seat as one of the members of
that Court, you will see how the vast population, the vast
interests of business, commerce, and what not, that reside
in the Free States, as compared with the lesser population,
the lesser business, and the lesser demand for the authority
or intervention of the judiciary in the Slave States, have
been represented for years, by the distribution of the nine
Judges of that Court, so that the eighteen millions of white
people who compose the population of the Free States have
been represented (not in any political sense) by four of
these Justices; and the rest of the country, the fifteen Slave
States, with their population of six or eight millions, have

THE SAVANNAH PRIVATEEHS 193

been represented by five. Now, of this I do not complain.
It is law — it is government; and no injustice has been done to
the Constitution, nor has it been violated in this arrange
ment. But, has there been any fraud upon the interest
of slavery, in the favor the Federal Government has shown
in the marking out of the Judicial Districts, and in the
apportionment of the Judges to the different regions of the
country, and to the population of those regions? If you look
at it as regards the business in the different Circuits, the
learned Justice who now presides here, and who holds his
place for the Second Circuit including our State, disposes
annually, here and in other Courts, of more business than,
I may perhaps say, all the Circuits that are made up from
the Slave States. And, if you look at it as regards the popu
lation, there was one Circuit — that which was represented by
the learned Mr. Justice McLean, lately deceased — which
contained within itself five millions of white, free population;
while one other Circuit, represented by another learned
Justice, lately deceased — a Circuit composed of Mississippi
and Arkansas — contained only 450,000, at the time of the
completion of the census of 1850. Who complains of this?
Do we? Never. But, when it is said to you that there is
a parallelism between the right of revolt, because of lack
of representation, in the case of our people and the Par
liament of England, and the case of these people and the
United States, or any of the forms of its administration of
power, remember these things. I produce this in the simple
duty of forensic reply to the causes put forward as a justi
fication of this revolt — that is to say that, the Government
oppressing them, or the Government closed against them,
and they excluded from it, they had a right to resort to the
revolution of force.

You, therefore, must adopt the proposition of South
Carolina, that, when any interest ceases to be the majority
in a Government, it has a right to secede. How long would

15

194 SPEECHES OF WILLIAM MAXWELL EVARTS

such a Government last? Why, there was never any in
terest in this country which imagined that it had a ma
jority. Did the tariff interest have a majority? Did the
grain interest have a majority? Did the commercial in
terest have a majority? Did the States of the West have a
majority? Does California gold represent itself by a ma
jority? Why, the very safety of such a Government as this,
is, that no interest shall or can be a majority; but that the
concurring, consenting wisdom drawn out of these con
flicting interests shall work out a system of law which will
conduce to the general interest.

Now, that I have not done my learned friend, Mr. Brady,
any injustice in presenting the catalogue of grievances (not
in his own view, but in the view of those who have led in this
rebellion), let us see what they are:

"The claim to abolish slavery." Is there any statute of
the United States anywhere that has abolished it? Has
any Act been introduced into Congress to abolish it? Has
the measure had a vote?

"Stoppage of the inter-state slave-trade." I may say
the same thing of that.

"No more slavery in the Territories." Where is the Act
of Congress, where is the movement of the Federal Govern
ment, where the decision of the Supreme Court, that holds
that slavery cannot go into a territory? Why, so far as
acts go, everything has gone in the way of recognizing the
confirmation of the right — the repeal of the Missouri Com
promise by Congress, and the decision of the Federal Court,
if it go to that extent, as is claimed, in the case of Dred Scott.

"Nullification of the fugitive-slave law." Who passed
the fugitive-slave law? Congress. Who have enforced it?
The Federal power, by arms, in the city of Boston. Who
have enjoined its observation, to Grand Juries and to Juries?
The Justices of the Supreme Court of the United States, in
their Circuits. Who have held it to be constitutional?

THE SAVANNAH PRIVATEERS 195

The Supreme Court of the United States, and the subordi
nate Courts of the United States, and every State Court that
has passed upon the subject, except it be the State Court of
the State of Wisconsin, if I am correctly advised.

"Underground railroads, supported by the Government,
and paid by them." Are they? Not in the least.

"The case of the Creole" — where, they say, no protection
was given to slaves on the high seas. Is there any judicial
interpretation to that effect? Nothing but the refusal of
Congress to pass a bill, under some circumstances of this or
that nature, presented for its consideration; and, because it
has refused, it is alleged there is the assertion of some principle
that should charge upon this Government the inflamed and
particular views generally maintained on slavery by Garrison,
Phillips, and Theodore Parker. The other enormities they
clothe in general phrase, and do not particularly specify, ex
cept one particular subject — what is known as the "John
Brown raid" — in regard to which, as it has been introduced,
I shall have occasion to say something in another connection,
and, therefore, I will not comment upon it now.

I find., however, I have omitted the last — Mr. Lincoln's
doctrine, that it is impossible, theoretically, for slave and
free States to co-exist. For many years, that was considered
to be Mr. Seward's doctrine, but, when Mr. Lincoln became
a candidate for the Presidency, it was charged on him,
being supported by some brief extracts from former speeches
made by him in canvassing his State. I cannot discuss all
these matters. They are beneath the gravity of State
necessity, and of the question of the right of revolution.
They are the opinions, the sentiments, the rhetoric, the
folly, the local rage and madness, if you please, in some in
stances, of particular inflammations, either of sentiment
or of action, rising in the bosom of so vast, so impetuous a
community as ours. But, suppose the tariff States, sup
pose the grain States, were to attempt to topple down

196 SPEECHES OF WILLIAM MAXWELL EVARTS

the Government, and maintain a separate and sec
tional independence upon their interests, of only the
degree and gravity, and resting in the proof of facts like
these! Now, for the purpose of the argument, let us sup
pose all these things to be wrong. My learned friends,
who have made so great and so passionate an appeal that
individual lives should not be sacrificed for opinion, certainly
might listen to a proposition that the life of a great nation
should not be destroyed on these questions of the opinions
of individual citizens. No — you never can put either the
fate of a nation that it must submit, or the right of malcon
tents to assert their power for its overthrow, upon any such
proposition, of the ill-working, or of the irritations that
arise, and do not come up to the effect of oppression, in the
actual, the formal, and the persistent movement of Gov
ernment. Never for an instant. For that would be, what
Mr. Stephens has so ably presented the folly of doing, to
require that a great Government, counting in its population
thirty millions of men, should not only be perfect in its de
sign and general form and working, but that it should secure
perfect action, perfect opinions, perfect spirit and sentiments
from every one of its people — and that, made out of mere
imperfect individuals who have nothing but poor human
nature for their possession, it should suddenly become so
transformed, as to be without a flaw, not only in its ad
ministration, but in the conduct of everybody under it.

Now, my learned friends, pressed by this difficulty as to
the sufficiency of the causes, are driven finally to this —
that there is a right of revolution when anybody thinks
there is a right of revolution, and that that is the doctrine
upon which our Government rests, and upon which the
grave, serious action of our forefathers proceeded. And it
comes down to the proposition of my learned friend, Mr.
Brady, that it all comes to the same thing, the power and
the right. All the argument, most unquestionably, comes

THE SAVANNAH PRIVATEERS 197

to that. But do morals, does reason, does common sense
recognize that, because power and right may result in the
same consequences, therefore there is no difference in their
quality, or in their support, or in their theory? If I am slain
by the sword of justice for my crime, or by the dagger of an
assassin for my virtue, I am dead, under the stroke of either.
But is one as right as the other? An oppressive Govern
ment may be overthrown by the uprising of the oppressed,
and Lord Camden's maxim may be adhered to, that "when
oppression begins, resistance becomes a right;" but a Gov
ernment, beneficent and free, may be attacked, may be
overthrown by tyranny, by enemies, by mere power. The
Colonies may be severed from Great Britain, on the prin
ciple of the right of the people asserting itself against the
tyranny of the parent Government; and Poland may be dis
membered by the interested tyranny of Russia and Austria;
and each is a revolution and destruction of the Government,
and its displacement by another — a dismemberment of the
community, and the establishment of a new one under
another Government. But, do my learned friends say that
they equally come to the test of power as establishing the
right? Will my learned friend plant himself, in justifica
tion of this dismemberment of a great, free, and prosperous
people, upon the example of the dismemberment of Poland,
by the introduction of such influences within, and by the
co-operation of such influences without, as secured that
result? Certainly not. And yet, if he puts it upon the
right and the power, as coming to the same thing, it cer
tainly cannot make any difference whether the power pro
ceeds from within or from without. There is no such right.
Both the public action of communities and the private ac
tion of individuals must be tried, if there is any trial, any
scrutiny, any judgment, any determination, upon some
principles that are deeper than the question of counting
bayonets. When we are referred to the case of Victor

198 SPEECHES OF WILLIAM MAXWELL EVARTS

Emmanuel overthrowing the throne of the King of Naples,
and thus securing the unity of the Italian people under a
benign Government, are we to be told that the same prin
ciple and the same proposition would have secured accep
tance before the forum of civilization, and in the eye of
morality, to a successful effort of the tyrant of Naples to
overthrow the throne of Victor Emmanuel, and include the
whole of Italy under his, King Bomba's, tyranny? No one.
The quality of the act, the reason, the support, and the
method of it, are traits that impress their character on those
great public and national transactions as well as upon any
other.

There is but one proposition, in reason and morality,
beyond those I have stated, which is pressed for the extrica
tion and absolution of these prisoners from the guilt that
the law, as we say, impresses upon their action and visits
with its punishment. It is said that, however little, as
matter of law, these various rights and protections may come
to, good faith, or sincere, conscientious conviction on the
part of these men as to what they have done, should protect
them against the public justice.

Now, we have heard a great deal of the assertion and of
the execration of the doctrine of the "higher law," in the
discussions of legislation, and in the discussions before the
popular mind; but I never yet have heard good faith or sin
cere opinion pressed, in a Court of Justice, as a bar to the
penalty which the law has soberly affixed, in the discreet and
deliberate action of the Legislature. And here my learned
friend furnishes me, by his reference to the grave instance of
injury to the property, and the security, and the authority of
the State of Virginia, which he has spoken of as "John
Brown's raid," with a ready instance, in which these great
principles of public justice, the authority of Government,
and the sanctions of human law were met, in the circum
stances of the transaction, by a complete, and thorough, and

THE SAVANNAH PRIVATEERS 199

remarkable reliance, for the motive, the support, the stimu
lus, the solace, against all the penalties which the law had
decreed for such a crime, on this interior authority of con
science, and this supremacy of personal duty, according to
the convictions of him who acts. The great State of Virginia
administered its justice, and it found, as its principal victim,
this most remarkable man, in regard to whom it was utterly
impossible to impute anything like present or future,
near or remote, personal interest or object of any kind — a
man in regard to whom Governor Wise, of Virginia, said, in
the very presence of the transaction of his trial, that he was
the bravest, the sincerest, the truthfulest man that he ever
knew. And now, let us look at the question in the light in
which our learned friend presents it — that John Brown, as
matter of theoretical opinion of what he had a right to do,
under the Constitution and laws of his country, was justified,
upon the pure basis of conscientious duty to God — and let
us see whether, before the tribunals of Virginia, as matter of
fact, or matter of law, or right, or duty, any recognition was
given to it. No. John Brown was not hung for his theo
retical heresies, nor was he hung for the hallucinations of
his judgment and the aberration of his wrong moral sense, if
you so call it, instead of the interior light of conscience, as
he regarded it. He was hung for attacking the sovereignty,
the safety, the citizens, the property, and the people of
Virginia. And, when my learned friend talks about this
question of hanging for political, moral, or social heresy, and
that you cannot thus coerce the moral power of the mind,
he vainly seeks to beguile your judgment. When Ravaillae
takes the life of good King Henry of France, is it a justifica
tion that, in the interests of his faith, holy to him — of the
religion he professed — he felt impelled thus to take the life
of the monarch? When the assassin takes, at the door of
the House of Commons, the life of the Prime Minister,
Mr. Percival, because he thinks that the course of measures

200 SPEECHES OF WILLIAM MAXWELL EVARTS

his administration proposes to carry out is dangerous to the
country, and falls a victim to violated laws, I ask, in the
name of common sense and common fairness — are these
executions to be called hanging for political or religious here
sies? No. And shall it ever be said that sincere convictions
on these theories of secession and of revolution are entitled
to more respect than sincere convictions and opinions on the
subject of human rights? Shall it be said that faith in
Jefferson Davis is a greater protection from the penalty of
the law than faith in God was to John Brown or Francis
Ravaillae? But, gentlemen, it was said that certain isolated
acts of some military or civil authority of the United States,
or some promulgation of orders, or affirmation of measures
by the Government, had recognized the belligerent right,
or the right to be considered as a power fighting for inde
pendence, of this portion of our countrymen. The flags of
truce, and the capitulation at Hatteras Inlet, and the an
nouncement that we would not invade Virginia, but would
protect the Capital, are claimed as having recognized this
point. Now, gentlemen, this attempts either too much or
too little. Is it gravely to be said that, when the Govern
ment is pressing its whole power for the restoration of peace
and for the suppression of this rebellion, it is recognizing a
right to rebel, or has liberated from the penalties of the
criminal law such actors in it as it may choose to bring to
punishment? Is it to be claimed here that, by reason of
these proceedings, the Government has barred itself from
taking such other proceedings, under the same circumstances,
as it may think fit? Why, certainly not. The Govern
ment may, at any time, refuse to continue this amenity of
flags of truce. It can, the next time, refuse to receive a
capitulation as "prisoners of war," and may, in any future
action — as, indeed, in its active measures for the suppression
of the rebellion it is doing — affirm its control over every part
of the revolted regions of this country. There is nothing

THE SAVANNAH PRIVATEERS 201

in this fact that determines anything for the occasion, but
the occasion itself. The idea that the commander of an
expedition to Hatteras Inlet has it in his power to commit
the Government, so as to empty the prisons, to overthrow
the Courts, and to discharge Jurors from their duty, and
criminals from the penalties of their crimes, is absurd.

I shall now advert to the opinion of Judge Cadwalader,
on the trial in Philadelphia, and to the propositions of the
counsel there, on behalf of the prisoners, as containing and
including the general views and points urged, in one form
or another, and with greater prolixity, at least, if not ear
nestness and force, by the learned counsel who defend the
prisoners here. It will be found that those points cover all
these considerations:

First. If the Confederate States of America is a Govern
ment, either de facto or de jure, it had a right to issue letters
of marque and reprisal; and if issued before the commission
of the alleged offence, that the defendant, acting under the
authority of such letters, would be a privateer, and not a
pirate, and, as such, is entitled to be acquitted.

Second. That if, at the time of the alleged offence, the
Southern Confederacy, by actual occupation, as well as acts
of Government, had so far acquired the mastery or control
of the particular territory within its limits as to enable it to
exercise authority over, and to demand and exact allegiance
from, its residents, that then a resident of such Con
federacy owes allegiance to the Government under which
he lives, or, at least, that by rendering allegiance to such
Government, whether on sea or land, he did not thereby
become a traitor to the Government of the United States.

Third. That if, at the time of the alleged offence and the
issuing of the letters of marque and reprisal upon which the
defendant acted, the Courts of the United States were so
suspended or closed in the Southern Confederacy, as to be
no longer able to administer justice and enforce the law in

202 SPEECHES OF WILLIAM MAXWELL EVARTS

such Confederacy, that the defendant thereby became so
far absolved from his allegiance to the United States as to
enable him to take up arms for, and to enter the service of,
the Southern Confederacy, either on land or sea, without
becoming a traitor to the Government of the United States.

Fourth. That if, at the time of the alleged offence and his
entering into the service of the Southern Confederacy, the
defendant was so situated as to be unable to obtain either
civil or military protection from the United States, whilst at
the same time he was compelled to render either military or
naval service to the Southern Confederacy, or to leave the
country, and, in this event, to have his property sequestrated
or confiscated by the laws of the said Confederacy, that such
a state of things, if they existed, would amount in law to
such duress as entitles the defendant here to an acquittal.

Fifth. That this Court has no jurisdiction of the case,
because the prisoner, after his apprehension on the high seas,
was first brought into another District, and ought to have
been there tried.

And now, gentlemen, even a more remote, unconnected
topic, has been introduced into this examination, and dis
cussed and pursued with a great deal of force and feeling, by
my learned friend, Mr. Brady; and that is, what this war is
for, and what is expected to be accomplished by it. Well,
gentlemen, is your verdict to depend upon any question of
that kind? Is it to depend either upon the purpose of the
Government in waging the war, or upon its success in that
purpose? If so, the trial had been better postponed to the
end of the war, and then you will find your verdict in the
result. What is the meaning of this? Let those who began
the war say what the war is for. Is it to overthrow this
Government and to dismember its territory? Is it to ac
quire dominion over as large a portion of what constitutes
the possessions of the American people, and over as large a
share of its population, as the policy or the military power

THE SAVANNAH PRIVATEERS 203

of the interest that establishes for itself an independent
Government, for its own protection, can accomplish? Who
are seeking to subjugate, and who is seeking to protect?
No subjugation is attempted or desired, in respect of the
people of these revolting States, except that subjugation
which they themselves made for themselves when they
adopted the Constitution of the United States, and thanked
God, with Charles Cotesworth Pinckney, that his blessing
permitted them to do so, — and, up to this time, with Alex
ander Stephens, have found it to be a Government that can
only be likened, on this terrestrial sphere, to the Eden
and Paradise of the nations of men. What is the in
terest that is seeking to wrest from the authority of that
benign Government portions of its territory and authority,
but the social and political interest of slavery, about which
I make no other reproach or question than this — that it has
purposes, and objects, and principles which do not consult
the general or equal interests of the population of these
revolting States themselves, nor contemplate a form of
Government that any Charles Cotesworth Pinckney, now,
or any Alexander Stephens, hereafter, can thank God for
having been permitted to establish; and that, as Mr. Stephens
has said, instead of becoming gods, by bursting from the
restraints of this Eden, they will discover their own naked
ness, and, instead of finding peace and prosperity, they will
come to cutting their own throats.

Now, what is the duty of a Government that finds this
assault made by the hands of terror and of force against the
judgment and wishes of the discreet, sober, and temperate,
at least, to those to whom it owes protection, as they owe
allegiance to it? What, but to carry on, by the force of the
Government, the actual suppression of the rebellion, so
that arms may be laid down, peace may exist, and the law
and the Constitution be reinstated, and the great debate of
opinion be restored, that has been interrupted by this vehe-

204 SPEECHES OF WILLIAM MAXWELL EVARTS

ment recourse to arms? What, but to see to it that, instead
of the consequences of this revolt being an expulsion, from
this Paradise of free Government, of these people whom we
ought to keep within it, it shall end in the expulsion of that
tempting serpent — be it secession or be it slavery — that
would drive them out of it. Government has duties, gentle
men, as well as rights. If our lives and our property are
subject to its demands under the penal laws, or for its
protection and enforcement as an authority in the world,
it carries to every citizen, on the farthest sea, in the humblest
schooner, and to the great population of these Southern
States in their masses at home, that firm protection which
shall secure him against the wicked and the willful assaults,
whether it be of a pirate on a distant sea, or of an ambitious
and violent tyranny upon land. When this state of peace
and repose is accomplished by Conventions, by petitions, by
representations against Federal laws, Federal oppressions,
or Federal principles of Government, the right of the people
to be relieved from oppression is presented; and then may
the spirit and the action of our fathers be invoked, and their
condemnation of the British Parliament come in play, if we
do not do what is right and just in liberating an oppressed
people. But I need not say to you that the whole active
energies of this system of terror and of force in the Southern
states have been directed to make impossible precisely the
same debate, the same discussion, the same appeal, and the
same just and equal attention to the appeal. And you will
find this avowed by many of their speakers and many of
their writers — as, when Mr. Toombs interrupts Mr. Steph
ens in the speech I have quoted from, when urging that the
people of Georgia should be consulted, by saying: "I am
afraid of Conventions and afraid of the people; I do not want
to hear from the cross-roads and the groceries," which are
the opportunities of public discussion and influence, it ap
pears, in the State of Georgia. That is exactly what they

THE SAVANNAH PRIVATEERS 205

did not want to hear from; and their rash withdrawal of this
great question from such honest, sensible consideration, will
finally bring them to a point that the people, interested in
the subject, will take it by force; and then, besides their own
nakedness, which they have now discovered, the second
prophecy of Mr. Stephens, that they will cut their own
throats, will come about; and nothing but the powerful yet
temperate, the firm yet benign, authority of this Govern
ment, compelling peace upon these agitations, will save
those communities from social destruction and from inter
necine strife at home.

Now, having such an object, can it be accomplished? It
cannot, unless you try; and it cannot, if every soldier who
goes into the field concludes that he will not fire off his gun,
for it is uncertain whether it will end the war; or if, on any
post of duty that is devolved upon citizens in private life,
we desert our Government, and our full duty to the Govern
ment. But that it can be done, and that it will be done, and
that all this talk and folly about conquering eight millions
of people will result in nothing, I find no room to doubt.
In the first place, where are your eight millions? Why,
there are the fifteen Slave States, and four of them — Mary
land, Delaware, Kentucky, and Missouri — are not yet within
the Confederacy. So we will subtract three millions, at
least, for that part of the concern. Then there are five mil
lions to be conquered; and how are they to be conquered?
Why, not by destruction, not by slaughter, not by chains
and manacles; but by the impression of the power of the
Government, showing that the struggle is vain, that the
appeal to arms was an error and a crime, and that, in the
region of debate and opinion, and in equal representation
in the Government itself, is the remedy for all grievances and
evils. Be sure that, whatever may be said or thought of
this question of war, these people can be, not subjugated,
but compelled to entertain those inquiries by peaceful

206 SPEECHES OF WILLIAM MAXWELL EVARTS

means; and I am happy to be able to say that the feeble
hopes and despairing views which my learned friend, Mr.
Brady, has thought it his duty to express before you, as to
the hopelessness of any useful result in these hostilities, is
not shared by one whom my friend, in the eloquent climax
to an oration, placed before us as "starting, in a red shirt, to
secure the liberties of Italy." I read his letter:

"CAPRERA, Sept. 10.

"Dear Sir: I saw Mr. Sanford, and regret to be obliged to
announce to you that I shall not be able to go to the United
States at present. I do not doubt the triumph of the cause
of the Union, and that shortly; but, if the war should unfor
tunately continue in your beautiful country, I shall over
come the obstacles which detain me and hasten to the defence
of a people who are dear to me.

"G. GARIBALDI."

Garibaldi has had some experience, and knows the differ
ence between efforts to make a people free, and the warlike
and apparently successful efforts of tyranny; and he knows
that a failure, even temporary, does not necessarily secure
to force, and fraud, and violence a permanent success. He
knows the difference between restoring a misguided people
to a free Government, and putting down the efforts of a
people to get up a free Government. He knows those are two
different things; and, if the war be not shortly ended, as he
thinks it will be, then he deems it right for him, fresh from
the glories of securing the liberties of Italy, to assist in main
taining — what? Despotism? No! the liberties of America.

One of the learned counsel, who addressed you in a strain
of very effective and persuasive eloquence, charmed us all
by the grace of his allusion to a passage in classical history,
and recalled your attention to the fact that, when the States
of Greece which had warred against Athens, anticipating her
downfall beneath the prowess of their arms, met to determine

THE SAVANNAH PRIVATEERS 207

her fate, and when vindictive Thebes and envious Corinth
counseled her destruction, the genius of the Athenian Sopho
cles, by the recital of the chorus of the Electra, disarmed this
cruel purpose, by reviving the early glories of united Greece.
And the counsel asked that no voice should be given to
punish harshly these revolted States, if they should be con
quered.

The voice of Sophocles, in the chorus of the Electra, and
those glorious memories of the early union, were produced
to bring back into the circle of the old confederation the
erring and rebellious Attica. So, too, what shall we find
in the memories of the Revolution, or in the eloquence with
which we have been taught to revere them, that will not
urge us all, by every duty to the past, to the present, and to
the future, to do what we can, whenever a duty is reposed in
us, to sustain the Government in its rightful assertion of
authority and in the maintenance of its power? Let me ask
your attention to what has been said by the genius of Web
ster, on so great a theme as the memory of Washington,
bearing directly on all these questions of union, of glory, of
hope, and of duty, which are involved in this inquiry. See
whether, from the views thus invoked, there will not follow
the same influence as from the chorus of the Electra, for the
preservation, the protection, the restoration of every portion
of what once was, and now is, and, let us hope, ever shall be,
our common country.

On the occasion of the centennial anniversary of the birth
day of Washington, at the national Capitol, in 1832, Mr.
Webster, by the invitation of men in public station as well
as of the citizens of the place, delivered an oration, about
which I believe the common judgment of his countrymen
does not differ from what is known to have been his own
idea, that it was the best presentation of his views and feel
ings which, in the long career of his rhetorical triumphs,
he had had the opportunity to make.

208 SPEECHES OF WILLIAM MAXWELL EVARTS

No man ever thought or spoke of the character of Wash
ington, and of the great part in human affairs which he
played, without knowing and feeling that the crowning
glory of all his labors in the field and in the council, and the
perpetual monument to his fame, if his fame shall be per
petual, would be found in the establishment of the American
Union under the American Constitution. All the prowess
of the war, all the spirit of the Revolution, all the fortitude
of the effort, all the self-denial of the sacrifice of that period,
were for nothing, and worse than nothing, if the result and
consummation of the whole were to be but a Government that
contained within itself the seeds of its own destruction, and
existed only at the caprice and whim of whatever part of
the people should choose to deny its rightfulness or seek to
overthrow its authority. In pressing that view, Mr. Web
ster thus attracts the attention of his countrymen to the
great achievements in human affairs which the establishment
of this Government has proved to be, and thus illustrates
the character of Washington :

"It was the extraordinary fortune of Washington that,
having been intrusted, in revolutionary times, with the su
preme military command, and having fulfilled that trust with
equal renown for wisdom and for valor, he should be placed
at the head of the first Government in which an attempt was
to be made, on a large scale, to rear the fabric of social order
on the basis of a written Constitution and of a pure represent
ative principle. A Government was to be established, with
out a throne, without an aristocracy, without castes, orders,
or privileges; and this Government, instead of being a
democracy, existing and acting within the walls of a single
city, was to be extended over a vast country, of different
climates, interests and habits, and of various communions of
our common Christian faith. The experiment certainly was
entirely new. A popular Government of this extent, it was
evident, could be framed only by carrying into full effect

THE SAVANNAH PRIVATEERS 209

the principle of representation or of delegated power; and
the world was to see whether society could, by the strength
of this principle, maintain its own peace and good govern
ment, carry forward its own great interests, and conduct
itself to political renown and glory.

*****

"I remarked, gentlemen, that the whole world was and is
interested in the result of this experiment. And is it not
so? Do we deceive ourselves, or is it true that at this mo
ment the career which this Government is running is among
the most attractive objects to the civilized world? Do we
deceive ourselves, or is it true that at this moment that love
of liberty and that understanding of its true principles,
which are flying over the whole earth, as on the wings of all
the winds, are really and truly of American origin?
*****

"Gentlemen, the spirit of human liberty and of free Gov
ernment, nurtured and grown into strength and beauty in
America, has stretched its course into the midst of the na
tions. Like an emanation from Heaven, it has gone forth,
and it will not return void. It must change, it is fast chang
ing, the face of the earth. Our great, our high duty, is to
show, in our own example, that this spirit is a spirit of health
as well as a spirit of power; that its longevity is as great as
its strength; that its efficiency to secure individual rights,
social relations, and moral order, is equal to the irresistible
force with which it prostrates principalities and powers.
The world at this moment is regarding us with a willing, but
something of a fearful, admiration. Its deep and awful
anxiety is to learn whether free States may be stable as well
as free; whether popular power may be trusted, as well as
feared; in short, whether wise, regular, and virtuous self-
government is a vision for the contemplation of theorists,
or a truth established, illustrated, and brought into practice
in the country of Washington.

16

210 SPEECHES OF WILLIAM MAXWELL EVARTS

"Gentlemen, for the earth which we inhabit, and the whole
circle of the sun, for all the unborn races of mankind, we
seem to hold in our hands, for their weal or woe, the fate of
this experiment. If we fail, who shall venture the repeti
tion? If our example shall prove to be one, not of encour
agement, but of terror, not fit to be imitated, but fit only to
be shunned, where else shall the world look for free models?
If this great Western Sun be struck out of the firmament, at
what other fountain shall the lamp of liberty hereafter be
lighted? What other orb shall emit a ray to glimmer, even,
on the darkness of the world?

*****

"The political prosperity which this country has attained
and which it now enjoys, has been acquired mainly through
the instrumentality of the present Government. While
this agent continues, the capacity of attaining to still higher
degrees of prosperity exists also. We have, while this lasts,
a political life capable of beneficial exertion, with power to
resist or overcome misfortunes, to sustain us against the
ordinary accidents of human affairs, and to promote, by
active efforts, every public interest. But dismemberment
strikes at the very being which preserves these faculties.
It would lay its rude and ruthless hand on this great agent
itself. It would sweep away, not only what we possess, but
all power of regaining lost, or acquiring new, possessions.
It would leave the country, not only bereft of its prosperity
and happiness, but without limbs, or organs, or faculties by
which to exert itself hereafter in the pursuit of that prosperity
and happiness.

"Other misfortunes may be borne, or their effects overcome.
If disastrous war should sweep our commerce from the ocean,
another generation may renew it; if it exhaust our treasury,
future industry may replenish it; if it desolate and lay
waste our fields, still, under a new cultivation, they will
grow green again, and ripen to future harvests. It were but

THE SAVANNAH PRIVATEERS

a trifle even if the walls of yonder Capitol were to crumble,
if its lofty pillars should fall, and its gorgeous decorations
be all covered by the dust of the valley. All these might be
rebuilt. But who shall reconstruct the fabric of demolished
Government? Who shall rear again the well-proportioned
columns of constitutional liberty? Who shall frame to
gether the skillful architecture which unites national sover
eignty with State rights, individual security, and public
prosperity? No, if these columns fall, they will be raised
not again. Like the Coliseum and the Parthenon, they will
be destined to a mournful, a melancholy immortality. Bit
terer tears, however, will flow over them, than were ever
shed over the monuments of Roman or Grecian art; for they
will be the remnants of a more glorious edifice than Greece
or Rome ever saw — the edifice of constitutional American

liberty.

*****

"A hundred years hence other disciples of Washington will
celebrate his birth, with no less of sincere admiration than
we now commemorate it. When they shall meet, as we
now meet, to do themselves and him that honor, so surely
as they shall see the blue summits of his native mountains
rise in the horizon, so surely as they shall behold the river
on whose banks he lived, and on whose banks he rests, still
flowing on toward the sea, so surely may they see, as we
now see, the flag of the Union floating on the top of the
Capitol; and then, as now, may the sun in his course visit
no land more free, more happy, more lovely, than this our
own country!"

If, gentlemen, the eloquence of Mr. Webster, which thus
enshrines the memory and the great life of Washington, calls
us back to the glorious recollections of the Revolution and
the establishment of our Government, does it not urge every
man everywhere that his share in this great trust is to be
performed now or never, and wherever his fidelity and his

SPEECHES OF WILLIAM MAXWELL EVARTS

devotion to his country, its Government, and its spirit,
shall place the responsibility upon him? It is not the fault
of the Government, of the learned District Attorney, or of
me, his humble associate, that this, your verdict, has been
removed, by the course of this argument and by the course
of this eloquence on the part of the prisoners, from the simple
issue of the guilt or innocence of these men under the statute.
It is not the action or the choice of the Government, or of
its counsel, that you have been drawn into higher considera
tions. It is not our fault that you have been invoked to give,
on the undisputed facts of the case, a verdict which shall be
a recognition of the power, the authority, and the right of
the rebel Government to infringe our laws, or partake in the
infringement of them, to some form and extent. And now,
here is your duty, here your post of fidelity — not against
law, not against the least right under the law, but to sustain,
by whatever sacrifice there may be of sentiment or of feeling,
the law and the Constitution. I need not say to you,
gentlemen, that if, on a state of facts which admits no di
versity of opinion, with these opposite forces arrayed, as
they now are, before you — the Constitution of the United
States, the laws of the United States, the commission of this
learned Court, derived from the Government of the United
States, the venire and the empanneling of this Jury, made
under the laws and by the authority of the United States,
on our side — met, on their side, by nothing, on behalf of
the prisoners, but the commission, the power, the right, the
authority of the rebel Government, proceeding from Jef
ferson Davis — you are asked, by the law, or under the law,
or against the law, in some form, to recognize this power, and
thus to say that the folly and the weakness of a free Govern
ment find here their last extravagant demonstration, then
you are asked to say that the vigor, the judgment, the sense,
and the duty of a Jury, to confine themselves to their respon
sibility on the facts of the case, are worthless and yielding

THE SAVANNAH PRIVATEERS 213

before impressions of a discursive and loose and general
nature. Be sure of it, gentlemen, that, on what I suppose
to be the facts concerning this particular transaction, a
verdict of acquittal is nothing but a determination that our
Government and its authority, in the premises of this trial,
for the purposes of your verdict, are met and overthrown by
the protection thrown around the prisoners by the Govern
ment of the Confederate States of America, actual or in
cipient. Let us hope that you will do what falls to your
share in the post of protection in which you are placed, for
the liberties of this nation and the hopes of mankind; for, in
surrendering them, you will be forming a part of the record
on the common grave of the fabric of this Government, and
of the hopes of the human race, where our flag shall droop,
with every stripe polluted and every star erased, and the
glorious legend of "Liberty and Union, now and forever, one
and inseparable," replaced by this mournful confession,
"Unworthy of freedom, our baseness has surrendered the
liberties which we had neither the courage nor the virtue to
love or defend."

Ill

ARGUMENT IN THE UNITED STATES SUPREME
COURT ON BEHALF OF THE GOVERNMENT
IN THE CASE OF PETER MILLER AND
OTHERS, CLAIMANTS OF THE BARQUE HIA
WATHA, ETC., AGAINST THE UNITED STATES,
AND OTHER CASES. (THE PRIZE CASES.)

NOTE

What were known at the time, and are reported in the Supreme
Court Reports, as the "Prize Cases" (2 Black, 635-699) arose very
soon after the outbreak of the Civil War, from the capture by
vessels of the United States Navy of vessels and cargoes, either on
the high seas or in the course of attempted breach of the blockade
of Southern ports, which had been established under the proclama
tions of President Lincoln. The vessels and cargoes in question
were captured under claim of lawful prize under the laws of war
and taken into the ports of the United States, where condemnation
under the law of Prize Courts followed. The cases, four in num
ber, came before the Supreme Court on appeals from the judgments
of condemnation, two from the U. S. Circuit Court for the Southern
District of New York, one from the United States District Court
for the Southern District of Florida, and one from the United
States Circuit Court for the District of Massachusetts. It was
arranged with the Court by the various counsel engaged that
argument upon all the cases should be had at the same time.

The general questions involved in the decision of these cases may
be stated in the language of the Court at the very beginning of the
opinion delivered by Mr. Justice Grier. The Court says: "There
are certain propositions of law which must necessarily affect the ul
timate decision of these cases and many others, which it will be
proper to discuss and decide before we notice the special facts
peculiar to each. They are :

1st. Had the President a right to institute a blockade of ports
in possession of persons in armed rebellion against the government,

214

THE PRIZE CASES 215

on the principles of International Law, as known and acknowledged
among civilized States?

2nd. Was the property of persons domiciled or residing within
those States a proper subject of capture on the sea as "enemies*
property"?

Mr. Evarts was retained by the Government in the court of
first instance and in the Supreme Court in the two cases originat
ing in New York. The case arising in the United States Circuit
Court for the District of Massachusetts was conducted on behalf
of the Government by Richard H. Dana, Jr., then U. S. District
Attorney for Massachusetts, and involved the sole question of
"enemies' property." Mr. Dana took a very prominent and
effective part in the Argument before the Supreme Court, and
added much to his reputation. The Argument in these cases
occupied twelve days: February 10 to 13, 16 to 20 and 23 to 25,
1863, and the decision in favor of the Government's contention was
rendered on the 10th of the following month. Mr. Evarts filed a
general brief covering all the cases and made the argument that
follows.

ARGUMENT

FIRST DAY

May it please the Court : Although the importance of the
questions which have been presented, and properly pre
sented, in the argument of this case before this Court can
not well be exaggerated, yet I am persuaded that whatever
novelty attaches to them is to be found more in the attitude
of our nation and our government to them than in the prin
ciples by which their decision is to be controlled; and the
deep solicitude which watches the investigation and expects
your just judgment is due much more to the vital interest
that we all feel in them than to any difficulty which is to
attend their solution. For war is no stranger on the theatre
of human affairs; and whether it comes heralded and with
acclaim or unbidden and unwelcome, it brings its whole
train with it, and while it remains it is master of the scene.

216 SPEECHES OF WILLIAM MAXWELL EVARTS

War never comes till peace is gone, and peace never returns
till war is over. They play no parts together on the same
stage and at the same time. Brief as is the history of our
own nation — not so long in its duration yet but that those
who have reached the Homeric fame

"renowned for justice and for length of years"

have seen its origin and now may contemplate the menace
of its end — yet it has had experience of every kind and form
of war. It came into being through the war of the revolu
tion, which was, in its origin, a civil war, and worked itself
up only on the part of the revolting colonies to a public war
through the successes of their arms; and never till its close,
in the recognition by the parent government making our
nationality wholly legitimate, was it esteemed by the other
belligerent power as other in its character, or in the leading
principles which should govern it, than a war of rebellion.

So too, we, as neutrals, during the long contest growing
out of the French revolution, stood as witnesses of public
war, in the attitude specially relevant to the public law gov
erning public war, for our attitude as neutrals thus brought
us in connection with it.

At the close of the century, in 1798-9, we were involved in
partial or in perfect war with France, and then learned that
while it was war, and while, to the extent and purport and
purpose of its hostilities, it imported the law as well as the
force of war, yet the national power which limited the extent
and character and effort of the hostilities, regulated as well,
by the same measure however and by that alone, the appli
cation of the laws of war.

In 1812, in the open and public war with England, we
came fully under the jurisdiction of the law of nations in
its simplest form of absolute, adverse belligerents.

During the civil commotions which raised the Spanish-
American colonies into independent states — during their

THE PRIZE CASES 217

war of independence, civil and public on one side or on the
other — we, as neutrals, had our part to play, and most
usefully we took the lead in establishing the principles and
according to them the practical results which should gov
ern such a contest as that.

In the war with Mexico, a war in self-defence, if you please,
turned, as the Romans turned their wars of self-defence, into
conquest, this Court had occasion to expound, to instruct
the people, and to establish for the guidance of the future
the principles which can govern a constitutional govern
ment and the application of all the powers of war — not
withstanding, a constitutional rule for its still proceeding
into the domain of conquest.

And now we have the present war in which we occupy, in
some sort at least, — to the apprehension of ourselves, per
haps, somewhat less than in the impartial observation of
neutral nations — the attitude which Great Britain held to
our struggle for independence, which Spain held to her
revolted or warring colonies. It is true, in both of those
contests there was present a marked fact, forming a leading
feature of each of these transactions, which we miss here.
The wide intervention of the ocean separating the revolting
colonies, in one case and the other, from the parent country,
and the separate and independent development under which
the colonies in revolt had grown up, gave to those great
transactions more the form of that struggle in the womb of
the parent nation and that separation of the offspring of
the mother which seemed a natural birth of a nation in prog
ress of time. But, in this war, no such similes of hope and
promise attend the contest. It is all of partition of a united
people. It is a dismemberment of mutilation and of ruin.
And though we thus find that the terrible traits and conse
quences of purely intestine war seem more brought home to
us in this controversy than in the Spanish-American instance,
or in the history of our own revolution, yet we shall find that,

218 SPEECHES OF WILLIAM MAXWELL EVARTS

after all, so far as those traits and features are concerned
that are to affect our estimate of the character of the con
flict — the fact of the confederated form of our government,
the distribution of powers in the general and among the State
governments, giving to the effort and front of war, without
its legality of political tie and alliance, nevertheless, the form
of organized communities struggling as if an existing or
nascent state against the parent government — all this, if the
Court please, should satisfy us that the situation, full as it
is of public and of private griefs, for the first time to us, is,
however, a situation not novel or unfurnished with guidance
in the history of the world. We may know and feel that the
instruction in the law of war which this nation has gained
through those experiences are to serve for its rules now; for
we know: "Nee erit alia lex Romae alia Athenis, alia nunc,
alia posthac, sed ad omnes gentes, et omni tempore, una lex;
et sempiterna et immutablis continebit."

The law which we are to administer is not different from
that which is to be administered in the courts of London and
in the courts of Paris. It is not other than was administered
at the period of our own revolution, or during the struggle
of the Spanish-American states. But, furnishing its pure,
its everlasting and unchangeable rules, we are to bring the
facts of our situation for its entire and perfect judgment.

Now, if this public and universal law of nations is to be the
guide of the determinations of this Court, is there anything
in the fact that this Court sits under a constitutional gov
ernment and derives its power and authority through a
constitutional government, ruled over by the organic law,
that makes its administration other and different, more
limited or more confined, than the simplicity of the law of
nations dictates in all such situations? Why, certainly not.
This Court sits here, in its full Bench precisely in the same
jurisdiction as the Prize Court.

The Prize Court derives its authority from the federal

THE PRIZE CASES 219

Constitution, by, for which, and to whose use, it is imparted.
That authority is imparted that it may sit as a court, created
and exercising the municipal law of the country that created
it, and existing for the exposition and administration of the
public law, the law of nations; and when this principle has
been furnished by our constitution and our laws for the juris
prudence and judicature of the Prize Court, that is all that
is furnished it. It has introduced it to the law that is to
govern it, as is well expressed, in a somewhat similar situation
of laws, in the administration of the judicature of a court,
by the celebrated Sir Wm. Scott, sitting in the Consistory
Court, in the great case of Dalrymple and Dalrymple, which
was to test the authenticity of a Scotch marriage:

"As the case is considered in an English court, it must be
determined by the principles of English law, that are appli
cable to such a case. But the only principle of English law
furnished for the case is that the validity of the marriage rites
in the case must be determined according to the principles —
if the rites existed at all — of that country where the marriage
had its origin. Having furnished this principle, the law of
England retires from the discussion and leaves to the exclu
sive judgment of the law of Scotland the decision of the case/'

Now, if the Court please, before asking attention to the
particular considerations which may be necessary before
the determining of the case in argument as in decision, it
behooves us first to look at the situation, at the absolute,
incontrovertible, predominating facts which introduce this
subject of discussion. My learned friend, Mr. Lord, with
much weight and solemnity, has referred to the difficulty,
to the impossibility, of changing a past fact or a past state
of facts. He has even ventured to say, reverentially, that
omnipotent power could not find that within its scope. Let
me ask my learned friend and the judgment of your Honors,
whether there is not the same difficulty in changing exist
ing facts or, by theories or contrivances of law, obliterating,

220 SPEECHES OP WILLIAM MAXWELL EVARTS

obscuring, or defeating them. Is not a present fact, is not
a present state of facts, as stubborn, as uncontrollable by the
will of law-makers and of law-givers, as a past state of facts?

Now the situation so very well opened to your Honors by
the various counsel on the one side or on the other who have
addressed you, comes substantially to this. The govern
ment of the United States by its constitution and its laws,
having rightful authority over the whole territory of the
Union and over all its population, finds itself, at the middle
of April, 1861, confronted by this situation of affairs: Polit
ical discontents, civil dissension, civil revolts, civil treasons,
had occupied and controlled a territory which had for its
division a line across the land from the mouth of the Chesa
peake to the waters of the Missouri River; and this partition
or division, held under not the least authority or pretence of
authority of legislation, as proceeding from or consistent
with the maintenance of the government of the United
States, was protected and defended by the power of the pop
ulation which inhabited it. For its other boundaries it had
the wide reach of the sea coast, from the same point of de
parture, the mouth of the Chesapeake to the mouth of the
Rio Grande, taking in the Atlantic and Gulf coasts.

This revolt, so far accomplished as, in fact, to have ex
cluded all the peaceful authority of the government of the
United States, there was no Court, no Judge, no marshall,
no prosecuting officers, no jury grand or petit, that could
exercise in any form or to any degree, the peaceful authority
of the government of the United States within that entire
region. There was no secondary reinforcement by the means
of civil and peaceful authority, that in any part of that ter
ritory or for any part of that people could be brought to
support the peaceful authority of the government. There
was no power of any county, no power of any district that
maintained the authority of the United States government
or would have obeyed the call of its civil magistracy.

THE PRIZE CASES

Now, without giving, at present, the least attention or
effect to the political, the legislative, the magisterial pro
ceedings of that population, or on this theatre, that had been
adopted, and were in prosecution, we look at it as a simple
fact, stubborn, irresistible, uncontrollable, that this was so.

But this community, thus extensive in its occupation of
territory, thus numerous in its population, was also a commu
nity, like that of the rest of this favored nation, advanced
in all the proficiencies of civilization and closely connected
in the most powerful relations of international communica
tion by the paths of peaceful commerce. It held within its
possession immense staples, the object of desire of all the
world, for which commerce, now as heretofore, was ready
to venture all and more than all its peaceful risks. It was in
the condition, from the very shape and form in which its
peaceful commerce was developed, of needing from all the
rest of the world, in exchange for those great staples, what
went to supply the demands of a peaceful people, and, still
more emphatically, of a power which was to undertake and
to prosecute a war.

Now, in that condition, if the Court please, the Govern
ment of the United States could not find support in theory,
in legislation, or in peace. It was no defect of our laws,
either in their vigor, or in their scope, or in their multitude,
that our authority was not maintained in this region and
over this people. It was not that the magistracy, from the
President down to the marshalls was not as vigorous, as use
ful and as powerful as peaceful magistracy can be or ever was.
It was not that against resistance, tumult, and disturbance
that fell within the range of riot or emeute, this government
was not powerful enough in its civil magistracy or in the
power of the loyal people who were ever ready to attend its
call. But the whole fact was this — that peace was sup
pressed, magistracy excluded, authority derided and tram
pled under foot, and by mere power of war.

222 SPEECHES OF WILLIAM MAXWELL EVARTS

Now the Government was to meet this situation. How
was it to meet it? There was no defect in its legislation.
There was no defect in the distribution of executive power
and authority — not the least. There was no difficulty, no
failure, no inadequacy, if it could be dealt with by municipal
law and through the municipal power. But the difficulty
is that although, as our learned friend, Mr. Edwards, said,
domestic trouble is under municipal law, in theory, yet when,
in fact, it rises above municipal law, the statute book will
not execute itself, and there is nothing else to execute it in
the power of a government in its peaceful administration.

The Government must surely then meet this situation.
It could despair, fold its hands, betray its trust, and sur
render the dignity, the power, the fame, the inheritance
and the hopes of this people, to a rebellion that is thus suc
cessful. Whether the Government should do that rests in
the breasts of the people, in their primary capacity or in the
representative majestatis, the Congress, to which they have
entrusted the national power. But if you pass this point,
that the rebellion is not yielded to, the Government not
overthrown, then I submit that I go into no loose generali
ties, hang on no uncertain theories, rest on no legal vagaries,
when I say that the Government is to be guided and con
trolled in what it does, by the facts that are before it. For
if our learned friends or any of those who are to sit in judg
ment on the legal rights and powers of the Government in
this situation, had been called into its responsible counsels,
when the moment of action had come, and the moment of
useful action was fast passing away, I take it that, if they
had resolved to meet the rebellion and to suppress it by the
power of the Government, there could be no more simple and
unanswerable proposition than that they should meet it
with appropriate means — not by means that might have
been, or that had been appropriate to other situations in the
affairs of this world, or to other situations in the history of

THE PRIZE CASES 223

our own Government, but by means that were appropriate
to the actual front and power, and threat of force in war,
that were moved against the Government, and having, by
that necessary reason, adopted appropriate means, it seems
but the next step in the plain sense of the transaction. For
as well settle at once into the despairing surrender of the
power of the Government, as to find ourselves limited by the
Constitution, by any law of human conduct or by any pre
tence of constraint, to means that were inappropriate and
inadequate. Who will advise to apply inappropriate and in
adequate means? Who will advise that there is any other
instruction or control as to what is suitable and appropriate,
what is adequate and effectual, except a wise and prudent
and dispassionate — I agree — estimate, but still an estimate,
of the mien and port, the proportions and dimensions, the
efforts and the plans, the resources, the alliances, the con
nection, the revenues, the supplies, which this rebellion
counts among its appropriate and its adequate means to
overthrow the Government?

Our learned friends have made a strange reversal of a
maxim as universal as human nature, and as permanent as
the world's history or future — "necessity knows no law."
But I hold that law, constitutional law, the law of a free
people, knows no stress and no necessity. This is an agree
able, as, fortunately for us, hitherto it has been a practically
true view of the situation of our affairs. But if, when the
stress and necessity come upon us, our freedom from those
constraints has enervated, not the physical power of the
people and its resources for war, but has absolutely enervated
and overthrown the primary counsels and wisdom, out of
which alone safety can grow to the republic, then indeed
have we fallen a final victim to that imputed vice of free
republics, which separates debate from action, resolve from
execution, wisdom from power.

Now, he who shall overlook, in dealing with this rebellion,

i

224 SPEECHES OF WILLIAM MAXWELL EVARTS

the facts concerning its line of coast, its foreign commerce, its
great prizes to external commerce seeking its ports, its great
needs, its great needs for internal commerce to supply its
war, would, in the judgment of all wise forecast, and in the
retrospect of history, be condemned as one who overlooked
the first and most appropriate means and object for the appli
cation of the national power, and that which promised the
most of adequacy and effect.

But it does arise in a different form, in respect to a differ
ent subject, and on a diverse exercise of the power of war —
maritime capture, either in the sense of enemy property,
as subject to it, or for breach of blockade, or cargo of con
traband goods.

Now, your Honors will perceive that in all the cases that I
have proposed on which the question might arise in the
operations of our forces on land, the complainant either in
criminal or in civil courts, must have been a loyal citizen of
the United States defying in every way the power and en
treaties of the persuaders to rebellion, and must therefore
be within all the principles of the parental obligation of the
Government to him and of the protection of the existing
legislation of the country, and of its administration of jus
tice in the courts, that have been invoked for these claim
ants in these prize cases. And then your Honors would have
had occasion to calculate how any court of common law or
equity jurisprudence should have interfered with or ob
structed the direct application of the power of the Govern
ment in the form of war. But it is presented, as I have said,
in the form of prize judicature, and it is said that there is
wanting that necessary support and element of municipal
legislation and of authority, yea even in the law of nations,
to bring maritime capture and prize of war, moved against
the property, in trade, of loyal citizens within the region of
rebellion, under sentence and condemnation in a prize court.

What are the general propositions on this subject needing

THE PRIZE CASES 225

to be contended for on one side or the other, and which,
with greater or less directness, have been presented to your
Honors? On the part of the Government it seems to me that
the correct statement may be very briefly this: That when
insurrection or rebellion has escaped the control of all the
means open to the peaceful administration of Government,
then Government may apply all the means of warlike force
for the reduction of the power of rebellion, against per
sons, against territory, and against trade, which it may find
appropriate and adequate to the end in view, and which
under the law of nations governing all contests of force which
come to the magnitude, and use the methods, of war, are
allowable in public war.

Now, that the law of nations does govern all contests of
force that come to the magnitude and use the methods of
war, has not been controverted on any settled authority of a
publicist or well-adjudicated case in the courts of the civil
ized nations. The question is, of peace or war. The whole
division of the subject of public jurisprudence among nations
is between these two conditions — that public law recognizing
no other. I refer to Grotius, De Jure Belli et Pads. Sir
James Mackintosh says that "the province of the law of
nations is to modify the intercourse between common
wealths in time of peace and to limit their hostilities in war.
It has no other function in respect of hostilities, but to
limit, to assuage, to rob them of their offences of cruelty
and military force. But it does not detract, or attempt to
detract, one atom from the weight and momentum of their
efficacy." This being, then, the general proposition of the
right of a nation to apply its means and resources, appro
priately and adequately, against persons, against territory
and against trade, the next general proposition is, that the
prize judicature has in it no quality of mulct or penalty, or
of punitive or retributive justice, but attends the forcible
capture wholly on motives and for purposes of confining such

17

226 SPEECHES OF WILLIAM MAXWELL EVARTS

forcible captures pursued on the high seas to the recognized
and allowed obligations of such forcible captures and of
protecting all other property and interests therefrom. We
claim that the right of force against the enemy's trade is as
much within the competency of a government, exercising
power to suppress a rebellion, as its application direct against
persons, or by overrunning territory. And we claim that
it is a pure misconception to attribute to the prize jurisdic
tion that quality of fine, of penalty, of punishment, and of
retribution, which enters into judgment on the conduct of
the adverse party in a war.

If these two propositions be sound, it will be found that
all that is urged against this authority of the Government
against trade, and this particular form of enforcing its
authority in the trammels of the laws of nations, fail en
tirely in their application and in their effect.

Now, the propositions on the other side, as presented and
urged with such various form and with so much effect by
the learned counsel who spoke last on the part of the claim
ants in this case, my friend Mr. Lord, are, I think, to be
properly presented thus. And that is why argument will
be found to turn upon, and constantly recur to, one or the
other of these ideas, for its entire support. He claims that
the situation discloses a treasonous war against the Gov
ernment, which is a personal war, and not a territorial war;
that the Government proceeds only against personal delin
quents and not on any attribution of hostility to residence
or incorporation in any community or region drawn into
hostilities. And, secondly, that this special character of
war, whatever direct application of force and weight of
adverse war on the part of the Government it may support,
draws to itself none of the judicial inquisitions and sentences
which come in as the law of full war. And he attributes to
the prize jurisdiction and to the prize sentence, that quality
of inquisition into, and punishment for fault or guilt.

THE PRIZE CASES 227

The propositions of our learned friends from Boston who
maintain the case of the claimants, as drawn from the oral
arguments and from the printed brief, are, it seems to me,
fairly stated thus: I quote now from the brief itself:

"Undoubtedly the Government has belligerent rights
against its rebellious subjects, but they are confined to its
subjects actually in rebellion and cannot be exacted by
confiscation so as to create forfeiture of the goods of inhab
itants merely of territory held by rebels, without some posi
tive legal enactment. 2d. Judgment in a Court of Prize
must follow and rest upon acts and declarations of the Ex
ecutive, which themselves must be passed upon and sup
ported by Acts of Congress, or directly upon Acts of Con
gress, as the support of the Judgment of the Court."

Then it is claimed that the action of the Executive under
laws for the suppression of the rebellion does not create the
status of war followed by the secondary or legal conse
quences, — as it is called throughout the controversy — of the
prize jurisdiction.

Then, that the acts of Congress subsequently passed are
to be construed as declaratory of the original relations of
persons and property to the Government — in which we, of
course, cordially agree. And they insist that they show —
that is, these later acts of Congress — not the result of con
fiscation for residence, but the contrary — that the visitation
of law is wholly on those in rebellion actively and who
are guilty of treason.

"5th. That these subsequent Acts of Congress give con
struction to the proclamations and show the exact status
to be, that loyal citizens, retaining their residence within
the region of rebellion, are not enemies but citizens, entitled
to protection and not to confiscation."

And they then allege as a general conclusion, and on ad
judications and text writers that, "no case can be shown in a
civil war where confiscation has been made from mere resi
dence, but from some special decree of Government."

SPEECHES OF WILLIAM MAXWELL EVARTS

Now, if the Court please, however novel and interesting
these primary considerations of this situation and its con
sequences between a Government and rebellious subjects
may have been when the first prize court was opened and
when the exercise of this belligerent authority of the Gov
ernment of the United States made its first captures, it
seems to us that, in resolving what the laws of nations are
and what the rights of Governments thrown into this pre
dicament are, under the public law of the world and toward
the nations of the earth, there is some aid to the argument to
be found in the fact that, inspecting the question under the
strongest interest that can ever influence foreign nations
not to treat this as a war or allow it to be treated as a war,
every maritime power, every great nation, every civilized
community, that is drawn within the folds of commercial or
friendly intercourse with this country, has pronounced it a
war on the first intelligent examination of it and has sur
rendered all its rights, all the rights of its subjects, bowing to
the overwhelming fact of war and its irresistible, indisput
able law-making power.

Now, supposing it stood here; supposing it stood merely on
the public history of these transactions, as it is to be collected
from the political action of the civilized, commercial, mari
time nations of the world, supposing that in the final winding
up of these transactions, either by the re-establishment of
the authority of the Government and the suppression of the
rebellion, or in any measure or degree of its — the rebellion's —
success, the history is closed, and is to form an example for
the future, as an exemplar authority in international law —
who shall say that it is not a decree pronounced on the clear
est evidence of fact, and the most solemn and authoritative
judgment, that this is war, and gives international rights of
war toward neutrals, and gives authority of war between
the opposing forces that contend on the one side and the
other in the struggle of civilized communities, whose forces

THE PRIZE CASES 229

are the whole strength and resources of the respective popu
lations, the whole energy and power of their respective inter
national, commercial relations?

What, if the Court please, is this system of the law of
nations that adapts itself to, and controls such situations?
It is "the voluntary law of nations." Such is the phrase of
the books. Such is the nature of the authority — for there
is no power compelling the assent or action of nations. It
is the voluntary law of nations. It is under the voluntary
law of nations that we claim to exercise the right, and that
neutrals should submit to it. It is under that great law of
nations that, if at all, they do submit to it. And if their
present voluntary conduct be not a confirmation and support
of those principles, as aforetime existing and forming a part
of the law of nations, and if this stood as a new and original
consent, it would introduce and establish a part of the vol
untary law of nations, that could not fail to be respected in
the future.

So, too, when we come with great respect to the authority
of this Court, we seem to find some support to the argument,
that may turn the balance and burden on the claimants here,
in the fact that every prize court in the nation has found in
the law of nations, has found in the situation of facts which
introduced the controlling authority of the law of nations,
the necessary, the invincible requirement to sustain the prize
judicature as within the competency of the Government.
Their learned opinions, pronounced independently, reasoned
on their own vigor, and supported by as comprehensive
research as is needed for the elucidation of the subject, are,
or will be, all before your Honors.

In the third proposition, which I have not seen success
fully contested, that no authority of prize law, no authority
among accredited writers on the law of nations, has ever
pretended to say that a situation, arising between the two
parts of a nation, whether it divided it into mere factions, or

230 SPEECHES OF WILLIAM MAXWELL EVARTS

whether the parental government maintained its authority
and fought against traitors, cannot, if the facts brought
it to that head and necessity, not only support, but compel,
the introduction of the laws of war in all their force and
authority, I mean to say that the enlightened, advanced,
humane, principles of the law of nations will not permit war
to exist in that brute and violent force, without the impor
tation of the moderating, controlling, restrictive, assuag
ing, influences of the laws of war. Even those foreign au
thorities that have been introduced, and in part transcribed
on the briefs of our learned adversaries — the most favorable
to them that their researches could furnish, and quite re
mote from the usual sources of international law to which we
are accustomed to apply in our courts or in the courts of
England — contain no limitation that will not introduce,
when the facts pronounce themselves sufficiently, the ab
solute and complete authority of the law of nations. Thus,
in the extract from the civil law, most relied upon in the
brief in the Boston case, de captivis, it is said, "In civil dis
sensions, although often, by that means, the commonwealth
is exposed to injury, nevertheless the contest does not touch
the safety, or threaten the destruction, of the republic";
and, in such cases, the rule is asserted that the change from
freedom into slavery is not accomplished by seizures in such
a war. Without discussing or presenting what is apparent
to observation, the entire difference that exists on this mat
ter of personal freedom, from the consequences of destruction
of the power and strength of the enemy by the direct ap
plication of war to its trade, it will be apparent that the
whole limitation there rests on the fact that the civil dis
sension is within the limit of effecting injury — as by the ex
istence of strife every community is injured — but has in it
no threat of destruction to the public constitution — the
commonwealth itself. So, too, Hefter, quoted here, says,
"The state of war legally exists between such parties only

THE PRIZE CASES 231

as are entitled to exercise the extreme rights of self-defence,
and therefore it can only take place between parties entirely
free and independent of each other, and who are not subject
to a superior jurisdiction common to both. Such is a war
between sovereign states, or against individuals belonging
to no state — such, for instance, as freebooters, filibusters,
pirates and the like. An internal war between political
factions can, at best, claim legality as a matter of necessity;
and it can never give rise to a regular state of war such as
may exist between states foreign to each other."

Now, this writer, theorizing on the possible situations in
human affairs, necessarily concedes that legality of war must
come in by necessity, as soon as the necessity arises. We
agree that the legality of war comes in upon a necessity,
which absolutely overthrows the peaceful authority of the
Government, closes its courts, and banishes peace; and then,
as I have attempted once to show, there is but one of two
choices open to the state — one to yield its life to the attack
made upon it, one to defend itself by such power and re
sources as it possesses.

So your Honors will find that these remote theories of these
writers do not attempt the absurdity of saying that they
will control, or that any written authority of law has con
trolled, or can control, the submission of all things human to
a necessity which overpowers.

Now, the topics in their due subordination which seem
to need discussion, I humbly suggest to the Court are these:

1st. Of the powers of the Government in the suppression
of rebellion.

2nd. Of the department of the Government in which
these powers are lodged.

3rd. Of the measure and sense in which these powers
have been exercised.

4th. The mode and form, in their legal nature and effect,
in which the property now in judgment became involved in
their grasp.

232 SPEECHES OF WILLIAM MAXWELL EVARTS

And then the lawfulness of the captures and the validity
of the sentence in prize.

This brings me, if the Court please, to the consideration
of the first proposition in my printed brief, page 22.

"The situation in which these vessels and cargoes are
found, as presented to the Court is, that they were seized
at the dates of the 17th and 20th of May, about the 20th
of June, and 10th of July, in all cases by public armed vessels
of the United States Government, brought into port, de
livered to the prize Judges, libelled in prize by the District
Attorneys, condemnation demanded in the name of the
Government as prize of war, adjudication had, sentence
passed; and from the sentence of condemnation, the appeal
has been taken."

Now, I relieve at once this argument from what has formed
so large a part of the effort, with zeal and great ability
pressed, of our learned opponents, to argue that this Gov
ernment cannot, in the situation disclosed, by its executive
power, either legislate into existence crimes, and apply to
them penalties and confiscations, or try a case of personal
fault and delinquency — that it cannot subject to attainder,
and, by consequence, that it cannot overthrow the rights of
property by a blow, and that these sentences and these pro
cedures cannot be defended on any such principle or sup
port. For we agree that there is not the least quality of
municipal or statutory offence in the conduct of these ves
sels or of their cargoes, nor of municipal or statutory for
feiture in the procedure for their condemnation.

We do not oblige our learned friends to argue that such
things cannot be done, for we admit that they have not been
done and have not been attempted in these procedures.
Whether indictment, trial, conviction and sentence, with
this or that result of personal punishment or fine, can be
based on anything, on any new relations that have arisen
in consequence of the war, wherever it may be debatable,

THE PRIZE CASES 233

is not debatable here; for the Government has taken no
such proceeding, and asserts no such right in these causes.
Nor have their condemnations proceeded at all as an inci
dent or as a consequence of any inquisition into the personal
guilt of any of the owners of the condemned property, as
being traitors or rebels, or aiders or abettors of treason or
rebellion. We say openly and distinctly that, as an admin
istration or execution of law under the peaceful authority
of the Government, the whole transaction, from capture to
sentence, is without any support. It is only in and from a
state of war, having its own laws, tribunals, processes and
sanctions, that the offence, the arrest, the Court, the trial,
and the sentence, have their origin and legal validity.
And if the status fails, the captures were, undoubtedly,
open and violent piratical aggressions on peaceful commerce,
the prize jurisdiction is imaginary, and the sentence in
effectual to pass property in the vessel which may be sold
under it.

And now, if the Court please, having cleared ourselves of
the least necessity of maintaining or defending those powers
of confiscation and of punishment by mere authority of the
President, or of attaining statutes or procedures that would
justify them, I proceed to submit to your Honors what I sup
pose to be the whole subject of jurisdiction and determina
tion in a prize court. I say that, as a matter of its own
jurisprudence, and its own determination, there is but one
question before a prize court — and that is, prize or no prize
— that the existence of the jurisdiction, the openness of the
Court, rests on the postulate that there is war. Now, wheth
er there be war or not is, I agree, a question to be determined
on principles furnished by the law of nations under which the
prize court sits.

The mere fact that a vessel is brought into port and a libel
filed by the District Attorney does not oblige the prize court
to open itself to the hearing and administer the law of prize

234 SPEECHES OF WILLIAM MAXWELL EVARTS

or no prize. But although the determination whether the
preliminary postulate of war exists to raise the prize juris
diction, is solely and wholly by the recourse of the prize
court to the action and voice of the political powers of the
Government under which it sits, it never was heard of that
a prize court can erect itself into a jurisdiction to recapture
a vessel that its sovereign had seized in the right of war.
Never, — but to learn, under the Commission with which the
sovereign had entrusted it, whether it was such a capture as
the sovereign intended to make. It never was allowed to
say that there was no war, when the sovereign said that
there was. It never was allowed to say that a seizure was
not made in the intent and under the assumed authority of
being by the law of war, when the sovereign said that it was.
The moment that any such pretence or assertion of authority
is submitted to, it is made not a court under the Govern
ment, but a court over the Government. It is determining
whether a war exists which the sovereign has declared to
exist, and is determining whether the sovereign, in a cap
ture unmistakably forcible, shall hold his prize, or whether
the court shall recapture it, and deliver it to the hostile or
adverse party.

Now, if the Court please, this proposition does not in the
least interfere with what we recognize as the familiar and
necessary jurisdiction of the prize court. The object of the
prize court is not to give to the sovereign a right to capture.
The sovereign asserts his right to capture. How does he
declare his right to capture? If he has declared a war, or if
he is engaged in a war, he asserts his right to capture all
property that, according to the laws of war, is affected with
the quality of enemy property, by its being really in the
ownership of the hostile party, or by such conduct, breach
of blockade, or cargo contraband, as exposes neutral prop
erty to the same consequences which hang over enemy
property.

THE PRIZE CASES 235

When, therefore, the sovereign brings in his prize, it is a
concession to that principle of the law of nations, demanded,
to be sure, and insisted upon by neutral nations as the condi
tion of their assent to the exercise of belligerent rights at
all, on the open sea, and on indiscriminate commerce, — that
the sovereign is to bring in the property captured and not
destroy it. It is that it shall be brought in and submitted to
judicial investigation whether it, the very res before the
court, comes within the right of the Government prosecuting
the war under the laws of war. The sovereign cannot seize
friends' property. All neutral property must submit to
search, visitation, and to arrest. It cannot resist arrest.
But when the inquisition is open, then the inquiry is, does
this very thing, the res before the court, fall within the predic
ament whereby the sovereign of the court, prosecuting the
law of war, may rightfully seize, under the law of nations.
But, supposing that the sovereign has asserted a principle
of capture under the law of nations, and has put it in execu
tion, what is the duty and what the situation of the prize
court? Why, manifestly, the duty of the prize court is to
say and to see, "the sovereign has assumed the responsi
bility of this principle of maritime capture as being within
the authority of the law of nations, and which he insists
upon. His prize court has no commission to thwart that
purpose or overrule that confiscation. The sovereign, if
in fact he has departed from, gone beyond, the rights of the
law of nations, is responsible in his political capacity to the
states whose subjects have suffered injury for those offences."
But if you will introduce into the jurisdiction of a prize court
this faculty of setting free what the sovereign has announced,
as his purpose and his construction of right under the law of
nations, to seize, you at once turn this jurisdiction from its
pure and simple function — of examining into the circum
stances of the seizure, to see whether it is within the asserted
right of the sovereign — into a power over the sovereign, into

236 SPEECHES OF WILLIAM MAXWELL EVARTS

an ally of the enemy, into an aid against the public and united
authority of the nation.

Now, if the Court please, when we have sought in our
judicature on this question, as applicable to the situation in
which the controversy was between foreign parties and we
were a neutral, it is familiar lore that the question of war or
no war, as the preliminary postulate to the question of prize
or no prize, was referred by our courts to our own Govern
ment in its political capacity. The political power of this
Government, when it settles political questions, settles
them under responsibility, settles them under reasons of
state, settles them under reasons of public policy, influenced
by a thousand considerations which never can come before
a court of justice; and the courts of the nation have never
spoken a different voice from their Government on the ques
tion of war or no war, whether they are applying this judg
ment to a situation, as in the Spanish-American cases, where
the conflict is between parts of another nation, or to a public
war, or to a private war, or to a civil war. A seizure made
by a Government may be brought into a court of prize
and yet the prize court reject the jurisdiction. What does
it look at ? Is the seizure made by the authority of
the Government? Yes. Is it made jure belli? If it is
made jure belli by the sovereign, then we examine to see
whether he has a right, under the law of nations, as the
court interprets it, or whether he has asserted a right on his
own construction of the law of nations, to make the capture.
But if the sovereign has not made it jure belli, although he
has made it in fact, if he has made it as a part of a system of
peace embargo, of arrest as matter of precaution, and pre
liminary, then it is not an arrest jure belli, and as the prize
court has not the least jurisdiction over anything not done
jure belli, it remits it to its jurisdiction and leaves it under
the civil constraint to which it was decided to belong.

Such are the decisions in the cases to which I have re-

THE PRIZE CASES 237

ferred, but most distinctly and emphatically when an arrest
is made at the outset, or in advance of open and publicly
declared, or fully established hostilities that come up to the
state of war. When this arrest was made, the undetermined
and unsettled state of things would have made it unsuitable,
premature, to declare such an arrest as being jure belli',
for the fact of the political recognition by the Government of
war, would not have been made apparent. The arrest,
however, is made. And subsequently those sparks of col
lision have lit up, between the two powers, the flames of war.
Then this previous arrest is made the basis of a libel as prize
of war. And then the court, looking back through the
light of subsequently developed facts which produce an open
war, says that the arrest was jure belli, in that preliminary
assertion, not of municipal right, not of peace embargo, but
as of the outset and initiation of war; and then the condem
nation proceeds as prize of war, jure belli, applying the po
litical construction and conduct of the Government, after
wards appearing efficacious, to the facts as in the time of the
seizure.

Now, what is the first argument and what the first test
on which a prize court would be asked to say that a seizure,
brought in for its adjudication, was not, in intent and in
truth, a capture jure belli? If it was brought in by a public
armed ship of the United States from the open seas, it would,
on the face of it, seem to be an act of war, and not a municipal
or peaceful arrest — not to have anything of exchequer in it,
or confiscation, but prize of war. If, in addition to that, no
advocate, no argument, could present an alternative power,
of peace and of municipal authority, under which the arrest
could, by possibility, have been made, the court would say
that that arrest — there being no possible support, no pos
sible authority of municipal jurisdiction under any existing
law, or municipal procedure under any existing law whereby
the arrest had been made — if it were proved to have been

238 SPEECHES OF WILLIAM MAXWELL EVARTS

made by the sovereign authority, and was not a marine tort,
not a private injury, not a marauder's spoliation, must have
been made by the sovereign, jure belli. I submit, then, to
your Honors that the prize jurisdiction, in its original sen
tence and at this stage, is limited to the inquiry whether it
be prize or no prize under the rules of war on a capture
jure belli. And on the question whether the capture was
made by the United States of America, jure belli, you are
only to look to see whether the political authorities of the
Government made it peacefully or jure belli. If peacefully,
your jurisdiction is gone, and you surrender it to the peace
ful jurisdiction of whatever court may have jurisdiction of it.
But if you find that the United States of America asserted
the jus belli and, in the execution of it, made these captures,
you never can overthrow the political authority of the Gov
ernment, and surrender to the enemy what your Govern
ment has chosen to seize.

If, then, the prize court is right in its determination below
that the capture was made jure belli, was it lawfully made
jure belli is the question of prize or no prize. And that
brings me, if your Honors please, to the consideration of
one of the particular circumstances in the Crenshaw's
case. This will be found stated at page 13, and the subse
quent parts of my brief.

Now, what are the principles and usages of the law of
nations applicable to a state of war and to the assertion of
jus belli which subject to sentence vessels brought in as
prize? Halleck, in his book, page 472, referred to on my
points, has very succinctly and very truly stated the exist
ing and established law of nations to be that when two
powers are at war, they have a right to make prize of the
ships, goods and effects of each other on the high seas, and
that that right of capture includes not only Government
property but also the private property of all citizens and
subjects of the belligerent powers. That is the asserted

THE PRIZE CASES 239

right, the jus belli. If I am right, then we have only to
consider, in the argument, whether this property comes
within that predicament. Now, there are various claimants
here, and there are special circumstances distinguishing the
predicament of the particular items of property for which
they press their claims. My learned friend, Mr. Lord, has
stated what is presented in my second point, that the to
bacco shipped by I. and I. H. Caskie presents no question of
difficulty within the scope of the general inquiry of prize or
no prize. It is the property of Richmond merchants, es
tablished in trade there, and constituting a part of the
people, and their trade a part of the trade, of the hostile
region of the rebellion. If the law of prize is applicable, if
the jus belli has been asserted by our Government and the
capture made, your Honors will find no difficulty in con
firming this capture by the law of nations, in the sense that
it was what the sovereignty intended to capture. In re
gard to the invoice of Richard Irvin & Co., there are two
views that may be taken of it — first, whether this invoice
was wholly the property of Richmond merchants, or whether
it was held in moiety, in part ownership or partnership, by
the Richmond merchants and by Richard Irvin & Co., the
New York merchants. The statement is wholly contained
in the answer, which is supposed to be separated as a test
question of property, and presents a case somewhat of this
kind: Richard Irvin & Co. having this firm of Clarke &
Co., resident merchants of Richmond as joint adventurers
with them in a business consisting of the purchase of tobacco
in Richmond, and its consignment to Liverpool, to a house
there representing Richard Irvin & Co., or being their cor
respondents for sale, were in the habit of supplying money
by which the purchases were effected in Richmond, and hav
ing the property consigned to their correspondents — the re
sults of the sales, the proceeds of the adventures being equally
divided in matter of profit between the Richmond and New

240 SPEECHES OF WILLIAM MAXWELL EVARTS

York firms — Irvin & Co. of course receiving back the amount
of their advances, and that which stood for profit being
equally shared. It does not appear at all, in any affirmative
and definite form, as I respectfully submit (my learned
friends will correct me if I am in error) that the matter of
reclamation, in case of loss, was otherwise than the ordinary
commercial relations of such transactions — to wit, that Ir
vin & Co., in case the proceeds of the tobacco failed to re
imburse their advances, would have their reclamation
against the Richmond purchasers who had been supplied
with their funds. If that were so, then, in the contempla
tion of a prize court, this tobacco was the property of the
Richmond merchants, and Irvin & Co. were mere advancers
having the lien of consignees on the property.

But, if the other view be taken, that they were joint owners
of the property — for there is nothing, it seems to me, to in
dicate any deposition of exclusive ownership on the part of
Richard Irvin & Co., — then the shares would be determin-
able in this way: The shares of the Richmond merchants
would present the clean case of enemy property, following
the fate of Caskie, and the shares of Richard Irvin & Co.
would fall within the predicament of property of our own
citizens, loyal and resident in a loyal part of the country,
but found implicated in the trade of the enemy, and, as we
say, good prize, by the law of prize, as being thus impli
cated. And the condemnation proceeded on those grounds.

Now, my learned friend, in his argument, laid down a
proposition that a distinction was to be taken in condemna
tion of property of our own citizens involved in trade with a
recognized enemy, whether the property had been purchased
by our citizens before the war broke out or not. I ask your
Honors to do me the favor to take a citation under the 3rd
Point, on the 16th page of my brief. It is the case of the
St. Lawrence, 1st Gallison, 470. "Property purchased
before the war equally excluded from trade, and equally

THE PRIZE CASES 241

open to condemnation as if it had been purchased after
wards."

These questions are, of course, important and interesting
just so far as the amount of property involved and the rights
of private parties are concerned; and under the authorities
to which your Honors have been referred by my learned
friends, and the references which I have made, it is but a
question of the ordinary prize jurisprudence to determine
whether the predicament in which the share or interest of
Irvin & Co., if they had any share or interest, is found the
subject of a condemnation.

There is another claim here, which is represented by our
friend Mr. Edwards — the case of Ludlam & Watson, who
had some interest, joined with Lear & Son in that parcel or
invoice on board ship. Lear & Son's interest, whatever it
was, was acquitted, but they have appealed because it was
acquitted with a charge of costs upon them if they did not
make further proof. That is to say, they were allowed to
make further proof. If they accepted that favor of the
Court and made their case clear, the adjudication would
have been with costs or without costs, according to the
merits of the controversy thus made clear. The Court
said, "I do not acquit you on the evidence. If you make it
plain that you are entitled to restitution, why, of course, the
costs go, but if you rest here without undertaking to make it
plainer, I say that costs shall be charged against you be
cause of the obscurity and uncertain situation of the prop
erty." Now, that was in the discretion of the prize court,
and so far as Lear & Son are concerned, the appeal is only
on that question of costs. They did not take the alternative
of making their case clear by further proof, and they appeal
from the sentence on that question of costs. I submit that
this appeal cannot be sustained.

Ludlam & Watson have an interest in the same invoice of
tobacco, which is of very moderate amount; and their re-
is

SPEECHES OF WILLIAM MAXWELL EVARTS

lations are of this kind : Ludlam & Watson were a Richmond
firm of merchants. Watson was a citizen of Virginia and a
resident there, in the rebellious region. Ludlam, the partner
of the commercial house domiciliated at Richmond was a
resident of Rhode Island, thus living in a loyal State.
The shares of partners being, on the later decisions, to be
discriminated on a question of condemnation, Ludlam &
Watson stand, for aught I see, in regard to this parcel, in the
same relative position as Irvin & Co. and Clarke & Co. do to
the present parcel in which they are interested, provided
they are joint adventurers, and the whole property is not in
Clarke & Co.

I believe, if the Court please, that this is all I need to say
specially on the circumstances of this case.

If I be correct in the limit of the duty, the jurisdiction,
and the jurisprudence of the prize court, the considerations,
other than those that I have stated, would be limited to
an inquiry as to whether the political authorities of this
Government had indicated in such a manner as that the
prize court must obey those indications, that this was not
a municipal seizure but was an assertion of the jus belli.
As, however, the assent of the Court to that proposition is
not to be assumed, I am obliged to consider the more general
propositions that this Government, under the law of nations,
and in the situation in which it was placed, had a right to
have recourse to the jus belli, as well as that it did, in fact,
have such recourse. And as the separate treatment of these
two questions — whether the Government did, in fact, have
such recourse, and whether it had a right to have such re
course — requires an attention, in great part, to the same pub
lic facts and the same public documents and laws I shall not
attempt to separate them otherwise than in this statement.

Now I have stated, sufficiently for all the purposes of my
second proposition, the situation of this rebellion toward the
Government of the United States. The Civil War had al-

THE PRIZE CASES 243

ready carried into complete revolt whole states, had organ
ized the form of a separate and independent government
which was conducting open military hostilities, with all
the outward circumstances of public war. I shall not need,
in my argument, to rely at all on the civil, political, govern
mental transactions of the rebellious population in the re
bellious region, in any other sense or for any other purpose
than to show the dimensions, the proportions, the connections
of the war-making power against the United States. To the
argument of our learned friends that there is not the least
touch or quality of legality under the Constitution of the
United States in what they have done, we, of course, accede
as, on the primary reason of all things, must appear. But
they have a power that is engaged in war, and besides its
array in arms, it has the combination of policy and council;
for, as Grotius says, "war has its concilium as well as its
praelium." And this organization, whatever you call it,
is of the whole people of the whole region, of all its connec
tions ad exteros, of all its communications of civilized society
within itself, making up — for the purposes of this argument
as for the purpose of various of these citations — an ag
gregated power. Well, the national Government met this
war with its whole military power, land and naval, to defend
itself from overthrow, to preserve the integrity of its do
main and to reduce their power of war.

Vattel says that "war is the state in which a nation pros
ecutes its right by force." The essential idea of war, not in
any fancy or far-fetched analogy, but in the very nature of
its destruction of peace and order, is common to nations
and common to individuals. It is the predominance, while
it lasts, of force and of nothing but force; and the only laws
that are imported into it are the laws that regulate or limit
its force. Now, Grotius says very distinctly on this question
of war that "there are but two things to be considered by
those who are about to treat of the rights or the laws of war.

244 SPEECHES OF WILLIAM MAXWELL EVARTS

First, it must be seen what the war is, which forms the sub
ject of the inquiry; second, what the law or right to the jus
of war is, which is the object of the inquiry. Cicero has
said that war is a contest by force, bellum decertandi per vim;
but the use has obtained that not the action of war, but the
status, should be called by the name of war." So that war
is the state of things continuing by force — belli status per
vim. There is not a touch of law about it. It is a pure
question of fact, when two independent authorities, who can
be made so by the action of war or by the action of hostile
force on one side and the other, have a status, and distinc
tion from a simple battle, then they are considered in war.

"These generalities," Grotius proceeds, "include all
kinds of war, concerning which hereafter we shall treat; nor
indeed do I here exclude private war, as because in itself it
is prior to public war, and without doubt has a common
nature with public war, which on that account leads to the
application of the same term of war to both."

He says again, in his third chapter, "The first and most
necessary division of war is, that one war is private, another
public and another mixed. Public war is that which is
waged under the authority of one who has jurisdiction;
private, that which is waged otherwise; mixed, that which
on one side is public and on the other private."

This applies to the situation in which this country is
found, the definitive description of mixed war, waged on one
side by the party having supreme authority or sovereignty,
and on the other side by private persons — for I do not at
tempt, as I certainly do not find it in the least necessary, to
impute any other authority to this immense combination of
rebel citizens of the United States than such as is produced
by the tie of the common policy and common force as used
in war.

Then, of the lawfulness of private war he treats on the
ground that, by the law of nature, in self-defence it is cer
tainly admissible. Now, let us see what public war is.

THE PRIZE CASES 245

"Public war is of two kinds, that which is solemn under the
law of nations, and that which is unsolemn, or less solemn.
That war shall be solemn public war by the law of nations,
two things are required ; first, that it shall be waged on each
side by public authorities which have the supreme power in
the State, and, second, that all the rites and ceremonies of its
declaration shall be present — of which we shall treat.
These two things together are required to make a solemn
public war, so that one without the other, is not sufficient."
No solemn public war, within this definition of Grotius,
could exist, however powerful and independent the respective
belligerents were as sovereigns, if it had lacked the forms of
ceremonious declaration. "But less solemn war" he con
tinues, "or unsolemn war can exist, and be without these
rites, and be waged against private persons, and have for
its authority any magistrate."

So that the distinction which our learned friends have
been so much disposed to insist upon, that public war, which
brought the consequences and the secondary laws, as they
call them, of war, cannot be attributed to the situation in
which this nation is found, has certainly no support in the
more authentic repositories of the rules and distinctions on
this subject.

Grotius then in his 4th chapter says — and I ask your
Honors' attention to it, as it forms a staple part of the argu
ment of the rights of a nation in self-defence :

"Wars can be waged both by private persons against
private persons, as by the traveller against the robber, and
by those having the supreme authority against those who
also have supreme authority, as by David against the King
of the Ammonites, and by private persons against those who
have the supreme authority, but not over them" (that is,
by private persons not against the parent government, but
by private persons against a foreign government), "as by
Abraham against the King of Babylon and his neighbors,

246 SPEECHES OP WILLIAM MAXWELL EVARTS

and by those who have the supreme authority, against pri
vate persons, other than subjects, as by David against the
adherents of Ish-bosheth; or not their subjects, as by the
Romans against the pirates."

Now, we may talk about war as much as we please, and
about what the conditions are, on which a war is perfect,
imperfect, solemn or unsolemn, and about the distinction
between war inter gentes, and war by the sovereign
authority against rebellion, and war between private parties,
and against pirates, there is one thing which is common to
them all, there is one thing which makes a discrimination
between war and peace — and that is, its force. And from
the instance of the traveller against the robber, up to the
mightiest powers that have divided the earth's surface
between them, it is war as and when it is force, and in so far
as it is force. But when the subject comes up to be dealt
with in the law of nations and before its tribunals it must
have, not the mere quality of force, but it must have the
supersession of all peaceful authority and control, and must
occupy, in its dimensions and proportions, in its means and
methods, in its armaments and forces, the character of war,
as distinguished from private strife. And there is no other
distinction than that. You may find difficulty in drawing it,
although, I think, in the world's affairs nothing has been cer
tain if it has not been certain when there has been war and
when there has been peace. Theoretically you must sug
gest differences, but there is no other rule of discrimination
except the inspection of the facts themselves. When the
peaceful authority of a government is overthrown there may
be submission on the part of the public authority, or there
may be a contest for its recovery, or a contest for the legit
imacy of its overthrow. And that is the situation of our
affairs, for the peaceful authority of this Government was
overthrown in fact on every road of the rebel territory and
in respect of every resident within it. The rebel contest,

THE PRIZE CASES 247

therefore, was to legitimatize that overthrow and to obtain
a sovereignty that had peaceful authority there. That
would have brought peace. The contest on our part is to
suppress the rebellion and restore the legitimate authority
of the parent Government over the rebellious region, as to
its territory, over the rebellious citizens, over all the citi
zens — for it is equally driven out from rebels and from loyal
men — and that contest is not under municipal law, nor in the
nature of things can it be. It is war, and nothing but war.

Now, this war, as I have said, was between the Govern
ment of the United States on the one side, and the people,
whether communities united or dispersed, who were in the
rebellious revolt, on the other side. Our learned friends say
that it was not between the United States and any State
Government, to which I agree. There is not any posture
in which the State Government could be recognized (as a
civil and political body under the Constitution of the United
States) as at war with the United States. We are at war
against the total power of war that is moved against us.
But yet, owing to the divisions of the people into the States
forming a part of the United States, apparently constituted
as a part of its political arrangement, and of its political
power, it has the form and appearance of a public war on the
side of the rebellion as well as on our side.

This brings me, perhaps, to the distinction which I have
indicated to your Honors, as lying at the bottom of the argu
ment on the part of our learned brothers, between personal
and territorial war. Now, treason is the crime of those who
commit it. Unquestionably they are the enemies of the
Government. They are subject, for their personal guilt, to
the penalties of criminal law. Whenever our Government
has authority, when its laws have their course and play,
then the guilt of these persons is to be, at the will of the
Government, a matter of judicial inquiry; and then, against
them, as persons, no procedure of any kind can be had ex-

248 SPEECHES OF WILLIAM MAXWELL EVARTS

cept by the authority of the Constitution, according to its
guarantees, in its constitutional tribunals, before judge and
jury. We have no controversy on that point. I do not
know any manner in which this Government has a right to
proceed personally against individuals at the South in re
spect of crime, or for treason, or for treasonous war, except
under the Constitution, by indictment, by trial before a
jury, by conviction, by sentence, by execution. The num
ber of those criminals makes no difference in our rights to
wards them, under the peaceful authority of the Govern
ment, under municipal law. But the trouble about the
matter is that this very authority of law over traitors, and
for the punishment of treason, is overthrown with all the
other authority of the Government. If our law of treason
had force and efficacy there, why, our other laws would have
force and efficacy too.

If your Honors, in your respective circuits that fall within
the geographic limits of the rebellion, could sit and try men
for treason, it is likely you would be allowed to sit there and
try causes between man and man. That is not the favorite
exception which they would like to make in obeying the
jurisdiction of the Federal Court. The moment you get to
the possession of their persons and can punish them as
criminals, that moment the war is over, and the tribunals
have their place and their power. At the outbreak of a
treasonous war, when it has agitated itself into the inflam
mation which, by our Constitution is necessary to make it
treason — the levying of war against the Government of the
United States, — you may, when it has reached that point,
pursue it without war. To that I agree. You may send
your marshal and enough deputies to capture the whole war.
That is, constitutionally, sufficient to involve men in treason.
You may call upon all the power of the district, if necessary,
and it may amount to a hundred thousand men. That may
be sufficient to suppress the treason, and seize the traitors.

THE PRIZE CASES 249

The court can be, all the while, sitting; and all can be done
with a marshal and posse comitatus. That is all very in
telligible. But, supposing that the traitors and the trait
orous war will not preserve that straitened and feeble condi
tion in which municipal law and the peaceful administration
of Government has its exercise over them — suppose they
change it from a personal war into a popular war or the war
of all the people that inhabit the State, or into a territorial
war or the war of the entire region which constitutes the
country in which they live, are we to be told that, they
having turned it into popular war of a people and into ter
ritorial war or the war of a territory, against us, we must
preserve still the notion that it is a personal war on our part,
and that we have no efficacious and legal penetration through
the barriers of territorial defences in the pursuit of individual
traitors, by the power of the Government? Where do my
learned friends find a right on the part of the Government to
escape from the bonds of municipal authority and municipal
obedience on their part and to follow the personal treason
ous enemies of the country by war? I do not know where
it is to be found. I do find a power to suppress a rebellion.
I find a power to use the army and navy, and the whole
militia of the United States, that is, to use all the forces
and powers of war that the country possesses. Is there
anything left out? Is there anything which belongs to the
war powers of the Government except its army, its navy, and
its entire arms-bearing population? Certainly not. I find
the power to use that to suppress the rebellion; but I do
not find an injunction that it shall be used in a way that will
not suppress it and cannot suppress it. I do not find any
limitation. I do not find that, when you have got the army
and the navy, and the entire arms-bearing population of the
country, the Government is so trammeled that it can only
proceed to hunt up traitors and bring them in for trial. I
do not find that, when the war, in the name of rebellion,

250 SPEECHES OF WILLIAM MAXWELL EVARTS

urged against the Government, is of that extent that it is of
a people, and of their territory, and of their trade, the
Government cannot return the war on that people, on their
territory and on their trade. I do not find that the function
of war is, in the least, to catch and arrest traitors. It is to
introduce peace through war. It is that the Constitution
and the laws of the country may prevail again, and so trait
ors may personally be seized and punished. But the propo
sition that we are all, in time of war, executing the powers of
peace,— while, if the powers of peace could be executed,
there would not be either any justification or any existence
of war — is confounding the necessary distinctions. War
gives us no hope or promise, however it arises, except that
it will restore peace. When it is waged, when it is master of
the theatre on which it is played, peace and peaceful powers
are wholly driven out; and only in the train of successful
and triumphant war, or of unsuccessful and defeated and
submissive war, does peace ever return. Peace, in and of
its powers, of its faculties, of its duties, never will bear
sway over any portion of this territory or this people that
has raised itself in war against the Government, except so
far as the power of our war shall have rescued territory and
people from the power of their war, and restored them to
the Constitution and the laws, and the jurisdiction and the
protection of this country — or just so far as their war is
successful, predominant, triumphant, subversive of our
power and our Government, shall arise a new municipal
authority which, in peace, shall execute new laws.

The charge of his Honor Judge Nelson has been referred
to on the printed briefs, and, I think, also adverted to in the
oral arguments, as being supposed to give some counte
nance to, or to sustain some inference favorable to, this dis
tinction between personal and territorial war, which, as I
have submitted to the Court, must be determined by the
question of personal or territorial facts, I am unable to

THE PRIZE CASES 251

find in the charge of his Honor, the Judge, to the Grand
Jury in his circuit, anything that can support this view, in
any application to the subjects of discussion in the Prize
Court, and now before this tribunal. In the first place,
your Honors see that the very attitude of the learned Judge,
in addressing a charge to a Grand Jury which has inquisition
of personal crimes, must almost necessarily — must most
suitably and therefore necessarily — have been limited to
considerations that had to do with personal guilt; and the
aspect in which his Honor presented the subject to the jury
had not the least connection with this matter of whether
war can be waged against a people and against a territory
that were incorporated in the adverse war, but was wholly
as to the municipal legislation in force, and under which sub
jects could be brought before grand juries for indictment and
trial for personal crimes. After presenting the subject of
treason under two branches of the clause in the Constitu
tion, that of levying war and of adhering to the enemy, his
Honor presents this consideration — and at the very outset
the Court will perceive that the learned Judge rejects, in
the very phrase of his address, all these distinctions.

"The unhappy condition of our country arising out of the
unnatural struggle of the people of a portion of the Union
to overthrow their Government."

Not a portion of the people of the Union, not of individual
and personal hostilities to the Government, but "the un
natural struggle of the people of a portion of the Union to
overthrow their Government." Now, this at once recog
nizes and rests upon the fact that "the unhappy condition
of our country," no matter how it originated, in treasonous
resistance and repugnance to the Government, has come to
be a struggle of the people in their aggregate sense, of a
territorial portion of the citizens of the United States, for
the overthrow of their Government. It is not, in fact, of
the least moment in the estimate, if hostilities arise, what the

SPEECHES OF WILLIAM MAXWELL EVARTS

original designs or what the actual motives were which have
grouped together the combatants. Whenever an entire
people, in their several means and measures of power, are
wrought into a unit of hostility, and so thrust and wielded
and urged against the Government, then the Government
must oppose it, as a unit of hostility, so thrust, and wielded,
and urged, or it falls into the folly of using inappropriate
and inadequate means of suppressing a rebellion which would
be worse than submission.

Then the tenor of the learned Judge's reasoning — in the
course of which, passages taken from it are pressed into the
service of our learned adversaries — is this: In estimating
what the offence of giving aid and comfort to the enemy is,
and when it can arise (always a personal offence, triable and
punishable by law) he starts with the proposition that the
maintenance of mere personal intercourse, by correspond
ence or otherwise, between the citizens of our loyal region
and the citizens or residents of the territory in revolt, is not
a common-law offence under the Constitution of the United
States, and then shows what the rule of the law of nations
is — which is stated to be that "war interrupts the commerce
of the hostile nations, the intercourse of every citizen with
the other," but that in a civil war there is no such necessary
interruption of mere intercourse between loyal citizens of
one region and loyal citizens of the other, and that, under
the law of nations, there is no personal guilt attributable to
the maintenance of intercourse between the citizens of one
nation and the citizens of the other, but that the penalty of
the confiscation, capture, and condemnation of the property
involved is all that happens, so that no personal crime arises
even there. By the common law of England it is a misde
meanor to hold intercourse with the enemy; but his Honor
had rejected the common law, in the statement that in fed
eral jursidiction there is no common law. Then the point
was, how far is there an interdiction of communication as

THE PRIZE CASES 253

matter of statutory prohibition, and what penalties are an
nexed to it; and the act of 1861 is appealed to as the measure
and extent of the prohibition by the Government of mere
intercourse harmless and innocent, that is not hostile in in
tent to the Government, which would be otherwise permit
ted. Then the learned Judge says that under that act the
only penalties introduced, the only consequences of infrac
tion, are the confiscation of the property or the vehicle thus
involved, and that no personal crime is impu table to mere
intercourse between loyal people with loyal people, against
the mere form and effect of that act. But then the learned
Judge warns the Grand Jury, as representing the criminal
inspection and inquisition of the community, that if the
people on this side of the line of hostilities hold communica
tion, commercial or otherwise, with the community on the
other side, with the view and intention of giving information,
supplies, assistance, in any form, to the rebellion and its
purposes, they place themselves in the condition, not of
penalty under the act of 1861, but of penalty under the
general criminal statutes punishing treason or connection
with treason.

Now, I put it to the Court, and I think consonant with the
sense of the learned Judge who delivered the charge, that
there is no authority to be derived therefrom in support of
the sentiment that we are reduced to personal war which
would be wholly ineffectual, and cannot resort to territorial
war, which would be and must be the only means of success
against the rebellion.

The 4th proposition attributes to the state of war, thus
existing, and between the parties to it thus described, all
the powers of public war, including the right of blockade,
and including the right of maritime capture, as enemy prop
erty; and I shall not think it necessary to ask your Honors'
attention to the authorities collated under that point.
By reference either to well-recognized general principles or

254 SPEECHES OF WILLIAM MAXWELL EVARTS

to leading cases, your Honors' attention has been sufficiently
drawn to this, I believe, indisputable fact, on authority,
that whenever the actual condition of a nation prosecuting
its right by force against another nation or against a rebel
lion, exists in fact, the public law of the world insists upon it
that the laws of war shall intervene, shall regulate, shall
moderate, shall assuage mere violence of force; and that the
method and the only method by which, in the application to
public, international war, these ameliorations have been in
troduced and have been submitted to, in the interest, and
by the right and power of the belligerents, is, that the laws
of war, in their secondary coercion on the trade and on the
status of the warring populations, give efficacy to the power
of war, while they rob it of its violence, and of its cruelty,
and of its carnage. So, in civil war, where there is much
greater reason for the intervention of its humane influences,
we see it, with equal impartiality, introduce its secondary,
coercive, powerful rights of repression on the rebellious
region and people, as if it were a community subject to,
and sensible of, the impressions which the power of war in
these terms makes.

SECOND DAY

I had reached, if the Court please, a consideration de
pendent upon, and forming a part of, the more general
propositions which I had the honor of submitting to your
attention, and which had brought me to the 5th proposi
tion on the 26th page of my brief: That war is essentially,
and as much as anything in human affairs, a question of
actualities, is apparent to our reason and is obvious on
the pages of history. War comes of itself, unwelcome gen
erally, unbidden frequently, introduced by no preparation
of law and no solemn warning. If this be so, it is appar
ent that whatever solemnities are wanting, and whatever
chains, or obstructions, or control the interior structure of

PRIZE CASES 255

a government seeks to interpose, or does interpose, to its
rash or capricious introduction, nevertheless if war appears,
wanting any solemnities, and against and over all these
checks and obstructions, when it is present, when it main
tains position, when peace is driven out, when the laws are
silent — whether they ought to be silent or not — war rules,
and gives its own laws.

Now, the rules and laws of war have no respect whatever
for the methods, the purposes, the protection, the discrimi
nations, the happiness, the prosperity, of peace. All these
delightful and necessary qualifications of human affairs are
included in the word "peace," and they have withdrawn
with it, and are to be restored only in the train of peace.
And the methods of war, and the laws of war, have no other
purpose and no other rationale than, by suppressing and
destroying the opposing war, which is the impediment to
peace, to restore peace. But it wastes, in civil and disor
ganizing efforts to maintain peace during war, none of its
energies which are applied to the complete restoration of
peace. A peaceful war will bring back no peace, but one full
of the elements and future threats of war. The means are
abundant to secure the end, which never can be secured
except by the observance of the means. My learned friend,
Mr. Lord, in his discussion of this subject how war may orig
inate and be in possession of the situation, was satisfied to
hold and declare that even in respect of a foreign nation and
the introduction of international war, the force of the Con
stitution, which entrusts to Congress the duty and the power
of declaring war, makes it necessary that war, waged against
us, ad exteros, war denounced or declared against us, ad
exteros, did not put this nation at war, in the sense that the
status of its people was changed from their peaceful relations
abroad and their peaceful relations at home. He rested, or
arrived necessarily, if not in his own reasoning, yet in the
course to which he tended, at this: that, in that situation

256 SPEECHES OF WILLIAM MAXWELL EVARTS

between two nations one may be at war with the other, and
the other at peace with the first; that the moment of the
incipient hostility had changed all the attitude and relations
of the subjects of that power by the initiation; but that the
subjects of the other power, in their relations among them
selves, and towards the enemy, were left unchanged until
their own nation intervened. Such a proposition finds as
little support in the authorities as it does in the necessary
reason of the matter. Our wars have always been in the
form, so far as Congress has intervened, of recognition of the
situation of war as existing. The preamble to the Mexican
War Act is familiar to us. The act — there being no pre
amble — of the war of 1812 is in the same sense and to the
same effect. It does not take the form of denouncing war
against England, which is the sense in which "declaring war"
is used by the publicists and in the Constitution — denunciare
bellum, to declare and denounce war, as the affirmative action
of the Government so entering on its prosecution. But it
declares an existing war, using the phrase in the sense of
ascertainment, promulgation, publication.

But does not a unilateral declaration of war, which is the
phrase of the publicists, put the other nation at war? I ask
your Honors to note, on the margin of page 27, a reference
to the case of the Eliza Ann, 1st Dodson, 247, — a case which
is on the brief of my learned opponents, but not in this con
nection. Sir Wm. Scott says:

"War may exist without a declaration on either side. It
is so laid down by the best writers on the law of nations. A
declaration of war by one country only is not a mere chal
lenge to be accepted or refused at pleasure by the other. It
proves the existence of actual hostilities on one side at least,
and puts the other party also into a state of war, though he
may, perhaps, think proper to act on the defensive only."

There is no such thing between nations as one at war with
the other and the second at peace with the first. And on

THE PRIZE CASES 257

this very matter of adverse hostility commenced, or war
denounced, changing the situation of the subjects of the
other power, without the least intervention of their Govern
ment, and from the date and fact of the adverse hostilities,
without even its communication to the second power, I ask
your Honors' attention to the case of Oom against Bruce, 12
East. 225. This was an action to recover back a premium of
insurance; and the question was whether a state of war
existed at the time the insurance was effected, so as to render
the policy void. The case was in a British court, between
two British subjects. Hostilities had been commenced by
Russia against England the day before the insurance was
effected, but it was not known to either party at the time.
For the defendant it was insisted that nothing which was
done by Russia, even if it had been known here, would have
bound British subjects, until the state of war had been known
and recognized by their government. Lord Ellenborough
says:

"The commencement of hostilities by Russia against this
country placed the two countries in a state of hostilities and
made the subjects of Russia enemies to the country at the
time when this insurance was effected. Formal declarations
of war only make the state of war more notorious, but,
though more convenient in that respect, are not necessary
to constitute such a state."

Now, no distinction can be drawn in the application of
such a case as this, from any diversity between the British
Constitution and our own. The British Constitution attrib
utes the power of denouncing war to the Crown, ours to the
Congress. But the Crown of England had as little declared,
as little accepted, as little known of, acquiesced in, or made
the nation a party to, the state of war introduced by the
Russian hostilities, as if it had been attributed to Parliament,
as it is with us to Congress.

I have said to the Court that international law, and munic-
10

258 SPEECHES OF WILLIAM MAXWELL EVARTS

ipal law, as it retires before the law of war, contemplate
alike no divided empire of war and peace. When war has
begun, peace is ended; when war is ended, and not till then,
peace is restored. The maxim, silent leges inter arma, is not
so much a sentiment or a principle as it is a fact. Not that
the laws ought to be silent, not that the laws wish to be
silent, but that law speaks, when it speaks at all, with a
potential voice, not of persuasion, not of entreaty, but of
command; and when its command is taken from it, its voice
is silent till its command is restored. When the execution
of the laws is sought to be put in operation under the peaceful
power of government and by municipal authority, and it
finds the culprit against whom its writ is to be executed,
hedged in by armed defenders in the array of war, the minis
terial municipal officer reports that the process cannot be
served by reason of this warlike protection and defence to
the culprit. The Court, then, is silenced for the future; and
thereupon the appeal is to the Government that peaceful
administration cannot execute the laws. No feeble, no
querulous, no undignified attempts to skulk, and penetrate
by stealth and fraud those lines of war, are attempted; but
the Government is advised that when the power of war con
fronts municipal authority, municipal authority is over
thrown, and .that there is neither faculty nor strength to
restore it but by some mode and power commensurate with
that opposed to it. And that might, and that strength, what
ever you may call it, is superior force. Pursuing no laws
but the laws of force and strength; and that is war.

The record of the Hebrew Commonwealth furnishes an
instructive illustration of this necessity — that peace and war
shall not exist together. The war declaration of the Hebrew
was: "Beat your plowshares into swords and your pruning
hooks into spears," and — the war ended — the authoritative
announcement of peace was: "Beat your swords into plough
shares and your spears into pruning hooks." These imple-

THE PRIZE CASES 259

ments of war and peace are so little needed at the same time
that the same materials may serve the nation's turn for
either state.

The case of Elphinstone vs. Bedoochet, which is on my
brief, in 1st Knapp's Privy Council cases, illustrates, by an
actual decision of the Privy Council of Great Britain, the
proposition of Lord Coke's familiar statement and of Dr.
Phillmore's announcement as a principle of the law of nations,
that either war or peace is the condition in which a nation is;
and the law, international or municipal, contemplates no
transitional or intermediate state. Whenever, therefore, an
offence, whether it arises for criminal punishment or for civil
redress, is brought to the cognizance of a court, and the
situation discloses a controversy of whether it was peace or
war, the municipal court looks at that question and, if it be
war, leaves the crime and leaves the personal or civil injury
to be disposed of by the law and the tribunals of war, or
recurs to the justice or favor of Government. It never un
dertakes to say, there being war, "we will treat of this crime
or of this injury according as we think the war motives right
or the war motives criminal." Not in the least. If it be
peace, then it proceeds against the accused, or in the main
tenance of the civil rights according to municipal law, and
treats it according to the full measure of right and of obli
gation under municipal law.

Now, this case was an action of trover brought against
Lord Elphinstone and one of his principal military officers
by an East Indian claimant, for about thirty-six million
rupees. The court in India gave judgment for the plaintiff
for 1,700,000 rupees, making the distinction in the amount of
damages accorded between that part of the property of the
plaintiff seized by the public military officers who were sued,
which was his private property, and that which was the
property of the East India Government, which formed part
of the capture. The statement of the case in its circum-

260 SPEECHES OF WILLIAM MAXWELL EVARTS

stances is somewhat prolix and full of detail; but the note
sufficiently discloses its main features:

"The members of the provisional Government of a re
cently conquered country seized the property of a native of
the conquered country, who had been refused the benefit of
articles of capitulation of a fortress of which he was Governor,
but who had been permitted to reside, under military sur
veillance, in his own house hi the city, in which the seizure
was made, and which was at a distance from the scene of
actual hostilities. Held: That the seizure must be regarded
in the light of a hostile seizure, and that a municipal court
has no jurisdiction of the subject."

Very learned arguments at great length were presented on
the one side and on the other by the leaders of the British
bar; and thus briefly is the case disposed of in the Privy
Council, Lord Tenterden giving its opinion.

"We think the proper character of the transaction was
that of hostile seizure, if not flagrante, yet, nondam cessante
bello, regard being had both to the time, the place, and the
person ; and consequently that the municipal courts have no
jurisdiction to adjudicate on the subject, but that, if any
thing was done amiss, recourse can only be had to the govern
ment for redress. We shall therefore recommend it to His
Majesty to reverse the judgment."

Now, thus determinately and simply, on no general reason
ing or unsupported theory, does a respectable judicature
deal with this question of peace or war. Lord Stowell says,
that Russian hostilities, commenced the day before this
policy of insurance was issued, made a state of war, and
thereafter, all the laws of private personal relations fell under
the law of war. So the Privy Council, by Lord Tenterden,
says: "nondam cessante bello this act was done; we have no
connection with it, for peace is not restored till war is over,
and the sovereign, not the court, must deal in this transaction
for the redress of any grievances inflicted, the restitution of
any rights infringed."

THE PRIZE CASES 261

Martial law, if the Court please, which has formed a sub
ject of judicial, public, and political discussion in the coun
try, growing out of the condition of affairs, has also formed a
subject of discussion by publicists. It is a local and limited
application of the law of war, sometimes in your own country
— and, by that, I mean the country which is loyal and faith
ful and supports the Government — sometimes in the enemy's
country; and under very peculiar circumstances, an intru
sion into the neutral territory may occur, overruling the
law of nations, which does not respect lines of neutrality.
Now, all this subject of martial law, — most useful for the
preservation of the law of peace, of the municipal authority,
and for the protection of the general rights of citizens under
the Constitution — all this rule, all this law, and all this
nature of martial law, its rightful and authoritative existence,
its limit in space and in time, all turn upon this doctrine of
the actualities of facts which determine war or peace and
determine martial law or municipal law. General Halleck,
in his treatise, says:

"What is called a declaration of martial law, in one's own
country, is the mere announcement of a fact. It does not,
and cannot, create that fact. The exigencies which, in any
particular place, justify the taking of human life without the
interposition of the civil tribunals, and without authority of
the civil law, may justify the suspension of the powers of
such tribunals, and the substitution of martial law. The
law of war, or at least many of its rules, are merely the result
of a paramount necessity."

And General Cushing, in his opinions, to be found in
volume 8 of the Attorney General's opinions, has this reason
ing, which presents the matter very plainly:

"There may undoubtedly be, and have been, exigencies of
necessity capable, of themselves, to produce and therefore
to justify such suspension of all law and invoking, for the
time, the omnipotence of military power, but such necessity

262 SPEECHES OP WILLIAM MAXWELL EVARTS

is not in the range of mere local questions. When martial
law is proclaimed under circumstances of assumed necessity,
the proclamation must be regarded as the statement of an
existing fact rather than the legal creation of that fact. In a
beleagured city, for instance, the state of siege lawfully exists
because the city is beleagured, and the proclamation of
martial law in such case is but notice."

Now, what martial law is, in its limited sphere and its
temporary maintenance, that is martial fact. War, in its
larger feature and its more extensive relation, is fact, made
fact sometimes by the voluntary, purposed, and premeditated
activity of a nation through its forms of law; made fact fre
quently against such purpose, certainly against such avowed
purpose, but however made, it is limited by fact.

If the Court please, I have but a single further general
inference to ask your attention to, growing out of these pro
positions. And it is this: That, as the state of war arises
and exists as a matter of fact against a government, whether
it wills it or not, whether it has induced it or not, whether it
wishes that it shall continue and be prosecuted or not, the
powers and the duties of every government against which
such a war thus arises, to oppose, overwhelm, and subdue
the war, whether it be foreign or whether it be domestic, are
themselves facts having their strength and their dimensions
altogether measured by the power, the efforts, and the pur
poses of the war that is moved against the government and
the nation. You cannot codify a war that is to be prosecuted
against you. It recognizes no measure but the strength and
the purpose of the hostile nation that comes into the conflict.
And you cannot advance, in any municipal system or in any
constitutional structure of a nation, any such constraint, any
such impediment, any such feebleness in its power to oppose
war as makes it necessarily the victim of a surrender when
power shall be moved against it in the form of war, outside
of the limits or beyond the strength that the nation is per-

THE PRIZE CASES 263

milled to use against it. No, just as truly, just as necessarily
as in the case of private war arising between two persons on
the right of self-defence, just so necessarily, just so truly,
when war arises between two independent powers, whether
they be independent political powers or howsoever otherwise
they come to be adverse warring powers, there is not any
measure to the right, nor any measure to the faculty of
either nation as against its enemy, but the strength, the
power, and the resources of the nation. Its right is to defend
itself by whatever means are necessary; and the means that
are necessary are to be governed, of course, by the author
ities of the nation, but are to be governed as reasons of state,
and of policy and of military prudence and military judg
ment. It will be found that all arguments that seek to
reduce or restrain the exercise of the power of a nation in war,
in which it is engaged either with or against its own will, and
any effort to reduce the power and authority of a government
that has been put to the necessity of exerting the powers of
war, to suppress a rebellion or insurrection or whatever you
call it — any interior disturbance that has escaped the bounds
of civil power and needs recourse to the warlike authority
of the nation — anything that tends to hamper, reduce either
in the measure of its strength or in the variety of its exercise
the authority or the duty of the Government to defend itself,
are contrary to the first reason of the law of self-preservation
and contrary to every proposition on, and justification of,
the cause of war.

The Government, in time of peace, protects itself natur
ally and easily. The Government, in time of war, can pro
tect itself, can sustain itself, only by the means of war. And,
as Sydney says in his Treatise of Government, "it is impious
to say that those who oppose the law and, by their strength
and power, are able to protect themselves from its peaceful
authority, are to be saved from the use of all the means which
the nation has, to overcome their resistance. Against such
all are just."

264 SPEECHES OF WILLIAM MAXWELL EVARTS

Now, the Court will perceive that there is nothing in the
idea that the powers of war are to be executed in order to
reduce a rebellion to the control of the civil authority, that
makes the powers of war, thus applied and tending to that
end, in the least an exercise of municipal authority or of
punishment towards any body or any thing. The punish
ments are to come, if at all, when the law that can authorize
and can support them is renewed. It would seem, therefore,
that if a war arose, before the statute of 1795 was passed or
before the statute of 1807 was passed, whoever properly
represented the authority of the nation to execute the powers
of peace and the powers of war — in distinction from enacting
them — to execute the laws by the means of peaceful author
ity or, by the means of war, to reduce under peaceful author
ity, — whatever power thus represented the nation must, in
emergencies and under necessity, be clothed with all author
ity which the nation could second and support by its strength.

But/ if the Court please, in the actual circumstances of
this case, under the Constitution of the United States and
under the existing legislation of Congress, there is no need
to resort to these general, though absolutely true propositions
of the law of self-defence. We are a nation that possesses, as
matter of fact, all the energies and all the material resources
which make up a powerful people, powerful in all the rela
tions of peaceful influences with other nations, powerful in
war; and we have a Government that is formed on no prin
ciple of feebleness or pointlessness in the arrangement of its
authorities, and in its being the head and leader and ruler of
so great a nation, formed wisely by those who constructed it,
on no theory that peace was always to prevail, although they
desired it. It is fully furnished with all the weapons at once,
and with all the shields, that belong to the conflicts of war.
And this was in full exercise, not only in the fundamental
law of the Constitution, but in all the subordinate legislation
which needed to proceed from the action of Congress, at the

THE PRIZE CASES

265

time this revolt broke out. There was nothing of limit either
in the Constitution or in the laws that had provided for an
emergency of a small insurrection, of a small rebellion, of a
small invasion; but there was, in the department of this
Government having political authority, a full measure of
strength and provision for an invasion that should at once
bring along the Canada line an army of 200,000 men, and
along the coast an invasive naval power of 500 ships of war.
So, too, for rebellion, if it should gain the awful front and
tremendous strength that this did before the war powers of
the Constitution, under the laws and by the authority of the
nation were to be levelled at it — so far as the authority of
law went, there was as great and adequate a provision for a
rebellion that should seek to maintain itself over half the
territory of the Union and should press into its service one-
third of its population. So, too, it was as well prepared, as
completely provided, against a rebellion that should have a
sea-coast of that extent and should seek to draw for its sup
plies and for its revenues on the commerce of the world.
Whether the Government had the physical force, had the
arms-bearing population, had the munitions of war, had the
armaments by land and by sea, that were adequate, were the
sole questions to be regarded by the political authorities of
this nation. They did not need to wait an hour. They did
not need to await support from any other department of the
Government. The judiciary was not to be consulted at all;
the Congress, although it was proper that it should be called
into the councils of the Government at as early a day as
possible, had yet not left anything deficient, or defective, in
the arm of the Executive which made it necessary that the
nation should be rent before Congress could be convened.

Now, our learned friends do not seem to dispute that there
was some power in this Government, that there was some
power to do something that was not, in the least, within the
range of peaceful authority or within the operation of muni-

266 SPEECHES OF WILLIAM MAXWELL EVARTS

cipal control; but they come to the point of division, that the
Government could do only certain things, that it could not
do this or could not do that. And yet there is nothing in
their discrimination between what the President could do
under existing Acts of Congress, could lawfully require, and
what he could not lawfully do and could not lawfully re
quire, except a discrimination as to what was necessary,
what was useful, what was proper, what was beneficial,
toward the end proposed. That single distinction which I
shall hereafter meet more distinctly, is : That although every
act of direct force and of immediate weight and pressure on
the rebellion could be pursued by the Government, yet any
thing that came into judgment, into sentence, into judicial
inquiry, could not derive its origin and its system of adjudi
cation from any acts of the Government without special
introduction and direction ad hoc of specific legislation of
Congress.

Now, I may not have much occasion to quarrel with that
as an abstract proposition, because I find nothing in the na
ture of the prize arrest and the prize adjudication and sen
tence which partakes, in the least, of the qualities of subse
quent, retributive, punitive justice. It is right that we
should see, not only what powers the Government had by
the very nature of its Constitution to defend itself, but also
understand how these powers were distributed, and no fault is
rightly found as to the exercise by the Federal Government
of what was rightly imposed upon it. I have collected under
my 7th proposition, a reference to the heads of the Constitu
tion touching both Congressional and Executive authority
in this matter of the legal power of the Government. Con
gress has power to declare war. And on this our learned
friends insist, as carrying the extensive consequences of non-
declaration of war by Congress that they have claimed.

Now, if your Honors please, will it be contended before
this Court, has it ever been made a matter of professional

THE PRIZE CASES

267

opinion or argument, that this clause giving to Congress
the right to declare war — that is, to denounce war — had the
least reference, in the sense of the framers of the Constitu
tion, or in the proper interpretation to be given to it, to a
state of rebellion or civil war? Is it true that this phrase of
the Constitution that has relation solely to the functions of
the Federal Government as a representative of the national
strength ad exteros and that puts in this branch of the Govern-,
ment the power to denounce or declare war, had reference to
giving to Congress the exclusive control of the question
whether rebellion or insurrection should be met by the power
of the Government? Certainly Congress may have control,
certainly Congress may have authority to this or that extent
over these internal insurrections or rebellions, however they
may arise. But no one, it seems to me, can say that under
the clause of the Constitution which says that Congress may
declare war, the power of the Government, or the duty of
the Government, or the resources of the Government for the
suppression of the rebellion, are to be derived. It is not the
will of Congress that is to determine whether rebellion shall
be a war which is to be frowned upon and suppressed. The
Constitution, by creating the nation, makes rebellion against
it a crime. Duty may be betrayed. The nation may be
surrendered, by Congress, by the President, but not in pur
suance of the Constitution.

The other warlike powers are, to raise and support armies,
provide and maintain an army, make rules for the govern
ment of the land and naval forces. And these, indeed, give
to the National Legislature the complete control of the levy
ing, the organizing, the preparation, of the national forces by
land and by sea. And, as has been made the matter of some
judicial interpretation, as it is of the necessary sense of the
clause, these powers to raise armies and navies gave, of
course, to the Federal Government, by its Executive or
Congress, authority to use the army and the navy in the

268 SPEECHES OF WILLIAM MAXWELL EVARTS

form of war, and in war, domestic or foreign, as the nature
of those material forces may indicate. Now, your Honors
will find that the next clause is the only clause of the Consti
tution that has specific relation to any power in Congress in
the very matter of domestic rebellion and insurrection.

" 14th. To provide for calling forth the militia to execute
the laws of the Union, suppress insurrection and repel

invasion."

Now, if we are to stick on the mere phrases of the Consti
tution as giving power either to the Executive or to Congress
in the matter of the suppression of the rebellion, your Honors
will perceive that there is here a distinct limitation of the
force and the authority of Congress in the matter of the sup
pression of rebellion or the repression of invasion — "provide
for calling forth the militia to execute the laws of the Union,
suppress insurrection and repel invasion." But it is not
necessary to say that such a construction overlooks the fact
that Congress and the National Government, by its very
constitution, had control of the national forces — the land and
naval forces of the Government — for all the purposes of en
forcing its authority; and this was simply a provision that
they should have equal control, in this emergency, of all the
arms-bearing population of the country, thus taking from
the States themselves their own organized militia whenever
the national power was necessary to be exercised either
towards a foreign nation or in domestic troubles.

Now, that exhausts, except the provision for organizing
the militia, when thus introduced into the service of the
Government, the specific war powers of Congress. How,
then, is the President made, under this Government, a head
or leader of its material strength, of the energies of its people,
and of all its warlike resources? Why, in the very constitu
tion of his office which says that the executive power of this
Government, all the executive power of this Government, all
that power which is execution in distinction from legislation,

THE PRIZE CASES 269

and judicial determination, all that there is of a Government
in its divisions, that does not go to legislation, that does
not go to judgments of courts — that is all in the President
of the United States. There cannot be more than that
lodged in any Chief Magistrate, whether he be called King
or Caesar, excepting that the Constitution, by its divisions,
of what it attributes to the legislative authority and what to
the courts of law, determines and limits, as may be, the
extent of Executive power. But, that the waging of war,
the conducting of war, whether it be foreign or domestic,
the suppression of rebellion, by executing the power of the
nation, is wholly in the President under the simple authority,
cannot be denied. Congress cannot carry on the war against
rebels or the war against foreign nations, and the courts of
justice do not intervene at all.

But again : the President, by the solemn induction into his
office, is charged with every duty, and has awarded to him
every power contained in the Constitution which is necessary
to the maintenance and obligation of his oath. His oath is,
that he will faithfully execute the office of President of the
United States, and will, to the best of his ability, preserve,
protect and defend the Constitution of the United States.
What is meant by the President's undertaking to the best of
his ability, to preserve, protect and defend the Constitution
of the United States? It is not the best fidelity to his per
sonal duty, or to the best of his personal powers, but that he,
to the best of his ability with which he is clothed by the
Constitution, to the best of his application and exercise of
the public authority with which the Constitution has clothed
him — and that public authority is the whole Executive power
of the nation. He is thus made, in form, Commander-in-
Chief of the Army and Navy and of the Militia, and is obliged
to see that the laws are faithfully executed.

Now, if the Court please, let us suppose a case. Suppose
that an insurrection or rebellion, of such magnitude that it

270 SPEECHES OF WILLIAM MAXWELL EVARTS

threatens the destruction of the republic, arises during the
recess of Congress, and before the legislation of 1795 and
1807 — is there any power to save the Government, it being
clear to human intelligence that it must be saved within
sixty days or destroyed? There is a great national army.
It has strength enough to suppress the rebellion. There is a
great navy. It has strength enough to cut off the resources
and supplies of the rebellion, without which it will wither and
die. There is a great arms-bearing population of loyal and
valiant men in the nation; and there is a President of the
United States and a Constitution, clothing him with these
powers. Shall the Government stand or fall? That is the
proposition. It is to stand, by salvation within sixty days;
or it is to fall, in the ruin to be completed within that time.
Is the wisdom, is the frame of this Government so established
that in silence, from respect to law, in reverence bowing
before the Constitution, the Government, the law, and the
Constitution are involved in a common ruin? Will any
lawyer say this? Will any Judge say this? Will any states
man say this? Will anybody say that, with this loyal army,
this loyal navy, this loyal arms-bearing population, this
faithful President who has sworn to use all his ability, this
strong Constitution that has made him commander of all
this army, this navy, this militia, and the head of all this
loyal population, the executive authorities of Government
must, in silence, see the ruin of the whole? Yet, that is the
proposition. Or if, post hac, a judge or a lawyer can decide
or argue that the President cannot do this and cannot do
that, and if "this" and "that" were all that could save the
country, then it would follow, from such argument or deci
sion, that the fabric is so built that it must be overthrown
on the happening of such a concurrence of circumstances as
I have named.

Now, this proposition may be met. It may be met in the
councils of the Government, It may be met in the recesses

THE PRIZE CASES 271

of the judicial determination. It may be met in the heart
and in the breast of every citizen — and there is no answer
but this: that whatever the strength of the nation can do is
lawful, is in subordination and in obedience to the Consti
tution, done under the authority of the President.

But supposing, if the Court please, that instead of Con
gress not being in session, a majority of its members are in
volved in the treasonable councils and are well-wishers to
the rebellion, — what then? Is Congress the sovereign of the
nation? Why, the whole theory of our political institutions
is, that the sovereignty is with the people; and of its sover
eignty there is withdrawn, in attribution to state or federal
authority, only that with which it has parted. We have no
king given us, the representative of our power, to whom
we are subject, and within whose power all ours is included.
No; this is our proposition of sovereignty. And if you do
not attribute to Congress or to the Executive the acts of
sovereignty which can save a nation when it needs to be
saved, then that nation has that act of sovereignty itself, —
for it must be saved, and, if it be a sovereign, must have a
right to be saved.

But, if the Court please, who will say that a rebellion that
includes a majority of Congress makes the rebellion the law
and the Constitution and the right, and that the President
and the power of the country, when it undertakes to main
tain the old Constitution, the united territory, the ancient
nationality, is revolution, and that Congress is the Consti
tution, and the permanent, and the pre-existing Govern
ment? That is the very nature of this government of the
people under the written Constitution. As the people are
not sovereign, so Congress is not sovereign. But the Con
stitution — that is the sovereign and its law — and whichever
part — the legislative or the executive — rebels against the
Constitution, is the rebel; and if it seeks the means of force
and of arms, it is at war. If the rebellion be made by the

272 SPEECHES OF WILLIAM MAXWELL EVARTS

President in office, it is a rebellion against the Constitution;
and if Congress be loyal and faithful, it assumes the powers
of Government and takes its measures to suppress it. So,
too, the President. And so, finally, the strength of the
nation under the lead of its constituted authorities, by its
flag, and in support of its Constitution, is not unfaithful and
is not revolutionary, whatever be the form of the rebellion
against it.

Now, the general legislation of Congress, exercising its
powers constitutionally had furnished an army and navy;
and there was in existence an organized militia when this
rebellion broke out. And there were also, on the statute
book, statutes of permanent application and wise prevision
which had undertaken to make lawful and formal, by the
concurrence of all the powers of the Government, the author
ity given by the Constitution, that should meet any such
case. And this brings me to the consideration of the act of
1795.

Now, if the Court please, lest it should seem that in the
more general propositions which I have had the honor and
thought it necessary to submit to the Court, I have trusted
to my own deductions or to my own views of the simple
reasons on which it all rests, I have asked the attention of the
Court, on my brief, to a few simple and conclusive sentences
from the authoritative pen of Hamilton :

"The circumstances which endanger the safety of nations
are infinite; and for this reason, no constitutional shackles
can wisely be imposed upon the power to which the care of
it is committed. This power ought to be co-extensive with
all the possible combinations of such circumstances; and
ought to be under the direction of the same councils which
are appointed to preside over the common defence. This is
one of those truths which, to a correct and unprejudiced
mind, carries its own evidence along with it; and may be
obscured, but cannot be made plainer, by argument or reason.

THE PRIZE CASES 27S

It rests upon axioms as simple as they are universal. The
means ought to be proportioned to the end; the persons
from whose agency any end is expected ought to possess the
means by which it is to be attained."

I have had occasion, if the Court please, to present no
more fundamental, no more general propositions than those,
which Hamilton has pronounced so plainly, that "argument
can only obscure them," and as simple as they are universal.

Now, the Act of 1795 does not undertake in the least to say
what strength or head of rebellion or of invasion or of domes
tic disturbance in a State shall exist before the authority of
the Government is to be exercised. As little does it undertake
to say how much power, or in what form, the Government
shall bring to bear on either invasion or rebellion. Nor has
it undertaken to draw any distinction between its purpose
and the public necessities which may require the application
of the powers of war in the one case of invasion, more than
in the other case of rebellion. The authoritative part of the
law provides that whenever the United States shall be in
vaded or be in imminent danger of invasion from any foreign
nation or Indian tribe — which is every form and every quar
ter in and from which invasion can be expected, in all human
probability — "it shall be lawful for the President of the
United States to call for such number of the militia of the
state or states most convenient to the place of danger or
scene of action as he may deem necessary to repel such in
vasion, and to issue his orders for that purpose to such officer
or officers of the militia as he shall think proper."

Now, if the Court please, when we take, in connection,
the statute of 1807, which has arrayed under the authority
of the President the whole power of the land and naval
forces proper of the United States, do we not see that the
case supposed by that statute for the exercise of the powers
given by it to the President is a case of war? — a case of war,
threatened or commenced from abroad, in the form of inva-

20

274 SPEECHES OF WILLIAM MAXWELL EVARTS

sion, and that the powers that are given to the President have
not the least quality of municipal authority? In other
words, is it not apparent that the case of war coming upon
the country, and the provision of war to meet it is the case
and the authority of that statute? Nor is there any limit
whatever. The country is to give all the militia, all the
navy, all the army; and the Executive is to use them as the
occasion of the conflict or of the danger may require.

So, too, in the next case:

"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, etc., to call such number
of the militia as he may judge sufficient."

This refers to the case of an insurrection against the
authority of a State, but, as is adjudicated and as is necessary,
an insurrection against a State which is entitled to the pro
tection, and forms a part of the frame of the general Govern
ment is an insurrection, in a secondary form, against the
authority of the Federal Government. Now, here all the
war power is given — the army, the navy, and the militia.
There is no limit. In the State of New York, with its
population of four millions and in its connections on the
lakes and on the sea, an insurrection might require not
only the theoretical power of war, so distinctly noted and
affirmed by the Chief Justice giving the opinion of the
court in the case arising in Rhode Island, but might re
quire the actual application, in its forms of blockade, in
its forms of all the oppression and suppression, of war be
fore it could be reduced. Is there anything in that statute
that limits the insurrection in New York to being a muni
cipal disturbance, under municipal authority? May it not
have possession of the port of New York and the ports upon
the lakes, and have control, by usurpation, of the resources
of the State and of its militia of 400,000 men? And is not
this a case where, clearly, war is to be pursued?

THE PRIZE CASES 275

Then we come to the second section:

"Whenever the laws of the United States shall be opposed
or the execution thereof obstructed, in any state by combi
nations too powerful to be suppressed by the ordinary course
of judicial proceedings or by the power vested in the marshal
by this act, it shall be lawful for the President of the United
States to use the militia."

And by the Act of 1807 he can call out the army and navy.

Now, is not this a case of war? If it were necessary to
find, in formal congressional action, a provision recognizing
that civil authority and peaceful control of Government
was gone, and that the power of war should be applied by
the President, do we not find it in this Act?

What are the English definitions, what are the definitions
by the publicists, of a state of war excepting that which is
very distinctly figured in this statute? that is, when the laws
cannot be enforced, and the power of the marshal is inade
quate to enforce them. What is the power of the marshal?
It is the entire peace power of the country, that, under its
Constitution and its laws, is to be brought into action.
And when the exhaustion of the peace powers of the country
has occurred, what is there left known to the publicists but
the war power?

I say, then, in the 8th proposition that the cases put by
the statute are a war, the remedies are a war. Under these
statutes, under the Constitution, and in presence of the
rebellion such as is known, such as has been stated by my
learned associates and indicated by myself, this Govern
ment came to act. Now, we have left only to see what it
did do; it being left to the Government, its Executive, in its
administration of those great authorities given by the Con
stitution and this Act of Congress, to determine, beyond the
subsequent judgment of any court whether it should deter
mine right or wrong. (That is well adjudicated.) What
did the President do? And what are the faults, or what the

276 SPEECHES OF WILLIAM MAXWELL EVARTS

excesses, imputed to his action, as bearing on inquiries that
are open in these prize causes? Your Honors will not be
detained by any recurrence on my part to the terms of the
proclamations or of the message of the President. Suffice
it to say, that on the 15th day of April he called forth, as
I submit to the Court, the war power of the country to sup
press this rebellion. I have not heard that any fault is
imputed to that proclamation calling for the 75,000 men.
If he had called for 750,000, it was in his discretion. On the
17th of April a new movement was made on the part of the
rebellion. What was that? It raised the threat and pre
pared the execution, of the suppression of the commerce of
the United States. A proclamation for Letters of Marque
and for Privateers, inviting all who would take commissions
from the rebel government to prey upon the commerce of
the United States was issued. Thus, besides being a per
sonal or treasonous war, and besides being a territorial war,
it was made by the rebellion, on the 17th of April, a war
against the trade of the United States, to drive our commerce
from the seas and to reduce the resources and supplies of the
national strength. On the 19th of April, meeting blow by
blow in direct force, the President of the United States is
sued his proclamation of blockade, establishing the naval
method of war against the rebellion indicated by the neces
sities of the Government and its duty to the people. What
did he mean by it? Did he mean that it was a peace block
ade? Did he mean that it was a blockade of obstruction?
Or did he mean that it was a blockade under the war power
and within the terms of the law of nations? Did he mean
that it was to be confined to the forcible exclusion of vessels
and was to carry none of the sanctions by which a blockade
is supported under the law of nations? No. He in terms
directed that "the vessels are to be captured and sent in for
adjudication as prizes." We had thus an indication not to
be mistaken, an interpretation not to be withstood, that the

THE PRIZE CASES 277

President of the United States did undertake to use the
force of the country for the suppression of the rebellion in
its array of armies on land, in its possession of the territory
of the United States which it had wrested from the power of
the Government and against its trade as an answer to its
attack on the trade of the United States.

Well, now, Congress assembling on the 4th of July, the
President of the United States informed it that he had called
on the war power of the Government under the Constitution
and the laws. We then are able to meet and completely repel
the suggestion of our learned friends that though the Presi
dent might have done, yet he has not in fact done, such
acts as entitle us to claim that the war power of the Govern
ment has been exerted for the suppression of this rebellion.
In its nature it is sufficient, but in the intent of the proclama
tion, in the message to Congress, and in all the action of the
Executive, it is very apparent that he exerted this power.

But, if the Court please, Congress came together, and it
did pass certain acts. Every one of these captures was made
before the passage of any Act by Congress at all touching the
condition of the country. But Congress did pass certain
Acts, and I think there is some diversity of opinion and state
ment between our learned friends as to what the effect of
those acts is. I understood the Boston propositions to
say that these subsequent Acts of Congress do retroact upon,
give meaning and effect and purpose to, the proceedings of
the President, make them rightful and in law effectual; but
then they claim that this retroactive effect and interpreta
tion do not make the acts of the President a full exercise of
the war power against trade or against the territory, but
only give them a personal form of coercion. On the other
hand, I understood Mr. Lord to argue that there is and can
be no retroactive effect whatever in the legislation of Con
gress on the predicament as existing anterior to, and at
the time of, the captures in question. So, too, I do not

278 SPEECHES OF WILLIAM MAXWELL EVARTS

understand our friends to argue that there is not a war now.
I do not understand Mr. Lord to argue that this is not a war
now, including all the powers and all the rightful exercise of
war, in maritime capture, in blockade, in condemnation of
prize, and in what not. But he says — and this is his funda
mental proposition — that although a war inter gentes from
its waging and prosecution, on the mere fact of its existence,
imports to itself, under the law of nations, all the authori
ties and methods known to that law, yet a civil war derives
only, and is limited by, in its modes and powers, such au
thority as the legislation municipal and domestic shall give
it. And he says that the Act of July 13, 1861, — if I under
stood him aright — does really introduce, under legislative
sanction and authority, territorial war, with its consequences,
which he deprecates, not in word and in form, for it surely
does not say anything about war, but because it had under
taken by municipal law to effect non-intercourse between the
loyal and disloyal parts of the country.

My friend, Mr. Lord, in his printed brief, has made a
very extensive criticism on this act in a certain sense, which,
I shall respectfully submit to the Court, a very few consid
erations will render inapplicable. I shall not insist, at
length, on the meaning of this Act which has been so well
presented by the brief and the argument of my learned asso
ciate, Mr. Dana. But this is to be seen on the face of it,
that it was not intended simply for a special or temporary
purpose, but that Congress, foreseeing that circumstances
might at any time arise which would render it necessary,
has given authority to have a custom house on board ship,
or to close the port by municipal authority. That has
nothing to do with the use of force in suppressing the rebel
lion. The fifth section seems to be the first and earliest that
can be indicated as having any special influence on the war.
What is that? In its nature — I will not repeat its terms —
it is an aid and assistance given by municipal law to the

THE PRIZE CASES 279

military action of the Government in separating the loyal
from the disloyal territory. But my learned friend says that
that first introduces the right to establish non-intercourse
and thus furnishes the degree and consequences of non-
intercourse.

Let us see how that is. We will first take it before the
statute passed, where your military lines were drawn or
may have been drawn. They were drawn from the city of
Washington, or the city of Baltimore, or the shore of the
Chesapeake across the country to Missouri. That was a
purely military action of the Government and nobody here
has disputed that it is lawful. Supposing that intercourse
of any kind is attempted to be conducted across these mili
tary lines, from one side or the other, does not every person,
does not every piece of property thus coming in contraven
tion of the military line come under the law of war? Is it
not to be kept out? Is it not to be seized? Is not the mili
tary permission to be what the commander-in-chief indicates
both in regard to persons and in regard to the appropriation
or destruction of property? Is this Act of Congress a repeal
of that authority? After its passage, when the general
finds that his lines are being traversed by commodities, by
vehicles, by letters, by correspondence, and when he under
takes to apply the power of war to preserve his lines, is he
to be met by the suggestion: — "Oh, I know it is unlawful,
but the Act of Congress has fixed the measure of my author
ity and the manner of its exercise, bringing it under control
of the municipal law, and when ever you show a warrant for
my arrest I will yield to the law; but unless you bring this
form of legal process in pursuance of the municipal law, I
claim my rights as a citizen and pursue my lawful business,
made unlawful, only by the statute" ?

This statute is in accordance with common law, which
makes trading with the enemy a misdemeanor; but does that
save the ship of the British merchant and its cargo, pursuing

280 SPEECHES OF WILLIAM MAXWELL EVARTS

its voyage to Russia in contravention of the non-intercourse
which war produces, in the capture and condemnation of
prizes in the Court of Prize, sitting as a court under the law
of nations? Not in the least; and all the pretence and appli
cation of these considerations to this legislation comes
utterly without support.

But the Act of August 6, 1861, which in its terms attempts
a full and thorough support of the acts of the President has,
it is said by our learned friends, its vigor and operation only
in the future and from its date, and makes war from that
date. But why not for the past? I submit to your Honors
that, on all the cases and on the principles of political con
trol in the situations of war and peace, and on examples in
our own history, so well presented to your Honors in the
facts of General Taylor's conduct in the Mexican war,
before the passage of the Act of Congress declaring it,
there is nothing truer, nothing simpler than that, when the
authoritative voice of the Government has been presented
concerning the state of war, it is — at least, in the absence of
some express limitation — received by the courts as an inter
pretation of the true character of the disturbances and hos
tilities. Will anyone contend, as a lawyer, that if General
Taylor's battle of Palo Alto and Resaca de la Palma had
been replaced by naval engagements or had been attended
by naval engagements, or by naval captures of the trade of
Mexico, or by the establishment of a blockade, as acts of
force by the military authorities having the power of the
country for that purpose reposed in them, the captures
would have been discharged and restored because they were
made after Mexico had commenced war and while we were
resisting it by land and by sea, but yet anterior to the Act
of Congress? Why, the proposition, within any rules of
public law or any authority, is absurd. Now this is all —
this time — that is so zealously sought to be saved for the
protection of these particular vessels, between the 27th of

THE PRIZE CASES

281

April and the time when Congress thus gave the voice of
the nation, interpreting, not enacting, the state of war.
The proposition goes no further, and it is met by every
authority and by every principle of public law.

My learned friends do not explain themselves exactly as
to what kind of a blockade, and what consequences, in mari
time or naval power, this measure of the Government could
rightly have. Our learned friend, Mr. Edwards, who repre
sented the neutral or British position, our friend Mr. Black
and our friend Mr. Lord, do not, any of them, seem to ques
tion the right of blockading the ports. That is to say, they
justify the Government in blockading the ports, without
any act of Congress. Is that a municipal regulation?
Certainly not. Is it a war power then? Yes. But they
say that there should not have been superadded to this
actual institution of blockade the sanctions for making it
operative and effective which the law of nations brings.
What are those sanctions? Why, that any vessel preparing,
any vessel designing, any vessel attempting, a breach of
blockade is, at any part of its voyage, liable to seizure. They
say, "You have a right to keep vessels in front of those
ports, you have a right to stop any vessel going in, you have
a right to send her off, but you cannot bring her into prize
condemnation." But if you cannot bring into prize con
demnation vessels seeking to break the blockade, how do
you make the blockade effectual and operative? You make
it operative, not by right of war but by mere power or scuffle
in each case; and you collect about your ports the ships of
all nations which have got that far without fault and without
exposure of any kind. Well, if they got that far without risk
and without exposure, they will get farther without risk and
without exposure. If your limited strength is to send home
to port vessels attempting to run the blockade, there to be
released, your blockade is determined from the failure of your
naval strength. Or if your right is simply to set her prow

282 SPEECHES OF WILLIAM MAXWELL EVARTS

about at night and she can come back in the morning, and
you repeat the game over and over again, then you have a
mere puerility of war.

What is the power of blockade? What is it, says Sir Wm.
Scott, but the forcible prevention of access to ports? What
is the forcible prevention of access to ports? It is like the
forcible prevention of anything prohibited. It is not mere
arrest; but it is arrest and detention, and infliction of conse
quences, whatever come from it. But my learned friend,
Mr. Lord, seeing that that puerility of war would not do,
says, "Oh, you may have the most terrible power of war;
you may sink a ship attempting to violate the blockade."
He says that if a vessel is bringing supplies (and I suppose
he would say, if she were bringing contraband of war) you
may sink her; but the law of nations is that, on the high seas,
this execution of the law of war shall not be, and is not,
permitted. The proposition of the law of nations is, these
seizures of commerce, of ships and their cargoes, may right
fully be made, but you shall neither destroy nor appropriate,
on this primary forcible execution of a right. You may, so
to speak, seize the ships in the darkness and uncertainty of
night, but you shall not destroy them there, and you shall
not appropriate them there. You shall keep them till the
daylight of the prize court can shine upon them, discover
their features and their circumstances, and show whether
their seizure is an execution of the power of war.

How does the law of nations enforce that rule? Why,
if a belligerent power shall undertake to sink ships indis
criminately on the ocean — as my learned friends say it may —
in order to maintain its war power, neutral nations, the au
thorities of the world, would intervene and say: "That is a
power and right of war which cannot be executed in that
way." There is but one case supposed in which the bellig
erent is authorized and justified, under the law of nations
in destroying property — and that is when the condition of

THE PRIZE CASES 283

the law of nations that the prize jurisdiction and sentence
shall follow is rendered practically impossible by the bellig
erent possessing no ports. That is the law of nations which
keeps the Alabama afloat and gives to it execution and
appropriation at sea, without prize adjudication. And
that is the only way and the only reason. How otherwise
does the law of nations enforce this proposition that you
shall not only not destroy but you shall not appropriate?
Because by a universal proposition of the law of nations, the
title to property passes only by prize adjudication. If the
ship which a belligerent has captured and sought to appro
priate should be found anywhere in the world, it would
be no title, to be pleaded in an action of trover or replevin,
that the ship was captured under the rights of war by a bel
ligerent at war. Prove all that on the part of the defendant
and still the plaintiff would have a verdict and recover the
property. But prove further that the ship was captured
and brought in for adjudication, and produce the prize
sentence, and the defendant will have a verdict, whether the
capture was under the laws of war or not. It is thus
that the law of nations, wise and strong, secures the observ
ance of this rule as the condition on which it will permit the
exercise of belligerent rights on the open seas. It secures two
great objects — first preventing the destruction of property,
so that you shall not strike it out of the values of the world,
so that the corn and the wine, the fabrics of comfort and of
necessity that belong to the world for its use shall not be sunk
in the bottom of the sea under the claim of belligerent right;
and second, that neutrals shall not hold their position on
the seas, subject to the discretion, the justice, or the good
faith of naval commanders; but that the prize courts that
make records and that bind their sovereign, shall have re
view of the captures.

Now, if the Court please, I will look, but a moment, at
the question of enemy property as distinct from the rest,
and then I shall submit the case.

284 SPEECHES OF WILLIAM MAXWELL EVARTS

JUDGE NELSON: In connection with your argument that
the President, under the circumstances in which he was
placed, has the power, can he grant Letters of Marque and
Reprisal?

MR. EVARTS: That question, if your Honors please, falls,
I suppose, properly under the same considerations (and your
Honor's question as well as my answer is equally applicable
to a foreign war commenced by invasion) and under the same
principles on which this Court held that, by the law of na
tions, the mere existence of war, without the exercise of
legislative authority, did not operate an appropriation or a
right of confiscation of goods on land, never doubting, how
ever, that it did operate a right of appropriation and of
prize condemnation of goods at sea. Now, whether the
President of the United States having a right to use the en
tire militia of the nation, having a right to use the entire
navy of the nation, having a right to use the entire army of
the nation, would also have a right to use the mercantile
marine in the form of private ships of war for the purpose
of prosecution of war must rest wholly on the question
whether he, in the actual emergencies and needs which
the facts of any given case had thrown upon him for the
protection of the Constitution and the Government and the
maintenance of the authority of both, as of necessity was
obliged to recur to it. There is not any statutory authority,
and there is not, in any terms in the Constitution, any
authority given to him except to be commander-in-chief of
the army and navy and to be the Chief Executive.

Now, my own judgment — if the Court will allow me to
speak of what is so unimportant — is that when you come to
the necessity of employing private armed vessels to main
tain the authority of the Government, whoever has the
executive power of the Government in that emergency can
issue those Letters of Marque. But, if your Honors please,
that question can never arise, except in a prize court and as

THE PRIZE CASES 285

toward neutral nations. It never can become a question,
when the authority is exercised in conformity with the in
terior structure by which the departments of the Government
and the fabric of public liberty and safety are to be main
tained. I know of no statute, or of no express clause of the
Constitution which, in its necessary terms, covers this in
stitution; but the whole armed power of the country falls
within his powers as commander-in-chief, to be employed
by him for the purposes authorized by the Constitution.

I understood your Honor to ask the question in reference
to the existing state of the law, and not under any statute of
law which should authorize, in case of emergency, of invas-
sion, or of insurrection or of rebellion, a recourse to the
system of privateering.

JUDGE NELSON: I only asked in reference to existing Acts
of Congress, such as existed at the time.

MB. EVARTS: If there was such a general law, of course
my argument that the President could use private armed
vessels according to the law of nations would be applicable.

I come now from that question of maritime capture, and
to the proposition that a prize sentence is judicial, in sep
arate authority and effect from the act of capture. I do
not know where my learned friends, who seemed to think
that some of these acts by the Government might be war
ranted at sea, find any authority for any of them unless they
can find authority for all of them to the extent that the Gov
ernment claims. Before, then, the Act of July 13th, if
the war power of the Government was not in existence, and if
the prize judicature did not exist, for aught I can see, a Bos
ton merchant could fit out a ship or vessel for the purpose of
carrying contraband of war in the shape of consignments to
Charleston, to loyal merchants in Charleston. I will keep
him clear of the doctrine of constructive treason by carrying
contraband of war to rebels in arms. But I do not see why,
in good faith under a previous order from loyal citizens of

286 SPEECHES OF WILLIAM MAXWELL EVARTS

Charleston, a Boston merchant could not send down a cargo
of gunpowder and rifles, unless the power of war of the Gov
ernment exposed them to the application of the military, the
naval, and the effective power of the Government to seize it.
There is not any libel or information that could be filed in the
district court or anywhere else, under any statute that can be
found that could stop it. There is nothing but the power
of war to suppress it. My learned friend, Mr. Lord, would
meet that case in this way: "You can sink that ship at sea,
but you cannot bring it in and condemn it as a prize."

Now, what is maritime capture in its essence, and in the
mere quality of enemy property, as distinguished from
capture for contraband or breach of blockade? In the
first place I ask your Honors' attention to the well-settled
proposition of prize law, and that is, that the prize adjudi
cation always proceeds on the ground that the thing con
demned is enemy property, although it be condemned, being
in fact neutral property, for breach of blockade or for carry
ing contraband. The proposition is this: that a belliger
ent has no right except against his belligerent— that is the
beginning of it— but that neutrals, by contravening the law
of nations and not respecting belligerent rights may get
themselves into the attitude of being, pro hac vice, enemies
from their conduct. The two main features are, carrying
contraband which exposes vessels to capture anywhere on
the sea, and attempting to break the blockade which ex
poses them to capture at any time that the voyage is medi
tated, or the voyage is undertaken. But what right have
we to take them? Because they have affected themselves
with the quality of enemy pro hac vice; and such is the logic
and such the language of the prize authorities. There never
was a law authorizing maritime capture that ever auth
orized anything but the capture of enemy ships and enemy
property. There never was an act that authorized the cap
ture of neutral ships for breaking blockade. The prize

THE PRIZE CASES 287

Act, the capture law, all say, "seize the enemy's ships and
goods." Well, we always seize neutrals. Therefore it is
in the quality of enemy property that neutral vessels are to
be condemned for breach of blockade and for carrying con
traband; and, so far from breaking blockade and contraband
standing better than direct enemy property in these contro
versies, there is not a footing to go against neutrals for con
traband or for the breach of blockade, unless the doctrine
of enemy property is established. Will neutral nations
submit, as they all have submitted, to a law of nations which
prevents them from carrying on commerce between block
aded ports and their own countries, if our ships are permitted
to carry on such commerce from our ports? What was the
case of the Francisca? The Russian blockade was excluded,
as against neutrals, because England had reserved the right
to carry in commerce of her own, for her own convenience,
for a period of ninety days. The neutrals submit wholly
on the ground that you have stopped commercial intercourse
of all kinds by the laws of war. They say, "you had a
right to do it toward your enemy. If we undertake to run
against you, we become your enemy pro hac vice and fall
within the same condemnation. But if you have no condem
nation for .the enemy, you can have none for us." If a
Boston ship can carry goods into Charleston, then an Eng
lish ship can. And if an English ship can be seized for doing
it, and sentenced, a Boston ship cannot be seized for doing
it and released. This doctrine, that you may take the
Boston ship and turn it aside, and take the English ship and
confiscate it, is a doctrine which the neutral powers would
not submit to.

Now, this is the proposition from Halleck's international
law, page 726 :

"As a general rule all property belonging to the enemy
found afloat on the high seas, and all property now afloat,
belonging to subjects of neutrals or allies who conduct

288 SPEECHES OF WILLIAM MAXWELL EVARTS

themselves as belligerents, may be lawfully captured. All
property condemned is, by fiction or rather by intendment
of law, the property of enemies — that is, of persons to be so
considered in the particular transaction. Hence prize acts
and laws of capture with reference to enemies' property, are
construed to include that of subjects of neutrals and allies
who, in the particular transaction, are to be regarded as

enemies."

Now, about breach of blockade. It is not any fault in an
enemy to run a blockade. An enemy's running a blockade
does not expose him to confiscation. He, as an enemy, is
exposed to confiscation because he is an enemy, whenever
you may catch him or how, but not because he has run the
blockade. This is the decision in the case of the Francisca.
An enemy's ship commits no offence against the law of na
tions by attempting to elude a hostile squadron and enter a
blockaded port. She has a perfect right to do so if she can.
She is already subject to seizure in another character, but
she does not incur any penalty by breach of blockade.

Therefore, you see that, from the one hand and the other,
these neutrals, who, my learned friend Mr. Lord thinks, must
have to take care of themselves while he is saving the actual
enemy, come into the matter only because they turn them
selves into enemies by doing things which are offences for
them. The enemy is an enemy in his own quality, not from
any offence he commits, but of his predicament — if I may
use a phrase to which some objection is made.

Now, it is said that there are various obligations, in justice,
in duty, and in consistency with the principles of jurispru
dence, in touching the commerce, in the shape of the ships
and cargoes, of private owners who are loyal citizens and
yet are residents of a part of the rebel territory. Now, let
us understand that matter. It may or may not have been a
necessary or useful thing for this Government, in under
taking to suppress the rebellion, to seize the Crenshaw, the

THE PRIZE CASES 289

Hiawatha, the Brigida or the Amy Warwick. It may be
quite true that the rebellion might be suppressed without
doing that. But that it was a wise thing to attempt to cut
off the inexhaustible supplies from the rebellion which it
would require from foreign nations, by drawing a line of
blockade and suppressing the commerce of neutrals and of
the rebellion, nobody can doubt. That it was just as com
petent as it was to draw a line across the country — for there
was no municipal law for that — there can be no doubt.
But the truth is this, if the Court please: — You do not war
against private property on sea any more than you do on
land, in the true theory of the matter. You do undertake to
reduce and destroy the commerce which belongs to the ene
my's country, as a part of its growth, its strength, its sup
plies, its energies, its revenues, its resources. That is what
you undertake to do. Now, every ship is the ship of some
private owner; but you cannot touch the commerce of the
enemy as such, unless you touch the particular ships which
belong to private persons. When you invade an enemy's
country you advance through his territory to reduce his
strength and cut off his resources; but every rood of land
which you occupy by your military movements is private
property. You do not confine yourself to seizing the public
places in the cities or the public highways in the country.
You cannot encroach upon and occupy and reduce the terri
torial strength of the enemy except by encroaching upon and
possessing and appropriating and applying, and using, ac
cording to the laws of war, the acres which belong to particu
lar owners.

Now, the law of war, when you occupy private property
on land, is one thing, and the law of war when you capture
property at sea is another. They are both laws of war.
They have their own reasons. It is not necessary to en
lighten or defend them. The general proposition in regard
to the land is that you keep it for military purposes, in the

21

290 SPEECHES OF WILLIAM MAXWELL EVARTS

largest sense, and that you can appropriate it so as to have
the usufruct of it during the possession which war gives you.
But what is the law of nations and of war in regard to ships?
It is this: The only way they can be taken from the enemy's
commerce is, either to destroy them at sea or elsewhere, or
to preserve them as part of the property of the world and
to change the title from the enemy to yourself. You do not
pile up his ships in your harbors to be restored to him after
the war by the jus post dominium. You do not destroy
them. That is not permitted, from the danger to neutral
property by the execution without examination.

You are then proceeding here to suppress the enemy's
commerce. Was that a judicious object for the President
and the political authorities of the country to effect? We
will not debate that here. Here is not the place to debate it.
There was the place to debate it. Could any man in his
senses suppose that in execution of these powers of war, out of
a commerce so limited in the possession of ships on the part of
the South as we know it to be, there would have been brought
with the Registers of the Prize Courts of the country forty
million dollars' worth of property, almost all of it, I agree,
neutral property, British, French and Mexican property, and
not even a cry of faultfinding from these great nations?

Now, if we have found that the application of the law of
war is submitted to by neutral nations, is recognized, and
has, without recourse and without restitution, brought into
our registers this quantity of commerce, what would the
commerce have been which would have flowed in from all
parts of the earth, feeding the failing revenues and exhausted
resources of this rebellion, if we had not applied the law of
war? Will commerce keep away under my learned friends'
peace blockade and monitor malis imposuit doctrine of
stopping the trade and returning the ships? Not a boat of
this forty million dollars' worth would have come within the
clutches of your war power, and the whole strength and aid

THE PRIZE CASES 291

of foreign nations would have supplied this rebellion not only
with the resources which their commerce gave them, but
with the alliances and the war which must have sprung up
between this country and them.

Now, if the Court please, we do not sit in judgment on the
President and his councils. We show you that he has at
tempted and undertaken to do this. We show you the
circumstances under which it has been done, and we show
you the measure of its practical consequences.

Now, I agree that when my learned friend exclaims
"Shall we not only be asked to concede these proceedings
against loyal citizens in the Southern States but to say that
it is just for a parental Government to execute this seques
tration of the hard earnings of an honest and loyal citizen
allured under the stress of a rebellion which he opposes
with his will?" my learned friend commits the common
error of confounding what is lawful and just as an end
with what is lawful and just as a means. Shall I be told
that it is the dictate of parental love to mutilate the warm,
living body of his child? As an end, nothing more cruel
and more wicked. But if it be the surgeon's knife which
amputates the limb, to save the child's life, then, as a means,
it is not only allowable, but it is the duty of the parent thus
to apply the infliction. Nothing so bad as to confiscate the
Crenshaw, the Hiawatha, or whatever ship of neutral or of
loyal citizen, as an end. But as a means of carrying the
protection of this Government to all the property, not only
of these individuals there resident, but of all the loyal people
of the South, and of saving from the madness of rebellion
the rebels themselves, we are not, under the generalities of
war, to be distracted from our purpose and duty by a shudder
at the blood which trickles from the surgeon's knife.

Now this difficulty has been noticed in all similar contro
versies. When our revolutionary ancestors issued their
resolution for maritime capture, they deprecated on the

292 SPEECHES OF WILLIAM MAXWELL EVARTS

face of it that it would bear hard on the subjects of England
who were their friends, and they begged them to understand
that it came from the generalities of war. When the British
people undertook their movement, and the Crown of Eng
land suppressed the trade of these colonies, Lord Rocking-
ham and other opponents protested against the general
proceedings which confounded loyal subjects in America
with those who were rebellious. But as great an authority
as Lord Mansfield defended it, and on its true reason. He
said: "It is the case put by the Swedish general, Gustavus
Adolphus. 'My lads,' said he, 'do you see those men yonder?
If you do not kill them they will kill you.'"

Is there any deeper or more solemn moment of duty than
that? And shall a parental Government, which never
inflicted injury in peace, be accused of cruelty — not against
men, for, my learned friend says, we may shoot them all,
not against the fixed property down South, for we may burn
it all — he says — not against their ships, for we may sink them
all — but the prodigious cruelty of changing property in to
bacco and cigars? Why, my learned friend strips himself
and this contest, of the laws of war which are its amenities,
and must choose between the alternative of waging a feeble
war or the alternative of waging a barbarous and cruel war,
bellum nefandum. He vibrates between one and the other.
If he had been brought into the councils of the Government
he undoubtedly, in that situation and capacity, would have
approved that, according to circumstances and means, the
measures of the Government should be taken.

Now, if the Court please, we on the whole respectfully sub
mit that the United States, a sovereign nation, prosecuting
its right by force to suppress a domestic rebellion which uses
the array and power of war against it, may rightfully exert
all the powers and methods of war which the resources of
its territory and its population furnish; that the Government,
in doing this, had set on foot and was maintaining a maritime

THE PRIZE CASES 293

blockade according to the law of nations; that in the prose
cution of that right these captures were made, and the adjudi
cation of the vessels and cargoes was made in the court
below; that these measures were within the competency of
the Government as the force of war; and that the sentences
are conformed to that authority.

And now, if the Court please, this closes the case of the
Crenshaw on the part of the Government, and with it the
discussion of the important questions, juridical, political,
governmental, and international, which have so long occu
pied the attention of the Court. As viewed by the Govern
ment, the inquiry as a judicial one is limited to the single
topic of prize or no prize as presented on the record of each
particular case and, behind that, to the single further ques
tion whether the political authorities of the Government, in
making these captures, were executing the powers of war
on reasons of duty and necessity sufficient for itself. On
behalf of the claimants, the view presented is this, that this
nation, this Government, is put to plead at this bar for the
right and the power to use the full measure of its strength to
uphold the Constitution and to preserve its existence. No
other Government, no other nation, ever urged such a plea
in any presence less august than of the assembly of the na
tions, before the Judge and lawgiver of all the earth, magister
et imperator omnium, Deus, in the solemn arbitrament of
war. If this momentous issue be really before you, it is
the greatest question ever submitted to human hearing;
and its very statement shows that perils limitless and inestim
able hang upon your judgment, for if, in truth, the law of
this Government is at variance with its power, in the very
agony of this great struggle to preserve its existence, its
fate can be neither uncertain nor remote. And who will
wish to survive it?

If the Court please, to your abundant learning, to your
wide judicial experience, to your comprehensive wisdom,

294 SPEECHES OF WILLIAM MAXWELL EVARTS

to the intimate and all-pervading sense of nationality, to
your perpetual justice, your all-compelling duty, your all-
inspiring loyalty, this question of the welfare, the safety,
the permanence of the Republic, of which this Court is the
grace and the defence, may well be committed.

IV

ARGUMENT IN THE SUPREME COURT OF THE
UNITED STATES IN CHURCHILL AGAINST
THE CITY OF UTICA

TAXATION BY STATE OF THE STOCK OF
NATIONAL BANKS

NOTE

The history of legislation and judicial decisions affecting the
question of taxation of banks (both State and National) prior to
the argument of this and similar cases is briefly as follows :'

In 1863, Congress passed an Act, providing for the organization
of banks under the Federal authority and control. This Act was
superseded in 1864, by an Act passed in June of that year, which
contained additional provisions of material importance to the
questions raised in the various bank tax cases. Before the passage
of either of these National Bank Acts, Congress had enacted,
February, 1862, that the United States stock and bonds, whether
held by individuals or corporations, should be exempt from taxa
tion by or under State authority. This enactment was little more
than legislative expression of previous judicial interpretation and
decision by the Supreme Court in the leading case of McCuttoch
vs. Maryland and cognate cases, and of the doctrines there laid
down by Chief Justice Marshall, asserting the supremacy of the
powers of the General Government under the Constitution and
freedom of the National credit from State interference or impair
ment.

In February, 1863, two cases came before the Supreme Court
involving the question whether the Tax Commissioners of New
York City could lawfully impose a tax upon that part of the prop
erty of banks, organized under State authority (State Banks) that
consisted of United States securities (People ex rel Bank of Com
merce vs. Commissioners of Taxes, 2 Black, 620 and People ex rel
the Bank of the Commonwealth vs. Commissioners of Taxes, 2 Black
635). In the Bank of Commerce case the New York Court of

295

296 SPEECHES OF WILLIAM MAXWELL EVARTS

Appeals had made a distinction between those United States
securities that had been acquired by the bank prior to the Act of
Congress of February, 1862, above referred to, and those acquired
since the passage of that Act, holding that by force of that Act
United States Securities acquired since its passage were exempt,
but otherwise not. The Supreme Court rendered its decision
March 10, 1863, re versing the New York Courts and holding, on the
doctrines of McCulloch vs. Maryland, that all United States securi
ties owned as the property of the banks were exempt from taxation
by the State and should be deducted from the aggregate property
of the banks, in arriving at the property lawfully taxable under
State authority. Under the law of New York as it then stood the
method of subjecting corporations to taxation provided that the
capital stock of every Company "shall be assessed at its actual
value, and taxed in the same manner as the other personal and real
estate of the county."

Immediately upon the announcement of these decisions and, no
doubt, as a direct consequence, the New York Legislature passed
an Act varying the method of taxing Banking Associations and
provided that "All banks, banking associations, etc., shall be liable
to taxation on a valuation equal to the amount of their capital stock
paid in, or secured to be paid in and their surplus earnings etc., in
the manner now provided by law." It was supposed by the legis
lators that they had thus found a method of accomplishing much
the same result, that would not be obnoxious to the Supreme
Court decisions. As by this method no examination and appraisal
of the actual assets of banks need be made to arrive at a basis of
taxation, it might be construed as not to impose a tax upon those
assets. But the United States Supreme Court in the Bank Tax
Case (2 Wallace 200), which was argued in January, 1865, disposed
of this legislation of New York as being equally repugnant as the
former, holding that taxation on a valuation equal to the amount
of capital stock paid in was taxation of the property in which the
capital stock was invested, and that in so far as that property con
sisted of United States securities, the attempt to impose a tax by
the State Law was unconstitutional and void, again reversing the
New York Court of Appeals.

But the efforts of the State to bring within the scope and exer-

BANK TAX CASE 297

cise of its taxing power the large amount of property invested in
the banks, though the investment itself was thus protected from
any direct imposition by State authority, soon found an indirect
means of accomplishing substantially the result which, through
direct interference by the State, The Federal Constitution had
prohibited.

The National Bank Act of June, 1864, provided for a tax by the
Federal Government upon the circulation and deposits and then
proceeded as follows: "Provided, that nothing in this Act shall be
construed to prevent all the shares in any of the said Associations,
held by any person or body corporate, from being included in the
valuation of the personal property of such person or corporation
in the assessment of taxes imposed by or under State authority, at
the place where such Bank is located and not elsewhere, but not at
a greater rate than is assessed upon other moneyed capital in the
hands of individual citizens of such State; provided, further, that
the tax so imposed under the laws of any state upon the shares of
any of the associations authorized by this Act shall not exceed the
rate imposed upon the shares in any of the banks organized under
authority of the state where such association is located; provided,
also, that nothing in this Act shall exempt the real estate of asso
ciations from either state, county or municipal taxes to the same
extent, according to its value, as other real estate is taxed."

Shortly after the decision of the Bank Tax Case, and in March
1865, the New York legislature passed an Act, called an enabling
act, by which a method was provided whereby banks organized
under state laws could avail themselves of the provisions of the
National Bank Act and transact their business under Federal
rather than State control. Under Section 10 of this Act, "All the
shares in any of the said banking associations organized under the
Act of Congress, held by any person or body corporate, shall be
included in the valuation of the personal property of such person
or body corporate or corporation, in the assessment of taxes in the
town or ward where such banking association is located, and not
elsewhere, whether the holder thereof reside in such town or ward
or not; but not at a greater rate than is assessed upon other
moneyed capital in the hands of individuals of this state : Provided
that the tax so imposed on such shares shall not exceed the par

298 SPEECHES OF WILLIAM MAXWELL EVARTS

value thereof; and provided further that the real estate of such
associations shall be subject to state, county or municipal taxes to
the same extent, according to the value, as other real estate is
taxed."

Upon this state of the law taxes were imposed on the shares of
National Bank Stock in the hands of individuals, at a full valua
tion, though the entire capital stock of the banks was invested in
and represented by United States securities, with the exception, of
course, of the real estate owned by the respective banks. The
case of Churchill against the City of Utica was argued at the same
time as Van Allen vs. The Assessors, 3 Wallace, 573, and another
case, all of which involved the legality of the tax. The Court
decided that the tax was illegal, but the decision was on the ground
that the law of New York was repugnant to the Act of Congress
in that it made no such limitation as the Act of Congress required,
viz., "that the tax so imposed under the laws of any state upon the
shares of the associations authorized by this Act, shall not exceed
the rate imposed upon the shares of any of the banks organized
under the authority of the State where such association is located."
The State banks were taxed on their capital and under the ruling
of the Supreme Court if the capital was in United States securities
it was exempt; thus a discrimination was made against the Na
tional Banks and in favor of the State Banks. But, as the Court
said: "This is an unimportant question as the defect can be reme
died by the State Legislature."

The important question discussed in the argument and in the
opinion of the Court and in the dissenting opinion, was whether the
tax on the shares was not in effect a tax on the capital of the bank
and, therefore, under prior decisions, so far as the capital of the
bank was invested in United States securities, invalid. While this
discussion was not necessary for the decision of the particular cases
before the Court and in that sense was extra judicial, still the
Court intended by this decision to settle this important point.
The cases were argued at great length on January 31, February
1, 2 and 5, 1866. Associated with Mr. Evarts on the argument
were C. B. Sedgwick, John H. Reynolds and Lyman Tremaine.
They were opposed by Francis Kernan and Amasa J. Parker.
The Court decided, Mr. Justice Nelson delivering the opinion, that

BANK TAX CASE

a tax upon the shares of National Bank Stock was not repugnant
to the constitutional exemption. From this decision the Chief
Justice and Justices Swayne and Wayne dissented in an opinion
by the Chief Justice.

In the face of this opinion of the Court, however, Mr. Evarts,
in a professional opinion, advised the submission of the question
to the Supreme Court again in cases where it would be essential to
the decision to pass on the question. He expressed great confidence
that the Court would finally adopt the reasoning of the Chief Jus
tice and modify the extra judicial dicta pronounced by the Court in
this case. In this expectation he was disappointed, for in Decem
ber, 1866, eleven cases came before the Supreme Court involving
this question in the argument of which Mr. Evarts took part.
The Court treated the cases in a somewhat summary fashion, reit
erating the decision in Van Allen vs. the Assessors, and Churchill
vs. Utica, and adhering to the doctrines there laid down. There
was also the same dissentient vote. (People ex rel Duer against
Commissioners of Taxes, 4 Wallace, 244.)

ARGUMENT

May it please the Court: I cannot think that the learned
counsel, on the one side or the other, who have addressed
the Court in this discussion, which it is permitted to me now
to close, have at all over-rated the importance of the subject
presented to your Honors. As a pecuniary interest, it is
probably as large as ever came under your cognizance, — larger
than, in the course of jurisprudence, has ever been submitted
to any other court, — for, if looked at only in the measure of
an annual tax to be laid by the various States upon the whole
mass of property of these national banks, it comes to an
enormous value; and, regarded as a rule, not for a year, but
for the continual course of taxation, the proportions swell to
still larger dimensions. So, too, in the extent of the appli
cation of your rule to be laid down in this case, which, though
coming from the State of New York, yet, since that State is
under the Constitution and under the laws of the United

300 SPEECHES OF WILLIAM MAXWELL EVARTS

States, must be substantially of the same character and have
the same effects in all the States of the Union, the magnitude
of all the interests is again presented as most serious. But
while I thus agree in the gravity of the issues from the pecun
iary interests at stake, I must think that some of the topics,
insisted upon by our learned opponents as great elements in
the importance of this question, were misconceived. The
question whether such a great mass of property should be
withdrawn from the funds accessible to the taxation of the
States, which presented itself to the learned court that de
cided this cause in the State of New York, so that, somewhat
beyond the bounds of ordinary judicial decorum, the learned
Judge spoke of it as "frightful," and which, in the arguments
of my learned opponents, has been brought to your notice in
various tones of alarm and lament, is really not a topic for
insisting upon the importance of this question. Whatever
there is to disturb the equanimity of a court in that subject
has already been disposed of by your Honors in the previous
decisions, which have withdrawn absolutely, and under any
form of property or ownership, the securities of the Federal
Government known as the "public debt." This matter of
the three or four hundred millions of bank stock, which weare
considering, is not the cause or the occasion of the subtraction
of these funds from State taxation. It is as investments in
the securities of the Federal Government that these stocks
are presented to your Honors as entitled to the immunity
which belongs to these securities; and it is under decisions of
this Court, which have made $3,000,000,000 of Federal
debt not subject to State taxation, that this derangement of
the funds, of the property, which, on one side or the other,
is to bear the burdens of our double government, is affected.
For the like reason, there is as little foundation, on an
accurate attention to the subject, for the suggestion of the
impropriety of the want of uniformity which would be pro
duced among the citizens and in respect to property, if these

BANK TAX CASE 301

investments, these bank capitals, these bank operations,
should be withdrawn from the whole support of the State
Governments under which they are protected in common
with the whole mass of property of the same description, — that
is, the mass of personal property, — and for the statement that
this gives great magnitude to the interests presented to you,
as if it were a question whether this mass of property, now
before you, should escape taxation or not. That is not the
question. It has been suggested to you already by my
learned associates that, under the taxation of the National
Government, as prescribed in the frame and as a part of the
bill creating these banks, they are made to pay, in the sup
port of our common burdens, a very large measure of taxa
tion, amounting to from two and a half to three per cent, in
the average upon their whole capital, and that they thus
pay from ten to twelve millions of dollars annually towards
the support of the Federal Government.

At a time when practically we paid no taxes to the Federal
Government, and the States had, undisturbed, the whole
area of the real and personal property of the citizens of the
United States by which to support their own institutions, a
subtraction from the State Governments of a fund of taxa
tion was equivalent to a withdrawal of it from contribution
to the public burdens in any direct form. But now that we
bear the burdens of taxation in our property in support of
both the Federal Government and our State Governments,
it is apparent that the suggestion, that the withdrawal of
property from the legitimate exercise of the power of taxa
tion by the States is relieving it from the payment of taxes,
no longer has support in the fact. It becomes, therefore, as
respects the burdens which the citizens of the United States
and the citizens of the States, both being the same persons,
are to bear, a question merely of the prudence, wisdom, and
policy of the adjustment of taxes; for just so far as these
banks contribute to Federal taxation, just so far they relieve

302 SPEECHES OF WILLIAM MAXWELL EVARTS

all the other property of the citizens of the different States
from their contributions to the burden of Federal taxation.
If it be true that they no longer are computed in the mass of
property that shares the burdens of State taxation, never
theless the citizens of the States, in their other property,
feel the contribution of these national banks to the needs of
the National Government, just as distinctly and just as
directly as they would, if they contributed to the support of
the State Governments. We are, therefore, relieved from
both of these elements of difficulty and these disturbances in
respect to the judgment of the court, so loudly insisted upon.
If the present rate of taxation does not exact from this kind
of property its full share of the burdens which it should be
called upon to bear, then the Federal Government, the com
mon master of all those institutions in all portions of the
country, acting in the general interest, but regarding also the
private interest of the citizens of all the States, may in
crease the taxation; so that, instead of contributing ten or
twelve millions of dollars as they now do, by enlarged rates
they may be made to contribute twenty or twenty-four
millions of dollars. That is wholly a question of policy and
wisdom in the taxing power.

Your Honors will thus see that all these considerations
really do not touch the burdens of the citizens, but only the
question what, in the complex system of our government,
which now is required, both in its general control and in its
separate State jurisdiction, to demand taxes from the citi
zens, is the proper and beneficial adjustment for us, in our
capacity of citizens of the State and citizens of the United
States.

Nor am I at all disposed to dissemble or disguise the dif
ficulties of the discussion. If they seem to me less formidable
than the zeal and ability of my learned opponents, in the
interests of their clients, have represented in urging them
upon the Court, yet the respect due to the unanimous, ad-

BANK TAX CASE 303

verse opinion of the highest court of the State of New York,
expressed in the judgment of one of the most distinguished
Judges that the State has produced, who now, by voluntary
retirement, has closed one of the most honorable judicial
careers that our history can show; the great dictum (as it is
called) of Chief Justice Marshall, and the carefully weighed
opinion of Mr. Webster, speaking always as one having
authority, would admonish me of the rashness of my judg
ment. After all the difficulties, I apprehend that a thorough
examination of the case will show, that,though the question
comes here under the appellate jurisdiction of this Court,
under the 25th section of the Judiciary Act, and though the
subjects of discussion here, and the decision appealed from
and to be reviewed here, do touch the construction of the
Constitution and the laws of the United States, and the
great constitutional conflict between the powers of the
General Government on the one hand, and the rights and
jurisdiction of the States on the other hand, yet all these
questions, belonging to that high region of jurisprudence,
have been really disposed of by the previous judgments of
this Court; and the limit of the discussion, which, on the
presentation of the case and your Honors' scrutiny of it,
will prove to be needed for its determination, will be found
to fall quite short of this elevated region, and really will turn
upon questions of corporation law, as to what the relations
of shareholders are, in the just idea of the constitution of a
corporation, to the property and franchise, which, as an
aggregate, are undoubtedly represented by the corporation
itself. Since, then, it turns upon this question, what the
relations of shareholders are to the property and franchise of
a corporation, I shall consider whether or not the previous
decisions of this Court have disposed of the question already,
by its adjudications on the capital and the franchises of cor
porations; or whether, not having thus been absolutely
covered by the previous decisions, the relation of shareholders

304 SPEECHES OF WILLIAM MAXWELL EVARTS

to a corporation is such as to require their inclusion within
the principles that this Court has already laid down, in re
gard to the aggregate property and franchise; or, if this is
not the case, whether a discrimination can be made, which
shall find a place for it as new and separate property in the
hands of shareholders, to be unaffected by the rules estab
lished in reference to the aggregate property.

Now, if the Court please, I have but a word to say in
regard to the particular circumstances of the case in which
I especially speak; for the question to be discussed in it is the
same as in the other cases, and is substantially the same
question, I imagine, that must come up from the different
States, whenever attempts shall be made to exercise the right
of State taxation on this subject matter. This Bank of
Utica was constituted as a National Bank under the Act
of 1863, and its capital was wholly invested in public
securities of the United States that were issued before
the 1st day of June, 1864, — a date only important, since
it distinguishes those securities as being previous to the
Banking Act of 1864, — in which latter Banking Act, for
the first time, appears the clause cited from the 41st section,
which gives a license or permission for the taxation of shares.
Whatever, then, there may be in any differences in this
respect, as has been hinted at in the judgment of the Court
below, this Bank occupies the most favorable position; for
its securities were taken by it, as investments, while there
was the open and general pledge of the public faith, that they,
protected by the National arm, were wholly free from State
taxation. And the bank, organizing and acquiring these
securities under such circumstances, if there be much for
judicial consideration in what has been adverted to more or
less in the argument (to wit, the question of a breach of faith
in the Government, in allowing taxation by permission of
section 41 of the Act of 1864) is within the most favorable
consideration in that respect. But, I confess, I cannot see

BANK TAX CASE 305

that the correction of the alleged breach of faith on the part
of the Government, if it has been shown in any degree,— I
do not think it has been, — could be made by a judicial deter
mination of this Court. Undoubtedly we do press it, and
properly, as an argument of much force, tending to the proper
construction of section 41 and the license there given, that,
in the view contended for by our learned opponents, a breach
of faith might be involved; whereas, in the construction
which we suppose it properly bears, no such imputation is
admissible.

If the Court please, this plaintiff in error, owning fifty
shares in this bank, of the par value of five thousand dollars,
has been rated thereon as a tax-payer under the laws of
the State of New York, and is compelled thus far, by the
judgment of the Courts of our State, and, unless your
Honors shall reverse their decision, will be finally com
pelled to pay a tax, at whatever the rate of taxation
is in the local community where this bank is placed,
upon the par value of those shares. All the other stock
holders are exposed to the same application of law, and,
under this decision, the united stockholders are to pay a
rate of taxation under the jurisdiction of the State upon
what is equivalent, in their shares taken together, to the
capital of the bank. In other words, $200,000 being the
capital of this bank — a National Bank — and being wholly
invested in Federal securities, that capital is, by the form of
assessing and collecting a due proportion of the tax on it
from each shareholder, made to produce to the State of New
York precisely the same amount of taxation, as if the same
rate had been laid upon the capital of the bank, and it is
made to affect the actual beneficial value of the shares, and
the receipts and profits of the shareholders, precisely in the
same manner, and to the same effect and measure, as if the
tax had been laid upon the aggregate capital. I think, in
the whole course of this discussion, your Honors have not

306 SPEECHES OF WILLIAM MAXWELL EVARTS

heard from our learned opponents any contradiction of that
proposition : that this form and manner of taxation produces,
as its fruit to the State, precisely the same amount, as the
same rate of taxation upon the aggregate capital in the
hands of the bank; and that it produces the same effect in
diminishing the value of the capital stock, by diminishing
the profits of that capital stock, laid in the form now pro
posed, that it would produce, if it were laid upon the aggre
gate capital, and upon the corporation as the taxable person.

These matters of fact being thus clearly ascertained, free
from dispute, we need next to look accurately and attentively
to what are the premises concerning the taxability of the
corporations themselves, having their capital in such invest
ments, from which we are to start upon the only inquiry left
for discussion in this Court, whether the stock, as an aggre
gate, and the franchise, as a part of the value in the hands of
the corporation, and the corporation, as a person subject to
taxation, being exempt from this tax, this rate, this payment
to the State of New York, the shareholders are subject to
all from which the corporation itself is free.

I think that, on the second page of my brief, I have ac
curately stated the result of the determinations of this
Court, both on this topic, as it relates to the investment in
United States securities, and to the corporation, as a national
institution within the protection of the Constitution, oper
ating as an agency and means employed by the Government;
and I say that it is settled by adjudged cases in this Court,
that no tax can be imposed, by the laws or authority of a
State, upon the securities in which the capital of this bank
was invested, nor upon any person or corporation standing
in the relation of owner of such securities, nor by any measure
of his or its property as including such securities. The
cases are familiar to your Honors, and I will only read a
word or two from the former bank-tax case in the Court of
Appeals, to show that the principle is as thoroughly recog-

BANK TAX CASE 307

nized by that Court, — obeying the decision of this Court,
which has corrected its former errors, — as it is by this Court
itself. In that case, which is not reported as yet in any
volume of our reports, but is the case which came up to this
Court, and is reported here in 2 Wallace, Chief Judge Denio
said:

"It must be considered a settled point, that the power of
taxation residing in the State Governments does not em
brace, as a possible subject, the securities of the public debt
of the United States."

Upon that clear recognition that the subject, the res, the
investment, was absolutely protected against State taxation,
his Honor, giving the opinion of the Court of Appeals in
that case, went on to hold that, whenever the tax was laid,
not upon the capital of the bank at its value to be ascertained
by assessors, but upon the nominal or original capital of the
bank, it was not a tax upon the Federal securities, although
the whole of that capital was invested in those securities.
That error this Court corrected by the decision in 2 Wallace;
and now, more than ever, the Court of Appeals admits this
principle, and submits to that application of the principle,
but has found a means, in a decision and opinion in these
cases, to say that, although Federal securities are not a
possible subject of State taxation, yet that Federal securities,
under the form of ownership which their relation to the
shareholders of a national bank exhibits, can be made to pay
precisely the same tax that they would, if they were a possible
or real subject of State taxation.

The other immunity which we claim here, and concerning
which it is important to know to what the determination, up
to this point, of this Court has brought us, is the immunity
of these banks in capital, in operations, and in franchises,
from State taxation, not because of any form of investment
of their property in Federal securities, but, in the absence
of that investment, because of their mere character of Fed-

308 SPEECHES OF WILLIAM MAXWELL EVARTS

eral institutions. What, from this point of view, is their
situation in regard to State taxation? Upon that point I
apprehend this is a just postulate, not to be contested and
not really contested by the arguments of the learned counsel :
— that it is settled by adjudged cases in this Court, that this
Bank, in its corporate capacity, is not subject to State taxa
tion by the laws or under the authority of a State, upon its
franchise, operations, or capital (aside from the question of
investments in Federal securities), but that it is wholly
exempt from such taxation, by reason of its relation to the
Federal Government, as an agency or instrument of that
Government in the exercise of its constitutional power.
Without adverting or recalling your Honors' attention to
the cases in your own Court, insisted upon so frequently and
so familiar to you, I will, upon this point, only call your
attention to the complete recognition of this proposition by
the Court of Appeals. In the first Bank tax case — the one
which was decided on appeal by this Court in 2 Black — a
case reported in 23 New York Reports, Judge Denio gives
this as the clear judgment of that Court upon the proposition:

"But when it had once been settled that the bank was a
constitutional agency and instrument for the moneyed opera
tions of the Government, it followed necessarily, as it seems
to us, that it could no more be taxed by State authority,
than the Treasury Department, the Mint, The Post Office,
or the Army or Navy; and it was upon this ground that the
Maryland Statute was held to be unconstitutional."

And, too, his Honor, Judge Comstock, in giving a dis
senting opinion in that case, in which he obtained the
concurrence of this learned Court on the appeal to it, made
these observations :

"As to all subjects over which the taxing power of a State
extends, there are no limitations dependent on the power of
its exercise. If we admit the right to tax this credit in any
mode and to any extent, we must admit it in a different mode

BANK TAX CASE 309

and to a greater extent. There is no limit to the principle.
The acknowledgement of the right in any degree involves a
conflict between the Federal Union and the parts of which it
is composed; but, as the Union is supreme in the exercise of
all its powers, including the vital one of borrowing money,
no authority can be constitutionally opposed to it, which
confines the exercise of those powers. This is a principle
which requires the absolute exemption of the National credit
from State taxation."

Has the last proposition that I have mentioned been ques
tioned, that this Bank, in its capital, in its operations and its
franchise, was wholly exempt from State taxation? Has
that been questioned in the decision of the Court below, or in
the arguments here? I must say that, in the decision of
the Court below, I do not think it is questioned, although
there are some observations that go to support the point,
that the decision with regard to the United States Bank
stood upon surer grounds, in respect to the character of that
institution, than the argument about these National Banks
in respect to their character could stand; but, nevertheless,
I understand that learned Court to place its decision wholly
upon the proposition that this tax, not being constitutional
if laid upon the capital of the Bank and its franchise in bulk,
by reason of an exemption of both as an accredited agent of
the Federal Government within its constitutional power, can,
nevertheless, be assessed upon the shareholders. But one
of the learned counsel who last addressed the Court in favor
of the defendants, Judge Parker, in his brief, and orally, has
somewhat questioned the fact that these Banks, in their
aggregate and corporate interests, are exempt from State
taxation. He has presented an analysis of the power of the
United States Bank as we call it, and the powers and duties
of these banks, and has intimated that the discrimination is
wholly unfavorable to the position of these banks; yet,
if your Honors please, it can hardly come to this, that he

310 SPEECHES OF WILLIAM MAXWELL EVARTS

here contends that these banks are not within the exemption
which the principles laid down by this Court extended to the
United States Bank; for to say that would be to say that
these National Banks were not constitutional creations;
because, as Chief Justice Marshall said in the discussions in
the case of McCulloch vs. The State of Maryland, if the bank
is not one of the means and agencies of the Federal Govern
ment, which, by mere force of that relation, comes to be pro
tected from State taxation, then it has no lawful existence;
"for who," says he, "can point out the right of the Govern
ment of the United States to establish a banking corporation,
unless it be as a means, an agency and performing some of
the functions of Government attributed to the National
authority by the Federal Constitution?"

So I think we may start with this proposition; that these
banks, both in respect to the investment and in respect to
their corporate immunities, are absolutely protected against
this very rating and assessment and taxation which has been
enforced against the shareholders. The law of the State of
New York, under which, during the last year, these taxes
have been laid, and under which it is proposed to lay them
in the future, to wit, the " Enabling Act," as it is called, which
has been placed before your Honors, assumes to levy taxes
"on all the shares" of the banks in the assessment of taxes
"in the town or ward where such banking association is
located and not elsewhere, whether the holder thereof reside
in such town or ward or not"; and then it provides that, for
the purpose of collecting such taxes, it shall be the duty of
every banking association, organized under the Act of Con
gress, "to retain so much of any dividend or dividends, be
longing to any shareholders, as shall be necessary to pay any
taxes hereby authorized." Under that law, transferring
taxation from the body corporate and its aggregate invest
ments to the owners of proportionate shares of its corporate
franchise, of its corporate investment, it has been held by

BANK TAX CASE 311

the Court of Appeals that, notwithstanding the principles
which exempt the bank and which the Court of Appeals
itself recognizes, the shareholders can be made to pay what
comes to the same in regard to the State, and comes to the
same in regard to their own pockets. This is supported by
that Court upon one of two grounds or perhaps upon both:
first, by the mere authority of the State, without asking
leave or allowance from this Government; and, secondly, by
the authority communicated or permitted by the proviso of
the 41st section of the National Currency Act of June 3d,
1864.

Is it not, then, entirely true that there is but one question
for discussion here, having, if you please, a twofold applica
tion, one, to the question of investment in Federal securities,
and one to the corporate aggregate known as the National
Bank; and that question is, whether what cannot be done to
the bank as a whole, can be done, from the peculiar form of
organization, to the property held by the shareholders; so
that what the State loses by the immunity that this Court
has thrown over the investment in the aggregate, is recovered
by the State, with the full power of taxation over the same
res, in a different form of approach and attack; that what this
Court has decided is necessary, is essential, is vital to the
public credit, in respect of the investment, that what this
Court has decided is necessary, is essential, is vital to the
corporate existence, for the public purposes of the Govern
ment of the United States, and so must be protected by the
power of interpreting the Constitution lodged in this Court,
and the authority of its mandate to be executed by the power
of the nation, is, nevertheless, to be wrested from Federal
control to the destruction and ruin of institutions, created
to be preserved, to the injury and burden of the public
credit, intended to be advanced, simply by the form of say
ing to the tax rater and the tax collector, "lay the tax, that
you would have exacted from the corporation, distributively

312 SPEECHES OF WILLIAM MAXWELL EVARTS

upon the shareholders, and we escape from the Federal Con
stitution and the Supreme Court of the United States, by
the form and manner of assessing and collecting," since there
is, in the practice of the States, a well-known habit of levying
taxes indifferently upon the aggregate or upon the share
holders, as convenience dictates, always recognizing that,
whichever form they adopt, they tax the same thing, acquire
their returns from the same persons, and receive into the
Treasury the same results. Certainly there never was such
a discomfiture of fact and substance, of constitutional
power, and of the firm, strong reasoning of this Court, as
would result, if this ingenious combination between the
Legislature of a State and its officers for the assessment
and collection of taxes can effect this result, and destroy
what this Court has undertaken to preserve.

I will first consider, as most briefly and satisfactorily to be
attended to, the question whether the State, in the taxation
it insists upon against these shareholders, derives any author
ity from the 41st section of the Act of Congress of June 3,
1864, and I say unquestionably that it does not; and without
any discussion of whether that section be, as Mr. Webster
imagined it would not be, unconstitutional, and without
examining the particular construction of that section,
whether it be such as to allow these stocks, thus invested in
Federal securities, to be taxed or not, — irrespective of that, —
but supposing that the section communicates a license accord
ing to its terms, and that, if its terms were observed, this
tax would be protected and allowable under it, I say that
there is no credit nor power given to the State in this taxa
tion from that section, simply for the reason that it has not
observed the conditions. The conditions are, that, if the
State taxes the shares of the national banks, it shall impose
upon them no other nor higher rate of taxation than it im
poses upon the general investment of personal property of
the State; and, secondly, observing that, that it shall also

BANK TAX CASE 313

tax them at no other rate than it imposes specifically upon
the shares of State banking institutions. It is undisputed
here, that, under the laws of the State of New York, no rate
nor tax whatever is laid upon the shares of State banking
institutions. The statutes of the State of New York say
that the shares of State banking institutions shall not be
taxed to the shareholders, and they are not taxed.

What, then, is the taxation upon a State banking institu
tion in the State of New York? It is a tax upon the aggre
gate capital of the bank, exacted from the corporation itself.
Now, will my learned friends tell me that, although the State
of New York does not lay any tax upon the shareholders of
State banks, and so does not observe the condition of the
41st section of the Act of Congress, it does lay the same rate
upon the capital of the bank in the hands of the corporation,
and that that is equivalent to laying it on the shareholders?
If they will only do that, they will relieve me from the need
of any argument; for, if laying a tax on the capital is the same
as laying it on the shares for the purposes of a State corpora
tion, then laying it on the shares is the same as laying it on
the capital of National Banks, and that is all that I have
undertaken to prove. But even if they thus surrender the
practical question to escape from a special difficulty, the
actual state of the system of taxation and its enforcement
in the State of New York would not relieve them, because,
in regard to the tax rated and collected from the corporations
created by State laws as the persons taxed, and taxed upon
their aggregate capital, under the decisions of this Court,
controlling and acted upon in the State of New York, it is
required, that, before the capital of the State bank presents
its aggregate for the rating of the tax and its payment, there
should be a deduction from it of very dollar that is invested
in Federal securities; so that, as a matter of fact, if, side by
side with this National Bank in the city of Utica, there were
a State bank, of the same capital of two hundred thousand

314 SPEECHES OF WILLIAM MAXWELL EVARTS

dollars, having that capital invested precisely as the capital
of this National Bank is invested, in Federal securities,
while, under the form of taxation laid and enforced by the
State upon the banks which I represent, there would be
paid a full rate upon the two hundred thousand dollars,
distributed upon the shares, there would not be one dollar
of tax laid or claimed against the State institution, that
carried on business in the same street, under the author
ity of the State of New York. Therefore, put it on matter
of form or put it on matter of substance, your State author
ity lays no taxation on State institutions situated precisely
as this National institution is situated; and hence, when you
seek authority by permission and license of the Act of Con
gress, the limitations and the conditions must of course be
observed, and they wholly fail. I ask your Honors' atten
tion to a very intelligent and well-considered opinion, given
in our State, in which it has been held by a branch of the
Supreme Court, that, conceding that the shares may be tax
able for aught that the authority of the United States gives
under the permission of the 41st section of the National
Banking Act, yet, for the want of the observance of its con
ditions, the law against which we are now remonstrating
and arguing is wholly invalid, because the State does not
lay a tax. That learned Court says:

"The system of taxation adopted by the State, under the
provision of the Revised Statutes, is, that the laws of the
State provide for the taxing the capital of a State Bank, and
the stockholder is not to be taxed, as an individual, upon his
shares. Therefore there is no State law, making provision
in any case for taxing the shareholders in State Banks for
their shares. Consequently the shareholders of National
banks, or State banks, are not liable to taxation in such
shares."*

* The People vs. The Town of Barton, 29 Howard's New York Practice
Reports, 371.

BANK TAX CASE 315

This your Honors will rest upon, as satisfactory proof
that the system of taxation is such as I have stated; and the
authority of that Court — indeed, I think no authority is
needed for it — is, that, if the permission to tax by the State
rests upon the 41st section, this tax cannot be sustained, for
the reason that the conditions are not observed. I shall,
therefore, for the rest, confine myself to asking what is the
great and principle question of the case presented to the
Court, to wit, the assumed power of the State of New York
to levy taxes upon this fund and capital, by the form and
means of taxing shareholders, when it cannot do it in any
other way, — a power against the will of the Government,
against the decisions of this Court, against any construction
of the Constitution of the United States that would seek to
inhibit it. But I ask attention, for one moment, to what I
assume will be regarded, when a case shall properly arise for
it, as the proper construction of this proviso. Your Honors
will notice, that the 41st section provides for the taxation of
these institutions by the National Government, and then
goes on to say:

"Provided, That nothing in this act shall be construed to
prevent all the shares in any of the said associations, held by
any person or body corporate, from being included in the
valuation of the personal property of such person or body
corporate, (from being included in the valuation of the per
sonal property of such person or corporation) in the assess
ment of taxes, imposed by, or under State authority, at the
place where such bank is located, and not elsewhere; but not
at a greater rate than is assessed upon any other moneyed
capital in the hands of individual citizens of such State:
provided further, That the tax so imposed, under the laws of
any State, upon the shares of any of the associations author
ized by this act, shall not exceed the rate imposed upon the
shares in any of the banks organized under authority of the
State where such association is located."

316 SPEECHES OF WILLIAM MAXWELL EVARTS

I apprehend that no one can claim, that there is anything
in this act that had relation to exemptions, except such as
grew out of its creating these public institutions agencies of
the Government. In other words, the exemption, created
or inferable from this act, would be the exemption that
belonged to these banks as agencies; and there is nothing in
this act that has any connection with the exemption of the
United States securities. When, therefore, you are constru
ing this proviso, which is intended to save from the operation
of an inferential exemption from this act, you must not carry
your proviso or saving clause beyond the principal provision
which it is designed to define, not to avoid. It means, then,
that nothing in the nature of these institutions, as agencies
or instruments of the authority of the United States under
the Constitution, shall save them from taxation on their
property, in the same way as other moneyed capital may be
taxed by States; but it was under other laws of the United
States that the immunity of the investment in Federal
securities was claimable, and was created. The Congress
of the United States, adopting and following the judgment
of this Court, enacted, in the Statute of February 25, 1862,
that the Federal securities, whether held by individuals,
corporations, or associations, should be exempt from all tax
ation under State or municipal authority. It is, then, under
that and similar statutes, that this form and application of
immunity is derived; and this saving clause does not operate
on that act. It merely means, "You may tax the invest
ments in the corporate property made by these corporations,
as you might do, if the immunity of Federal agency was not
over them." When you come to the question, whether,
under cover of this saving clause against a particular effect
of the statute, you have opened to the States taxation upon
Federal securities owned by these corporations, when you
have closed it against taxation in any and every other form
of ownership, you are proposing to give to this section a

BANK TAX CASE 317

force which it never, in legislative intent, could have been
designed to have, and which, on any sound principle of
construction, it cannot bear. Its meaning, so far as the
question of these investments by these banks in the Federal
securities goes, would be to put them, in that respect, on
the same footing with an individual having his moneyed
capital invested in that manner, and on the same footing
in which a State corporation, having its capital invested in
these securities, would stand. Is it to be said, that, when
all the moneyed capital in the hands of individuals and
State corporations, that is invested in the United States
securities, is protected against taxation by the State, as
soon as one of the National banks invests in United States
securities, it has opened and exposed to taxation those
very securities, which are exempt by the law of 1862, by
force of a proviso which says that the banking act shall
not be construed to exempt the National banks from State
taxation?

I think, therefore, that, on any construction of that section
(even if, by conformity of the State to the rate of taxation on
State bank shares that it has laid on national bank shares,
the permission of that section could be invoked in favor of
this tax), these three banks would still be exempt from the
payment of any tax on that portion of their capital which was
invested in the United States securities, for the reason that
I have stated to the Court. But if this proviso is not before
the Court for adjudication because it has not been followed
by the State, it will be for your Honors to consider how far
that point can be disposed of in your judgment.

It really seems as if we were reduced to but a very narrow
region of reasoning, if we are so far advanced successfully.
It must come to this, that the State, having no power (for
this law gives none) to pass the act which it has actually
passed, — no power derived from the Federal government, —
assumes a right to tax these investments and tax this capital

318 SPEECHES OF WILLIAM MAXWELL EVARTS

in the form of shares, although it cannot tax them, as has
been so often urged, in the aggregate or corporate capacity.
The argument can rest upon nothing but this: it asserts a
distinction between the capital stock of the corporation in
the aggregate, and all the shares of such capital stock as sub
jects of taxation; such a distinction between these two de
scriptions of property (I say two descriptions of the same
thing), that a tax levied upon the shares is constitutional,
although a tax levied upon the aggregate is unconstitutional.
It asserts another distinction, a distinction between the cor
poration and the shareholders or members of the corporation ;
for are not shareholders members of the corporation? Is not
the corporation composed of members? When all the mem
bers of a corporation cease to exist does not the corporation
cease? It asserts a distinction between the corporation and
the shareholders or members of the corporation, as taxable
persons, to the effect that a tax upon, or in respect of, the
same property, distributed upon the corporate members, is
constitutional, though, laid upon the corporate body, it is
unconstitutional. I have looked in vain through the briefs
and listened in vain to the arguments of my learned friends,
to find any other ground for them to discriminate for the
constitutionality of the tax on the shareholders, admitting
the unconstitutionality of the tax on the corporation and its
property, except in one or the other of these two forms.

I will take up first the question of investments. I say
that the proposition, that the investment of a corporation in
Federal securities of the whole or a part of its capital stock
cannot be made subject to State taxation, laid upon its
capital stock, and yet that the same investments may be
subjected to State taxation, laid upon the divisions or parts
of its capital stock known as shares, cannot be maintained.
The first reason I assign for this is, because the attempted
distinction overlooks the legal character and grounds of the
exemption. The exemption is of the res, of the subject of

BANK TAX CASE 3l9

the securities. It has no relation to any form of enjoyment
or ownership of them. It says that this subject of property
shall not yield a tax, and the exemption is laid for the sake
of the investment, and not from partiality to any owner,
or any form of ownership. It is that the thing itself may be
better, that it may be worthier, that it may be more valuable,
the occasions and the duties of the Federal Government re
quiring that it should be made so and kept so, and it has no
more concern with any form of ownership, as matter of
policy or as matter of personal protection, than it has with
the remotest considerations from the topic. It is that this
thing shall have the virtue in it of being worthier than
other property, because it is exempted from State taxation.
When you are talking about the different relations which
the shareholder and the corporation have to the corporate
property, and the different relations that the corporation
and the shareholders have to what are called shares, you
are talking of what is interesting and important in some views
of the law; but you are talking of a subject that has no rela
tion to this question, — whether, for the purposes of maintain
ing the exemption of this investment from taxation, the
exemption is to attend it in every form of substantial owner
ship; for it is only through forms of substantial ownership
that the worthiness of the thing is to be preserved. There
is no such separation possible as leaving the securities as
worthy as before, but disparaging their purchase, because in a
certain form they cannot be owned without being taxable.
But it also overlooks the legal ground and character of
taxation. Taxation pertains to the subject, the res, and
has nothing to do with ownership and cares nothing about it.
It is wholly immaterial to the taxing power what the form of
ownership may be; it is the value that it is after. In whatever
owner it finds that value, the taxing power will extract it by
proceeding in rent, if you please, and not care who is the
owner; or, if convenient, it collects the tax through the med-

320 SPEECHES OF WILLIAM MAXWELL EVARTS

ium of the owner, and the coercion is only to make him pay it.
The taxing power, in pursuing its method of taxing, is no
respecter of persons or forms or title. It is the thing it
looks to; and when land is the subject of taxation, as we all
know, the exaction of the tax or enforcement of it is wholly
unconcerned with titles, incumbrances, liens, divisions of
equity and at law in the enjoyment of the owner. It
taxes the property, and sells it by an absolute and paramount
title, dealing with the thing itself. The relation is the same
towards personal property, although there may not be
occasion or opportunity to apply practically the same effect.
I say, then, you overlook the nature of the distinction, when
you say that the same thing is to be extracted from taxa
tion in one form of enjoyment and not in another.

Now, suppose that a government, wishing to invite pop
ulation or to improve the domestic habits of its people,
establishes an arrangement promising freedom from taxa
tion to all dwelling houses that should be built. The dwell
ing houses are built, the law being that dwelling houses
shall be exempt from taxation. Can you tax the owner of a
dwelling house on the rent he gets from his tenant? Is not
that taxing his dwelling house? Is the promise performed,
is the faith kept, when you say, " We do not tax your dwelling
house, we do not tax you on the fee of your dwelling house, we
tax you on the rent of your dwelling house"? You tax the
dwelling house in one of the forms of its owner's enjoyment
of it as property. Can you tax the tenant and say, "We
tax you in proportion to the rent that you pay to your
landlord"? That is taxing the dwelling house; that is
taxing the house- — the thing which has been procured by the
public interests, upon the promise that it should not bear
taxation. Is not the taxation of the occupation of the house,
whether it be imposed upon the landlord or upon the tenant,
a tax upon the house? Certainly it is. And this shows us
that taxation and exemption, correlative terms, touch and

BANK TAX CASE 321

adhere to the subject, and have no concern with owner
ship, title, property, or enjoyment. All title, ownership,
property, enjoyment, is lesser than, and is included in, the
matter that is the subject of property, and that swallows
up title, interests, legal and beneficial relations; and when,
in the sense of taxation and the sense of exemption, the
subject has been rescued from burdens, nobody can feel
them. Has the subject been rescued, if anybody can feel
the burden in consequence of the subject? Has the subject
been saved from contribution, if anybody, in consequence
of connection with the subject, has to contribute? Certainly
not. You must find some other relation than that of owner
ship, whether it be legal or equitable, that you tax, or else
you tax the property itself.

This, too, exalts the forms and phrases of the law above
the law itself. The United States Government have thought
it necessary to give to their securities this credit, and thus
to send them out into the whole nation and to the world.
They have not broken their faith by any legislation. They
have not broken their faith by any construction of legis
lation. They have not broken their faith by any adjudi
cation of this court up to this time, whatever the Court of
New York may have thought. Twice corrected by this
Court on these subjects, now, with legal effrontery, not
personal, that learned Court comes here and says :

"You have told us over and over again that we cannot
tax United States securities ; cannot tax them in the measure
of anybody's property; cannot tax them in the form of
value in property at a nominal, and not a real, standard;
but we have found one shape in which we can tax them in
spite of you, — if a national bank owns them, we can make the
shareholders pay the tax."

This, I say, stultifies the acts of Congress and nullifies
the decisions of this Court on that subject. How do you
get a tax on these securities and make a shareholder in a

23

322 SPEECHES OF WILLIAM MAXWELL EVARTS

bank pay it? The whole capital of the bank is free. That
is admitted. It is free by its own nature, by its being
invested in these securities. It is free, because it has been
decided that the States cannot tax this capital. That is
all admitted. But it is said, "We tax the shareholders."
They must tax the shareholders upon this property, this
value, either because they do not own it, or because they
do. You may tax it because they do not own it, as you
would tax A on property of B, and tell him that, since B
is not able to pay your tax, you tax A on his property.
That, however, is not to be imputed. Then you tax the
shareholders because they do own this property, because
they have some ownership in this investment; and yet the
brief of my learned opponents admits that the owner of
United States securities cannot be taxed by the States for
them.

Let us look at that a little more closely. Suppose that A
holds, as trustee, $100,000 worth of the securities of the
United States, and is asked to give an account of his taxa
ble property in his relation as trustee, and he states that the
trust fund is all invested in United States securities. That
exempts him from taxation. Then the tax-gatherer hunts
up the cestui que trust and says, "What have you?" The
answer is, "My only income is from a trust fund in the hands
of A, my trustee; he is the man to pay the tax." "Oh, we
cannot tax that, because he holds United States securities;
what is your beneficial property?" "It is $100,000."
"Then we will tax you." "Well, but," the cestui que trust
says, "I do not own the property; A is the legal owner, my
trustee; why not tax him, if anybody is to be taxed? I do
not own the property; if anybody is to pay the tax, the
owner, the trustee, is to pay." " No," says the tax-gatherer,
"we cannot tax the owner; he is exempt on account of the
investment; but we tax you, as the cestui que trust, because
you are the beneficial owner and not the legal owner, and

BANK TAX CASE 323

you shall pay the tax." I imagine that, if the State should
pursue that method, this Court would correct it and say,
"that this $100,000, in its legal estate, in its equitable estate,
in its legal control, in its beneficial enjoyment, is free from tax
ation." Yet no man can distinguish between a legal owner
ship in United States securities, and an ownership in those
same securities lodged in a form and organization by which
twenty people part with their legal control over them, and turn
themselves into the enjoyment of them as beneficial or equi
table owners. Take this case: twenty men meet together,
with $5,000 in Federal securities each as private property,
and put them in bodily and make the capital of $100,000,
invested in them, of a bank organized under this act, and
come out what? — Organized into a bank, with their Federal
securities owned by the bank, of which they are the owners,
of which they are the members, of which they are the stock
holders, the legal institution holding the legal property:
Has that transmutation made the securities taxable that
were not taxable before, when the exemption adheres to the
securities, and not, by name, to any form of ownership?

But, if your Honors please, the proposition that the cor
porations, created and performing their public functions as
agencies of the Federal Government, cannot be taxed by
the State on their capital, franchise, or operations, and yet
that the shareholders, in respect of their membership and
ownership of the corporate body, franchise, and capital,
can be taxed, is self -repugnant and illusory; and, in connec
tion with this point, let me look for a moment and briefly,
though a subject inviting for illustration, upon the frame
and scheme of the National Bank system, one of the most
remarkable creations in the progress of this nation, one of
the most essential means of carrying this nation through its
late trials, and saving it from the disasters and convulsions
which attend a restoration of peace in the financial circum
stances of the nation and its citizens. What is it, and what

324 SPEECHES OF WILLIAM MAXWELL EVARTS

is the whole idea of it? What is the whole service of it?
What is the whole genius of it? It is this: it is to call into
the fiscal operations of the Government, in the execution
of its powers and duties under the Constitution, the capital,
the resources, the processes of private interest and business,
and employ them as agencies and means in the public ser
vice. It is the connection of the special duty and function
of the General Government with the living circulation of the
great body of the nation, over which it is the Government.
Government might have loan offices, loan agencies, sub-
Treasuries, and multiply them in every village, and they
would be a dead organization of the Government, mere
functionaries; but, by this system, by a happy improve
ment upon everything we had ventured or imagined in our
financial experience, the Government seized upon the living
energies of the American people and made them, by their
voluntary organizations, agents in the public service of
the country, just as distinctly, just as usefully, as, in calling
upon the citizens to enroll their persons in the military
service of the country, you have, instead of a dead organi
zation, a living body of citizen soldiers. This is what the
bill did, and what it wanted to do, and what it successfully
and wonderfully accomplished. That was the thing; it
was the private persons, and the private interests, and the
private processes, and the private energy of the people, that
it wanted to unite in this public service. That was the sub
stance, and the rest was nothing but form. It was to com
bine or organize the collective private capital and the re
sources of the nation under the well-known form of legal
incorporation, as the most convenient, if not the necessary
form of accomplishing public objects. Now, as I have said
of an army, it is the array that constitutes the army. It
is the power, it is the array, that you want; and the rest: —
of organization, of articles of war, or arrangement of ranks
and grades, and all the machinery of control, is for the array,

BANK TAX CASE

and not the array for it; and so it is the array under this or=
ganized banking system that is useful* It is the array of the
private enterprise, capital, and business, that is Wanted; and
the corporate form, a well-known arrangement for manag*
ing property, is adopted, because it is suitable for this, just
as it is for the purely private operations and affairs of life.
Upon this mere statement, which cannot be contravened,
it is apparent that the instrumentality adopted by Congress
for executing these powers of the Government, has for its
essential element this associated capital and these personal
exertions, and that the corporation is but the form of wield
ing and operating the capital. Then, as I have said, it is
not the artificial person that is the object of the Government's
care, or that is the principle or substance of its object.
That is but a form, and as a form alone it is to be allowed
to operate and to have its consequences. If immunity from
State taxation be the prerogative and the necessity of these
legal organizations, it is the immunity of the contributed
capital and of the contributors that is needed. If the im
munity is essential for the Government's purpose to main
tain the corporation, it is essential for the Government's
purpose that this immunity should rest upon those who are
to contribute their capital and find their inducements to
volunteer in this service of the Government; and any pro
tection or immunity, that shall occupy itself and confine it
self to the protection of the corporate capacity, and leave
the individuals, the members, unprotected, would soon ex
hibit the fact that it is the members who make up the
corporation, and not the corporation which secures its own
masters and members. All the arguments which we have
heard about the bank and the shareholders, that the bank
holds its property by its own title, and that no shareholder
has any title in it; that all the shareholders together can
not assign nor transfer nor convey any of its property,
but that a share in a corporation is a new form of prop-

326 SPEECHES OF WILLIAM MAXWELL EVARTS

erty; and that it belongs to the shareholder, and that the
corporation does not own that, and the corporation cannot
sell that, cannot convey that — perfectly sound, as familiar
as any other of the first elements of the law — insisted
upon here to carry certain consequences, have no effect
whatever on those consequences. As to the subject matter
of this controversy, they can have no effect. Various
definitions have been given about the relation of a share
holder to a corporation. My friends seemed to prefer
that loosest connection, which makes the shareholder the
holder of a chose in action or right of action against a cor
poration, the same as a creditor; and they pushed it so far
as to say that they think, on the whole, that a creditor has
a nearer and closer right to the property of a corporation
than a shareholder has, because he will have to be first paid
when the affairs of the corporation are closed; and the
learned Court below has adopted that idea to some extent.
These familiar doctrines are not in dispute here. It is
for the very reason that a corporate organization has these
consequences, that a corporate organization has been
selected by Congress as the means of wielding this public
operation that is essential to the service of the Government.
It is for the very reason of these effects, that it has adopted it,
to wit; that a form is provided in our law, whereby the vari
ous owners of property may combine to manage it in a
common agency, having this great principle, that its iden
tity shall be preserved, although individual owners may dis
pose of their interests; and that the public will, or major
voice, or administrative delegation, shall govern the com
mon property for the common good, instead of having it
stand always on the individual right of every man to have
his own will carried out. That is all there is to a corpora
tion. You may talk about it forever; it is wholly a form,
known in our law, whereby men may put their property to
gether and keep it in that form of ownership and organi-

BANK TAX CASE 327

zation for purposes of convenience and nothing else; and
nobody owns it but they, after they have done that. It is
purely a short, elliptical expression to say that the corpora
tion owns it. It is owned by the shareholders; it is owned
by the owners of the property. As against each other,
they have committed it and themselves to a form of organi
zation, which permits of the disposition of the property and
the maintenance of the title, with the advantages that I
have named. But to say that there are two properties, to
wit, $200,000 of investment that belongs to the corporation,
and another $200,000 that belongs to the shareholders, is
perfectly absurd. To say that this united ownership in a
subject of property, when the subject of property is free
from taxation, leaves the individual shareholders subject to
taxation on their shares, — I mean when it is exempt from
taxation by an authority stronger than that which under
takes to divert the form of taxation, — is simply saying that
the paramount government is master of the question of the
taxation of the property, and the State government is yet
final master of the question, by being master of form and
device. This Government is no master of the question
whether this property shall be taxed, if the State Govern
ment is master of the question of any form or contrivance,
which, by paltering about corporations and shareholders,
and shares being personal property, individual property,
and the corporation being aggregate property, can exact
a tax from the property. Therefore I say, that no rule of
law has ever asserted, and no refinements of argument can
ever maintain, that the corporation has its capital invested
in certain property, and the shareholders have their shares
represented by other and different property. When the res
cannot be taxed, I want you to find some other res than the
shareholders, which can be taxed. Can the property of the
corporation perish, and that of the shareholders survive?
The rule of law is "res peril domino" \ the owner loses prop-

328 SPEECHES OF WILLIAM MAXWELL EVARTS

erty when it is destroyed. The shareholders lose their
property when the capital of the corporation is sunk. That
we all know, and some of us have felt; and we never heard
of such a distinction, as that the corporation had one property
and we had another property; that the corporation could not
be taxed on its, but we might on ours.

Now, put this question: suppose, as may be done unless
there be some distinction in our States, — and there is not in
the Constitution of New York or in the Constitution of most
of the States, — that the ordinary rate of taxation is three
per cent.; that is the rate in New York City on capital;
three per cent, is laid on the aggregate capital of a bank,
and three per cent, upon the shareholders, on the par value
of their shares; in that case are two values taxed, or is it
one value that is taxed twice? Does that property pay the
usual rate of single taxation, three per cent., or does it pay
six per cent? It pays $12,000; $6,000 exacted from the cor
poration and $6,000 from the shareholders. Is that three
per cent, on $400,000, or is it six per cent on $200,000? It
is a question of one value as a subject of taxation. However
they may be distributed on interests, they are really the
different forms of owning the same thing. Suppose that a
Government, interested to invite capital in favor of manu
factures, declares that it will not tax the capital of manufac
turing companies that shall be formed under it; and, having
got them formed, it taxes the shareholders on their shares.
It says, "We cannot tax the capital; we promised not to tax
the capital; but we tax your shares." Would that be allow
able? All of this illustrates, that it is form and arrangement
of ownership in the same thing that is meant to be taxed in
one form and cannot be taxed in another form, but still is
the same thing; and that the exemption is not formal and
modal, but is of the thing itself.

We are prepared now for a further proposition of general
reasoning, which I am able to support also by the distinctest

BANK TAX CASE 329

and most explicit authority. If one of the States issues
a charter to a corporation, with a clause in it exempting
the capital stock from taxation for a limited term, and
within that term lays a tax upon the shareholders, will
not this Court correct that legislation as a breach of the
clause of the Constitution against inpairing the obligation
of contracts? I submit that the premises of that question
are the premises of this question. We have a provision of
the Constitution of the United States that the obligation of
contracts shall not be violated by the States; we have a
State making an obligatory contract that it will not tax
the bank, and it afterwards taxes the shareholders. Does
it not thereby violate that contract? What are the prem
ises of this question? The premises of this question are,
that the Constitution of the United States protects this
aggregate investment and the aggregate capital, franchise,
and operations of these banks from State taxation, and the
State taxes the shares; does that violate, or not, the constitu
tional protection? I submit that, to a legal mind, this
question carries its own answer; and it is only from the
peculiarity of the jurisdiction of this Court, under the
Constitution of the United States, in relation to sovereign
communities, that we are enabled to have, in the form of a
lawsuit and a legal decision, a question that would usually
be left to the discussions of public faith and the maintenance
of the honor of a State. In the third volume of Howard's
Reports, this whole subject is disposed of by the unanimous
judgment of this Court. Having handed that case to my
learned opponents before their argument, Judge Parker
ventured to make some remark upon it by saying that it
turned upon contract; and they conceded that, under this
clause of the Constitution, if the State had bound itself
not to tax the bank, it could not tax the shares. Now, with
great respect to my learned friend, conceding that, he might
as well concede, that, if the State of New York, under the

330 SPEECHES OF WILLIAM MAXWELL EVARTS

Constitution, cannot tax the bank, it cannot tax the shares;
and no lawyer can draw a discrimination between the two
cases. Now let us be sure that this case, of so grave conse
quences to the discussion before us, is as applicable as I have
stated it. It is the case of Gordon vs. The Appeal Tax
Court, 3 Howard, 133, an appeal from the Court of Appeals
of the State of Maryland. I will read the section of exemp
tion of the Maryland statute:

"That upon any of the aforesaid banks accepting of, and
complying with, the terms and conditions of this act, the
faith of the State is hereby pledged not to impose any
further tax or burden upon them."

This is the phrase of the exemption; the State is pledged
"not to impose any further tax or burden upon them,
during the continuance of their charters under this act,"
and that is all; there is not a word about stockholders there.
The bank accepted this law, complied with its provisions,
and some years afterwards a law was passed taxing the
shareholders for their shares, as component parts of their
general personal property. Let us see how counsel stated
the question. On page 139 the counsel for the shareholder
stated it thus :

"The tax of 1841 clashes with the exemption. It is laid
on everything which constitutes the property of the bank,
because, in a schedule, everything, even the franchise, goes
to make up the aggregate value of the stock; and the tax
is laid on the cash value of the stock. By the 17th section,
the assessors are directed to value it at the market price.
But the market price is governed by the value of all the
different species of property held by the bank, including even
the franchise, because a purchaser looks at all these when
about to invest. It is impossible to separate that portion
of the tax which falls upon the franchise, and, as the legis
lature has covered the whole, the entire tax must fall."

The counter proposition, at pages 141 to 143, is precisely

BANK TAX CASE 331

what is laid down here that the bank could not be taxed;
but this is not a taxation of the bank, — this is a taxation of
the shares, as component parts of the property of the individ
ual, in common with the other taxable property of the State,
against which it has not precluded itself by a correlative
obligation not to tax the bank. It was insisted upon there,
as here, that the difference of title made the difference of
substance; that the stock was personal property, transfer
able by and belonging to its owner; and that the stock
holders do not own the property of the bank and cannot
convey any title to it. In other words, we had the same
disputable facts and law about the relations of stockholders
and stock, capital and shares, that are insisted upon here
as regards the modal administration of the res owned;
and that was urged upon the Court as a reason for saying
that a tax on the shareholders was not a violation of the
contract not to tax the bank; but the answer of the Court
was, "That is not the way to keep the contract you have
made; the subject matter, the purpose, the object, the
promise, the result, all make your promise cover the property
in its beneficial, and not its formal ownership, and the prom
ise is broken when you tax the shares of the bank"; and his
Honor, Judge Wayne, delivering the unanimous opinion of
the Court, put the subject on the same grounds; nay, its
reasons and its phrases will answer for a decision of this
cause. After that, a similar case arose before a very learned
court in New Jersey, which is reported in 3 Zabriskie, 484.
Chief Justice Green, a judicial authority well known to
this Court, in giving the opinion of the Supreme Court of
New Jersey, said:

"When an incorporated company is, by its charter,
exempt from taxation, the stock of the company, in the hands
of the stockholders, cannot be taxed. It represents, and is,
the title to the property of the company, and is therefore
included in the exemption of the charter."

332 SPEECHES OF WILLIAM MAXWELL EVARTS

There the exemption of the charter was in regard to the
railroads of New Jersey. The form of it, I think, was this :
Fish was taxed upon his shares in the railroads, as a part of
his personal property in the aggregate; it was put down at
its value with all the other items of his property, and he con
tested the valuation, insisting that that portion of his prop
erty which was represented by the shares, was not taxable.
The exemption of the stock was found in the charter of the
company, which provided that it should pay ten cents to
the State on each passenger, "and that no other tax or im
post shall be levied or assessed upon said company." The
State did not assess the company, but assessed the share
holders. The Supreme Court of New Jersey said that could
not be done, and your Honors were not troubled with that
case because you had disposed of the Maryland case. This
also confirms, by judicial authority, what I insist upon,
that taxation upon the bank, and again upon the shares, is
nothing but double taxation. In the same opinion the
New Jersey Court say :

"The stock of incorporated banks, although the bank pays
a tax on its capital, may be taxed in the hands of stock
holders if authorized by the legislature, although it is a
second tax on the same property. Double taxation may be
unequal, oppressive, and unjust; but it is not prohibited by
any constitutional provision, and it is in the discretion of
the legislature, and courts cannot declare void a statute,
within the constitutional power of the legislature, because
its operation may appear unjust and oppressive."

Of course this topic had relation to another item of taxa
tion, not coming within the protection of the promise of
the charter and the Constitution of the United States.
The Chief Justice says that we cannot strike down a tax
that our legislature has put upon shares, because it has also
put it on the stock; it is two taxations of the same thing;
but, as our Legislature can put a double rate upon one thing

BANK TAX CASE 333

and a single rate upon another, however oppressive it may
be, it is not for us to interfere.

There seems then, if your Honors please, to be very little
reason for regretting the absence of judicial authorities,
upon what must be considered the principal question of
the case. The solution is very simple. The relation of a
corporation and of the stockholders, in respect to the prop
erty which constitutes but one subject of ownership and of
taxation, is a twofold relation to a single capital or value.
The relation of legal and equitable title in the same land is
the best analogy. So long as a tax is laid upon the property,
no variety, diversity, nor complexity of title can increase
the property or the tax. You cannot make the subject of
taxation any larger by reason of these different titles that
are carved out of it, or these different arrangements for its
management. If Congress means to protect this capital
under the Constitution, and this Court has held that it has
authority so to do, then it means to do it in a way that prac
tically saves it from the tax; and, so long as the exemption
is applied to the property, it will exempt every form and
every title in that property. The statutes of our State, in
an unbroken course of legislation, have recognized this
fact: that stock in the aggregate, and the corporation
as a person to be taxed, represent the same property as
the shares of stock and the shareholders as persons to be
taxed; and they have varied, as his Honor Judge Nelson
well knows, in the course of years, their forms of applying
taxation to corporations, as seemed to them most con
venient. Under the statute of 1813, and until the change
by the Revised Statutes, all the interests of corporations in
the State of New York were taxed upon the shareholders in
respect of their shares, as included in the bulk of their prop
erty. From the period of the Revised Statutes, a change
was made by collecting the bulk of the tax from the bulk of
the property; and as a part of the same system of assessing

334 SPEECHES OF WILLIAM MAXWELL EVARTS

and collecting the tax, it was in so many words enacted,
that no shares of stockholders, in corporations that were
taxed by the State, should themselves pay any tax. When
the stockholders paid the tax, under the old system, there
was no tax on the corporation; when the corporation paid
the tax, under the new system, there was none on the stock
holders, by the arrangement of the law which treated the
form clearly as modal, for the convenience of the State, for
the security of the collection of the tax, and for the consid
erations of policy which prefer secondary rather than direct
taxation, which latter our systems have avoided as much as
possible. There is no reason to hold, that, in the State of
New York or anywhere else, there are any principles of law,
by which these propositions that are established can pos
sibly be disturbed. I have referred in my brief to a
couple of cases in the Massachusetts Reports, where this
question is well considered and presented; that it is all one
subject of taxation, and is taxable, under the system of the
laws, either to the persons or to the corporation, as may be
found convenient.

If the Court please, the exemption from taxation, enjoyed
by the National Banks under the Constitution and Laws
of the United States, is of the capital by reason of its invest
ment in Federal securities; and again of its capital, its fran
chise, and its operations, all that it is in character, in prop
erty, and in faculty, by reason of its being an instrument of
the General Government in the exercise of its constitutional
powers. As the learned Judge Comstock says in the case in
23 New York Reports, "no corporation aggregate that the
world ever saw ever owned anything but its capital, property,
and its franchise." Nothing is added, by the creation of a
corporation, to the property that the contributors put in by
way of capital, except the franchise. That is added, making
the artificial person a creature of law; but the franchise is
all that has been added. Here we have these bodies, that

BANK TAX CASE 335

are in their capital exempt, and in their franchise exempt.
What is there about them that can be taxed? This left
nothing that constitutes an element of value, or of posses
sion, or of property, to be taxed. If the franchise had come
from the State, if the franchise were taxable by the State,
as the creature of the State, you might find something in the
constitution of the corporation (although its capital be
exempted if invested in United States securities), that
would endure State taxation. They might tax the franchise
inordinately, or moderately; they made the franchise, and
they may tax it; and the investment of the capital in United
States securities does not exempt the taxation of the fran
chise from the power of the State; and that was the distinct-
tion which was made by some observations of Mr. Justice
Nelson in the first bank tax case in 2 Black, referring to the
state of the law in New York. Franchise may bear a tax,
he said. The Legislature changed their law, but did not
come up to the point of taxing the franchise, which was taxing
for the right to be, and with reference to nothing else. The
right to be a bank, the right to continue from year to year
to be a bank, may be taxed. That was all that was open
under the observation of this Court. They did not put the
tax on the franchise, but they put the tax on the capital, on a
valuation that did not make it necessary to find what it
was really worth, but took a nominal value for it; and
thought they had avoided the judgment of this Court
by that contrivance. They had not taxed the right of the
corporation to be; they had taxed its capital upon a nominal
instead of a real, value. The Court said, "You may have
any form of valuation you choose ; but, whatever your form
of valuation, you must exempt United States securities
from it." That is the case in 2 Wallace. Now the contriv
ance here is, that of having a bank, with its franchise from
the Federal Government, with its property protected under-
Federal law, with its operations and its capital protected

336 SPEECHES OF WILLIAM MAXWELL EVARTS

as agents and instruments of the Government, incapable
of taxation, withdrawn from the taxable property of the
State, and they pursue all these into the divided shares,
and exact the tax upon them distributively.

What is a stockholder in a corporation? He is nothing,
and has nothing, in a corporation, except by his proportion
in the capital stock, and his participation in the franchise.
It is to the stockholders by name that the franchise is given,
they being natural persons, that they should have the fran
chise to be an artificial person. Is not that a form in which
the natural persons are, in the purpose and apparatus of the
law, used as one? There is neither fragment nor fig
ment for a tax to rest upon, when there is that extent of
exemption.

Now, if the Court please, on the general question, as some
thing has been said, so inconsiderately, about the compara
tive magnitude or connections of the interest with the
government of the old United States Bank, and of this many
headed institution, distributed all through the country, let
me call your Honors' attention to the importance of the
relations of these banks, even in the single subject of the
distribution of the public debt. There was issued in one
year the whole bulk, in three series, of the seven-thirty
currency notes, eight hundred and thirty millions in twelve
months; and, of that issue of the Federal debt, these Na
tional Banks took and distributed seven hundred and thirty-
six millions, leaving to the Government, in its official or
ganizations of treasury, sub-treasury and special agencies,
only ninety -four millions out of eight hundred and thirty-
millions to be so disposed of; illustrating thus what I have
ventured to suggest was the genius of this institution.
Now, to say of these two great governments, Federal and
State, standing against one another, under the Constitu
tion, with their relations adjudicated by this Court, that
all these relations are suddenly changed by the interven-

BANK TAX CASE 337

tion of this corporate form of a National Bank, and that
the State becomes the master of the two governments, by
taking away from the Federal Government what it has
reserved to itself, by giving back to the State Governments
what they had lost under the legislation of the country,
this is to make the corporation, — the mere form, — the
master of the substance, and controller of those political
and public relations. It is like the Genie of the bottle;
when the seal is up, he becomes the master of servants.
This contrivance of the National Banks, instituted for other
and additional public purposes, and serving these great
public needs, immediately takes in its hands hundreds of
millions of Federal stocks with which to serve the Govern
ment, and in its hands, and in the hands of nobody else in
this country, they can be taxed through the medium of
shareholders! At this moment these banks hold six hun
dred and twenty-two millions of dollars of the Federal
securities of the United States, — a third of the debt that is
out in any other shape than that of mere currency, perhaps
more than a third, for I have not the statistics in my mind;
and yet that mass of public debt, free by impression on its
face from taxation by the States, free in the hands of every
individual, of every corporation, of every association, must
contribute such taxes as the States may choose to impose,
discriminating or destructive or otherwise, simply because
one agency of the Government is helping it in the advance
ment of its interests in another public matter, to wit, the
debt!

If the Court please, it will not avail anything to meet
these propositions by the argument that the States, by
their natural authority, have dominion for taxation over
every subject of property and every person within their
jurisdiction. This right and this power, as necessary parts
of the State's sovereignty, are conceded; for it is idle to talk
of taxation as being a special prerogative of sovereignty. It

24

338 SPEECHES OF WILLIAM MAXWELL EVARTS

is sovereignty. It is the sovereign that taxes. It is as
universal as the sovereign. "The decree went out that
all the world should be taxed," because the Roman empire
extended over what was then called the world. Taxation
takes all you have. Put taxation and conscription together
and it is the sovereignty over the person and the property,
to the extent of the jurisdiction of the State. But the taxa
tion goes no further than sovereignty; and whatever im
pedes or qualifies or displaces the sovereignty of the States,
impedes, qualifies, displaces, taxation by the States. What
power there is in taxation to destroy, is shown by the recent
Act of Congress inimical to the continuance of the State
banks, which taxes their circulation, after a certain prospec
tive period, ten per cent. If a State has power to tax,
there is no limit. That you have decided over and over
again. It can tax these shares discriminately, if it chooses;
hostilely, destructively, fatally, if you concede the power.
You say, with jealous preservation of the Constitution,
"There is no such power"; and the State says, "True, but
we will tax the shares or parts hostilely, destructively,
fatally"; and you are called upon to say that they can; you
are called upon to surrender, as I say, to this dominant
fiction in law, the personality of a corporation. As by the
decisions is expressly stated, whenever the Government
has called the property of the citizens into the service of
the United States, in the performance of a public duty under
the Constitution as an instrument and an agency, that be
comes an instrument of the United States, and exempted
from State taxation, unless it be compatible with the public
interests that the Government of the United States should
concede it. There are but two methods to deal with this
subject. One is that which the State of New York has al
ways avowed, and, I believe, honestly intended to conform
to. Looking at it from the side of the State, it may differ
from the view that is taken on the side of the Federal Gov-

BANK TAX CASE 339

ernment, but still the principles laid down in 23 New York
Reports by Chief Judge Denio are, that, when there is a
conflict, the adjudications of the Supreme Court of the
United States are final as to the supremacy of the Federal
power, and that the only question for a State Court, as new
circumstances one after another present new cases, is to see
whether there is a conflict, and to yield. There is but one
other method; and that is the method of South Carolina, in
the decisions that are cited on the briefs. The argument of
Mr. Grimke for the United States, than which none abler was
ever made on this question, was never answered by Mr.
Legare, nor was it ever answered by the Court. The deci
sion was put upon the ground, that, if there was a conflict,
the State of South Carolina could not help it, but it governed
what was within its own dominions. That was the proposi
tion : — that the reasoning of the Supreme Court, by the mouth
of the great Chief Justice, was vicious, unsound, dangerous.
Its only viciousness was, that the supremacy of the Union
over the States was asserted; its only unsoundness was,
that the supremacy of the Union over the States was as
serted; its only danger was, that the supremacy of the Union
over the States was asserted; and this, the South Carolina
method of dealing with the conflict, as we all know at last,
is war.

V

ARGUMENT, IN DEFENCE OF THE PRESIDENT,
BEFORE THE SENATE OF THE UNITED
STATES SITTING AS A COURT UPON THE
IMPEACHMENT OF ANDREW JOHNSON,
PRESIDENT OF THE UNITED STATES

NOTE

On the 21st day of February, 1868, President Johnson addressed
a note to the Secretary of War, Edwin M. Stanton, stating that,
by virtue of the power and authority vested in the President under
the Constitution and Laws, Mr. Stanton was removed from the
office of Secretary of War, and he was directed to turn over the office
to General Lorenzo Thomas, who had been authorized by the
President to act as Secretary of War ad interim. This action of the
President was considered by the House of Representatives as in
direct contravention of what was known as the Tenure of Office
Act, passed March 2, 1867, which had undertaken to regulate the
tenure of office of appointees in the Executive Departments of the
Government. It was further considered as displaying, on the part
of the President, the deliberate purpose and intent to set himself
above the Constitution and beyond the Law.

The removal of Secretary Stanton and the appointment of Gen
eral Thomas to act as Secretary ad interim brought about the culmi
nation of the struggle between Congress and the President, that
had been in progress for almost the whole period of Mr. John
son's occupancy of the presidency. This contest, between the
Executive and the Legislative branches of the Government, arose
from the effort to solve the great problem of the reconstruction
of the Southern States and their re-establishment in the Union
after the close of the Civil War. All of this forms an instructive
chapter in our Constitutional history and the passage of the
Tenure of Office Act was itself but one of the steps taken by Con
gress to assure its supremacy.

Immediately following this action of the President, and on Feb-

340

IMPEACHMENT OF PRESIDENT JOHNSON 341

ruary 24, the House of Representatives, by the overwhelming
vote of 126 to 47, impeached the President for high crimes and mis
demeanors.

The President's action in the removal of Secretary Stanton and
the appointment of General Thomas not only brought the strug
gle to a head, but formed the gravamen of the Articles of Impeach
ment that were presented at the bar of the Senate on March 4, 1868,

These Articles were eleven in number. The first eight articles
are based wholly on this action of the President. The ninth
known as the Emory Article, charged a conspiracy between the
President and General Emory to violate a recent Act of Congress
that required all orders and instructions relating to military opera
tions, issued by the President or Secretary of War, to be issued
through the General of the army and, in case of his inability,
through the next in rank. The tenth article related to a number
of speeches delivered by the President in the summer and fall of
1866, in which he had given vent to his anger at the attitude of
Congress, in most unwise and hasty expressions of contempt for
the legislative branch of the Government as it was then composed.
The eleventh article was a statement in a different form of the
substance of many of the averments in the preceding articles, and
in general charged an effort on the part of the President to obstruct
and prevent the due execution of the laws of Congress.

After answer and replication the actual trial before the Senate
sitting to try the impeachment, with the Chief Justice of the
United States presiding, began on March 30, 1868.

The Managers chosen by the House of Representatives to con
duct the prosecution in its behalf were: John A. Bingham of Ohio,
George S. Boutwell of Massachusetts, James F. Wilson of Iowa,
Benjamin F. Butler of Massachusetts, Thomas Williams of Penn
sylvania, Thaddeus Stevens of Pennsylvania, and John A. Logan
of Illinois.

The Counsel for the President were Henry Stanbery (the Attor
ney-General), Benjamin R. Curtis, William M. Evarts, Thomas
A. R. Nelson and William S. Groesbeck; Jeremiah S. Black, also
retained by the President, had retired from the case before the
trial began.

The case was opened by General Butler, in behalf of the Man-

342 SPEECHES OF WILLIAM MAXWELL EVARTS

agers, who proceeded in the conduct of the trial throughout — in
the examination and cross-examination of witnesses. Upon the
close of the case against the President, Judge Curtis made the
opening argument for the defense on April 9 and 10, and, when
the taking of testimony was finished, the closing arguments by
the Managers and by Counsel for the President began. These
arguments occupied the attention of the Court of Impeachment
continuously for a period of two weeks, from April 22 to May 6.

Mr. Logan filed with the Court a printed argument, all the
others being oral and in the following order : Mr. Boutwell spoke
April 22d and during a part of the following day, when Mr. Nelson,
of Counsel for the President, began his closing argument, conclud
ing April 24th. On Saturday, April 25, Mr. Groesbeck spoke
for the President. On Monday, April 27, Mr. Stevens spoke for
the Managers, succeeded by Mr. Williams who concluded his argu
ment the following day.

Mr. Evarts began his argument on the afternoon of April 28,
continuing on the three succeeding days, closing on Friday the
first of May. The Attorney-General, Mr. Stanbery, then pro
ceeded with the final Argument for the President, concluding
the next day. Mr. Bingham, in his argument of three days, May,
4, 5 and 6, on behalf of the Managers, made the final presenta
tion to the Senate.

The voting on the articles did not begin until ten days later,
May 16, when a vote was taken on the eleventh article, resulting
in 35 voting "guilty" and 19 "not guilty." Thus the two-thirds
vote required by the Constitution for conviction was not obtained.
An adjournment was taken to May 26 and votes taken on the
second and third articles with the same result as before. The
Senate, sitting as a Court of Impeachment, then adjourned sine
die, taking no action upon any of the remaining articles.

Mr. Evarts, besides making the closing argument in the Presi
dent's behalf, which follows, had been most active in the conduct
of the defence owing to the illness, during the trial, of the Attor
ney-General.

Six years after this historic trial, Mr. Evarts thus alludes to it,
in his Eulogy on Chief Justice Chase, with especial reference to
the conduct of the Chief Justice as presiding at the trial :

IMPEACHMENT OF PRESIDENT JOHNSON 343

"The first political impeachment in our constitutional history,
involving, as it did, the accusation of the President of the United
States, required the Chief Justice to preside at the trial before the
Senate, creating thus the tribunal to which the Constitution had
assigned this high jurisdiction. Beyond the injunction that the
Senate, when sitting for the trial of impeachments, should be * on
Oath ' the Constitution gave no instruction to fix or ascertain the
character of the procedure, the nature of the duty assigned to the
specially-organized court, or the distribution of authority between
the Chief Justice and the Senate. The situation lacked no feature
of gravity — no circumstance of solicitude — and the attention of
the whole country, and of foreign nations, watched the transaction
at every stage of its progress. No circumstance could present a
greater disparity of political or popular forces between accuser and
accused, and none could be imagined of more thorough commit
ment of the body of the court — the Senate — both in the interests
of its members, in their political feeling, and their prejudgments;
all tending to make the condemnation of the President, upon all
superficial calculations, inevitable. The effort of the Constitution
to guard against mere partisan judgment, by requiring a two-thirds
vote to convict, was paralyzed by the complexion of the Senate,
showing more than four-fifths of that body of the party which had
instituted the impeachment and was demanding conviction. To
this party, as well, the Chief Justice belonged, as a founder, a
leader, a recipient of its honors, and a lover of its prosperity and its
fame. The President, raised to the office from that of Viee-Presi-
dent — to which alone he had been elected — by the deplored event
of Mr. Lincoln's assassination, was absolutely without a party, in
the Senate or in the country; for the party whose suffrages he had
received for the vice-presidency was the hostile force in his im
peachment. And to bring the matter to the worst, the succession
to all the executive power and patronage of the Government, in
case of conviction, was to fall into the administration of the Presi
dent of the Senate — the creature, thus, of the very court invested
with the duty of trial and the power of conviction.

"Against all these immense influences, confirmed and inflamed
by a storm of party violence, beating against the Senate-house
without abatement through the trial, the President was acquitted.

344 SPEECHES OF WILLIAM MAXWELL EVARTS

To what wise or fortunate protection of the stability of govern
ment does the people of this country owe its escape from this great
peril? Solely, I cannot hesitate to think, to the potency — with a
justice-loving, law-respecting people— of the few decisive words of
the Constitution which, to the common apprehension, had im
pressed upon the transaction the solemn character of trial and con
viction, under the sanction of the oath to bind the conscience, and
not of the mere exercise of power, of which its will should be its
reason. In short, the Constitution had made the procedure judi
cial, and not political. It was this sacred interposition that stayed
this plague of political resentments which, with their less sober and
intelligent populations, have thwarted so many struggles for free
government and equal institutions.

"Over this scene, through all its long agitations, the Chief Jus
tice presided, with firmness and prudence, with circumspect com
prehension, and sagacious forecast of the vast consequences which
hung, not upon the result of the trial as affecting any personal
fortunes of the President, but upon the maintenance of its char
acter as a trial — upon the prevalence of law, and the supremacy of
justice, in its methods of procedure, in the grounds and reasons of
its conclusion. That his authority was greatly influential in fixing
the true constitutional relations of the Chief Justice to the Senate,
and establishing a precedent of procedure not easily to be sub
verted; that it was felt, throughout the trial, with persuasive force,
in the maintenance of the judicial nature of the transaction; and
that it never went a step beyond the office which belonged to him —
of presiding over the Senate trying an impeachment — is not to be
doubted.

"The President was acquitted. The disappointment of the
political calculations, which had been made upon what was felt by
the partisans of impeachment to be an assured result, was un
bounded; and resentments rash and unreasoning were visited upon
the Chief Justice, who had influenced the Senate to be judicial, and
had not himself been political. No doubt this impeachment trial
permanently affected the disposition of the leading managers of
the Republican party towards the Chief Justice, and his attitude
thereafter toward that party, in his character of a citizen. But
the people of the country never assumed any share of the resent-

IMPEACHMENT OF PRESIDENT JOHNSON 345

ment of party feeling. The charge against him, if it had any shape
or substance, came only to this: That the Chief Justice brought
into the Senate, under his judicial robes, no concealed weapons of
party warfare, and that he had not plucked from the Bible, on
which he took and administered the judicial oath, the command
ment for its observance."

ARGUMENT
FIRST DAY, APRIL 28, 1868

I am sure, Mr. Chief Justice and Senators, that no man
of a thoughtful and considerate temper would wish to take
any part in the solemn transaction which proceeds to-day
unless held to it by some quite perfect obligation of duty.
Even if we were at liberty to confine our solicitudes within
the horizon of politics; even if the interests of the country
and of the party in power, and if duty to the country and
duty to the party in power (as is sometimes the case, and
as public men so easily persuade themselves is, or may be,
the case in any juncture), were commensurate and equiva
lent, who will provide a chart and compass for the wide,
uncertain sea that lies before us in the immediate future?
Who shall determine the currents that shall flow from the
event of this stupendous political controversy; who measure
their force; and who assume to control the storms that it
may breed?

But if we enlarge the scope of our responsibility and of our
vision, and take in the great subjects that have been con
stantly pressing upon our minds, who is there so sagacious
in human affairs, who so confident of his sagacity, who so
circumspect in treading among grave responsibilities and
so assured of his circumspection, who so bold in his forecast
of the future, and so approved in his prescience, as to see,
and to see clearly, through this day's business?

Let us be sure, then, that no man should be here as a
volunteer or lift a little finger to jostle the struggle and con-

346 SPEECHES OF WILLIAM MAXWELL EVARTS

test between the great forces of our Government, of which
we are witnesses, in which we take part, and which we, in
our several vocations, are to assist in determining.

Of the absolute and complete obligation which convenes
the Chief Justice of the United States and its Senators in
this Court for the trial of this impeachment, and of its authen
tic commission from the Constitution, there can be no
doubt. So, too, of the deputed authority of these honorable
managers, and their presence in obedience to it, and the
attendance of the House of Representatives itself in aid of
their argument and their appeal, there is as little doubt.
The President of the United States is here, in submission to
the same Constitution, in obedience to it, and in the duty
which he owes by the obligation he has assumed to preserve,
protect, and defend it. The right of the President to appear
by counsel of his choice makes it as clearly proper, under the
obligations of a liberal profession, and under the duty of a
citizen of a free state of sworn fidelity to the Constitution
and the laws, that we should attend upon his defence; for
though no distinct vocation and no particular devotion to
the more established forms of public service hovers our
presence, yet no man can be familiar with the course of the
struggles of law, of government, of liberty in the world, not
to know that the defence of the accused becomes the trial
of the Constitution and the protection of the public safety.

It is neither by a careless nor capricious distribution of
the most authentic service to the state that Cicero divides
it among those who manage political candidacies, among
those who defend the accused, and among those who in the
Senate determined the grave issues of war and peace and all
the business of the State; for it is in facts and instances that
the people are taught their Constitution and their laws,
and it is by fact and on instances that their laws and their
Constitutions are upheld and improved. Constitutions
are framed; laws established; institutions built up; the pro-

IMPEACHMENT OF PRESIDENT JOHNSON 347

cesses of society go on until at length by some opposing,
some competing, some contending forces in the State, an indi
vidual is brought into the point of collision, and the clouds
surcharged with the great forces of the public welfare burst
over his head. It is then that he who defends the accused,
in the language of Cicero, and in our own recognition of the
pregnant instances of English and American history, is held
to a distinct public service.

As, then, duty has brought us all here to this august pro
cedure and has assigned to each of us his part in it, so through
all its responsibilities and to the end we must surrender our
selves to its guidance. Thus following, our footsteps shall
never falter or be misled ; and leaning upon its staff, no man
need fear that it will break or pierce his side.

The service of the constitutional procedure of impeach
ment in our brief history as a nation has really touched none
of the grave interests that are involved in the present trial.
Discarding the first occasion in which it was moved, being
against a member of the Senate, as coming to nothing im
portant, political or judicial, unless to determine that a
member of this body was not an officer of the United States;
and the next trial, wherein the accusation against Judge
Pickering partook of no qualities except of personal delin
quency or misfortune, and whose result gives us nothing to
be proud of, and to constitutional law gives no precedent
except that an insane man may be convicted of crime by a
party vote; and the last trial of Judge Humphreys, where
there was no defence, and where the matters of accusation
were so plain and the guilt so clear that it was understood
to be, by accused, accusers, and court but a mere formality,
and we have trials, doubtless of interest, of Judge Chase
and of Judge Peck. Neither of these ever went for a mo
ment beyond the gravity of an important and solemn accusa
tion of men holding dignified, valuable, eminent, public
judicial trusts; and their determination in favor of the ac-

348 SPEECHES OF WILLIAM MAXWELL EVARTS

cused left nothing to be illustrated by their trials except that
even when the matter in imputation and under investiga
tion is wholly of personal fault and misconduct in office,
politics will force itself into the tribunal.

But what do we behold here? Why, Mr. Chief Justice
and Senators, all the political power of the United States
of America is here. The House of Representatives is here
as accuser; the President of the United States is here as the
accused; and the Senate of ihe United States is here as
the court to try him, presided over by the Chief Justice, under
the special constitutional duty attributed to him. These
powers of our Government are here, this our Government is
here, not for a pageant or a ceremony; not for concord of ac
tion in any of the duties assigned to the Government in the
conduct of the affairs of the nation, but here in the struggle
and contest as to whether one of them shall be made to bow
by virtue of constitutional authority confided to the others,
and this branch of the political power of the United States
shall prove his master. Crime and violence have placed
all portions of our political Government at some disadvantage.
The crime and violence of the rebellion have deprived this
House of Representatives and this Senate of the full attend
ance of members that might make up the body under the
Constitution of the United States, when it shall have been
fully re-established over the whole country. The crime and
violence of assassination have placed the executive office in
the last stage of its maintenance under mere constitutional
authority. There is no constitutional elected successor of
the President of the United States, taking his power under
the terms of the Constitution and by the authority of the
suffrage; and you have now before you the matter to which
I shall call your attention, not intending to anticipate here
the discussion of constitutional views and doctrines, but
simply the result upon the Government of the country which
may flow from your determination of this cause under the

IMPEACHMENT OF PRESIDENT JOHNSON 349

peculiar circumstances in which, for the first time, too, in
the history of the Government, a true political trial takes
place.

If you shall acquit the President of the United States
from this accusation all things will be as they were before.
The House of Representatives will retire to discharge their
usual duties in legislation, and you will remain to act with
them in those duties and to divide with the President of the
United States the other associated duties of an executive
character which the Constitution attributes to you. The
President of the United States, too, dismissed from your
presence uncondemned, will occupy through the constitu
tional term his place of authority, and however ill the course
of politics may go, or however well, the Government and its
Constitution will have received no shock. But if the Presi
dent shall be condemned, and if by authority under the
Constitution necessarily to be exerted upon such con
demnation, he shall be removed from office, there will be
no President of the United States; for that name and title
is accorded by the Constitution to no man who has not re
ceived the suffrages of the people for the primary or the al
ternative elevation to that place. A new thing will have
occurred to us; the duties of the office will have been annexed
to some other office, will be discharged virtute officii and by
the tenure which belongs to the first office. Under the
legislation of the country early adopted, and a great puzzle
to the Congress, that designation belongs to this Senate
itself to determine, by an officer of its own gaining, the right
under the legislation of 1792 to add to his office conferred
by the Senate the performance of the duties of President of
the United States, the two offices running along. What
ever there may be of novelty, whatever of disturbance, in
the course of public affairs thus to arise from a novel situa
tion, is involved in the termination of this cause; and there
fore there is directly proposed to you, as a necessary result

350 SPEECHES OF WILLIAM MAXWELL EVARTS

from one determination of this cause, this novelty in our
Constitution : a great nation whose whole frame of Govern
ment, whose whole scheme and theory of politics rest upon
the suffrage of the people will be without a President, and
the office sequestered will be discharged by a member of the
body whose judgment has sequestered it.

I need not attract your attention, long since called to it
doubtless, in your own reflections, more familiar than I am
with the routine, to what will follow in the exercise of those
duties; and you will see at once that the situation, from cir
cumstances for which no man is responsible, is such as to
bring into the gravest possible consequences the act that
you are to perform. If the President of the United States,
elected by the people, and having standing behind him the
second officer of the people's choice, were under trial, no
such disturbance or confusion of constitutional duties, and
no such shock upon the feelings and traditions of the people,
would be effected; but, as I have said, crime and violence,
for which none of the agents of the Government are i espon-
sible, have brought us into this situation of solicitude and of
difficulty.

It will be seen, then, that as this trial brings the legisla
tive power of the Government confronted with the executive
authority, and its result is to deprive the nation of a Presi
dent and to vest the office in the Senate, it is indeed the trial
of the Constitution; over the head and in the person of
the Chief Magistrate who fills the great office the forces of
this contest are gathered, and this is the trial of the Con
stitution; and neither the dignity of the great office which he
holds, nor any personal interest that may be felt in one so
high in station, nor the great name and force of these ac
cusers, the House of Representatives, speaking for "all the
people of the United States," nor the august composition of
this tribunal, which brings together the Chief Justice of the
great court of the country and the Senators who have States

IMPEACHMENT OF PRESIDENT JOHNSON 351

for iheir constituents, which recalls to us in the mere eti
quette of our address the combined splendors of Roman and
of English jurisprudence and power — not even this spectacle
forms any important part in the watchful solicitude with
which the people of this country are gazing upon this pro
cedure. The sober, thoughtful people of this country, never
fond of pageants when pageants are the proper thing, never
attending to pageants when they cover real issues and inter
ests, are thinking of far other things than these.

Mr. Chief Justice, it is but a few weeks since the great
tribunal in which you habitually preside, and where the law
speaks with authority for the whole nation, adjourned.
Embracing, as it does, the great province of international
law, the great responsibility of adjusting between State
and General Government the conflicting interests and pas
sions belonging to our composite system, and with deter
mining the limits between the co-ordinate branches of the
Government, there is one other duty assigned to it in which
the people of the country feel a nearer and a deeper interest.
It is as the guardian of the bill of rights of the Constitution,
as the watchful protector of the liberties of the people against
the encroachments of law and Government, that the people
of the United States look to the Supreme Court with the
greatest attention and with the greatest affection. That
Court having before it a subject touching the liberty of the
citizen finds the hamstring of its endeavor and its energy to
interpose the power of the Constitution in the protection of
the Constitution cut by the sharp edge of a congressional
enactment, and in its breast carries away from the judgment-
seat the Constitution and the law, to be determined, if ever,
at some future time and under some happier circumstances.

Now, in regard to this matter, the people of the United
States give grave attention. They exercise their supervi
sion of the conduct of all their agents, of whom, in any form
and in any capacity and in any majesty, they have not yet

352 SPEECHES OF WILLIAM MAXWELL EVARTS

learned to be afraid. The people of this country have had
nothing in their experience of the last six years to make them
fear anybody's oppression, anybody's encroachments, any
body's assaults, anybody's violence, anybody's war. Mas
ters of this country, and masters of every agent and agency
in it, they bow to nothing but the Constitution, and they
honor every public servant that bows to the Constitution.
And at the same time, by the action of the same Congress,
the people see the President of the United States brought
as a criminal to your bar, accused by one branch of Congress,
to be tried by the other, his office, as I have said, to be put in
commission and an election ordered. He greatly mistakes
who supposes that the people of the United States look
upon the office of President, the great name and power that
represents them in their collective capacity, in their united
power, in their combined interests, with less attachment
than upon any other of the departments of this Government.
The President is, in the apprehension and in the custom of
the people of the United States, the magistrate, the author
ity for whom they have that homage and that respect
which belong to the elective office. His oath of office is as
familiar to the people of this country as it is to you, for
they heard it during the perils of the war from lips that they
revered, and they have seen its immense power under the
resources of this Constitution of theirs, and supported by
their fidelity to maintain the contest of this Government
against all comers to sustain the Constitution and the law.
It has been spoken of here as if the President's oath were
simply an oath to discharge faithfully the duties of his office,
and as if the principal duty of the office was to execute the
laws of Congress. Why, that is not the President's oath;
that portion of it is the common oath of everybody in au
thority to discharge the duties of his office; but the peculiar
oath of the President, the oath of the Constitution, is in the
larger portion of it which makes him the sworn preserver,

IMPEACHMENT OF PRESIDENT JOHNSON 353

protector, and defender of the Constitution itself; and that is
an office and that is an oath which the people of the United
States have intrusted and exacted to and from no other
public servant but the President of the United States.
And when they conferred that power and exacted that duty
they understood its tremendous responsibilities, the tremen
dous oppositions it might encounter, and they understood
their duty, implied in the suffrage that had conferred the
authority and exacted the obligation, to maintain him in it —
to maintain him in it as against foreign aggression, as against
domestic violence, as against encroachments from whatever
quarter, under the guise of congressional or whatever
authority, upon the true vigor of the Constitution of the
United States.

President Lincoln's solemn declaration, upon which he
gained strength for himself and by which he gave strength to
the people, "I have a solemn vow registered in heaven
that I will preserve, protect, and defend the Constitution
of the United States," carried him, and carried the people
following him, through the struggles, the dangers, the vicis
situdes of the rebellion; and that vow, as a legend, now
adorns the halls of legislation in more than one State of the
Union. This oath of the President, this duty of the Presi
dent, the people of this country do not in the least regard
as personal to him; but it is an oath and a duty assumed
and to be performed as their representative, in their interest,
and for their honor; and they have determined, and they
will adhere to their determination, that the oath shall not
be taken in vain, for that little phrase, "to the best of my
ability," which is the modest form in which the personal
ob'igation is assumed, means, when conferred upon the
ability of the President, the ability of the country; and most
magnificently did the people pour out its resources in aid of
that oath of President Lincoln; and so when the shock
comes, not in the form of violence, of war, of rebellion, but

25

354 SPEECHES OF WILLIAM MAXWELL EVARTS

of a struggle between the forces of the Government in regard
to constitutional authority, the people of the United States
regard the President as then bound to the special fidelity of
watching that all the departments of this Government obey
the Constitution, as well as that he obeys it himself.

They give him no assumption of authority beyond the
laws and the Constitution, but all the authority and all the
resources of the laws and the Constitution are open to him,
and they will see to it that the President of the United
States, whoever he may be, in regard to the office and its
duty, shall not take this oath in vain if they have the power
to maintain him in its performance. That indeed the
Constitution is above him, as it is above all of the servants
of the people, as it is above the people themselves until
their sovereignty shall choose to change it, they do not doubt.
And thus all their servants, President and Congress and
whatever authority, are watched by the people of the United
States in regard to obedience to the Constitution.

And, not disputing the regularity, the complete authen
ticity, and the adequate authority of this entire procedure,
from accusation through trial and down to sentence, the
people yet claim the right to see and to know that it is duty
to the Constitution observed and felt throughout that brings
the result, whatever it may be. Thus satisfied, they adhere
to the Constitution, but they do not purpose to change it.
They are converts of no theories of congressional omnipo
tence. They understand none of the nonsense of the Consti
tution being superior to the law except that the law must be
obeyed and the Constitution not. They know their Gov
ernment, and they mean to maintain it; and when they
hear that this tremendous enginery of impeachment and
trial and threatened conviction or sentence, if the law and
the facts will justify it, has been brought into play, that this
power which has lain in the Constitution, like a sword in its
sheath, is now drawn, they wish to know what the crime is

IMPEACHMENT OF PRESIDENT JOHNSON 355

that the President is accused of. They understand that
treason and bribery are great offences, and that a ruler
guilty of them should be brought into question and deposed.
They are ready to believe that, following the law of that
enumeration, there may be other great crimes and mis
demeanors touching the conduct of Government and the
welfare of the State that may equally fall within the juris
diction and the duty. But they wish to know what the
crimes are. They wish to know whether the President has
betrayed our liberties or our possessions to a foreign State.
They wish to know whether he has delivered up a fortress or
surrendered a fleet. They wish to know whether he has
made merchandise of the public trust and turned authority
to private gain. And when informed that none of these
things are charged, imputed, or even declaimed about, they
yet seek further information and are told that he has re
moved a member of his cabinet.

The people of this country are familiar with the removal
of members of cabinets and all persons in authority. That,
on its mere statement, does not strike them as a grave offence,
needing the interposition of this special jurisdiction. Re
moval from office is not, with the people of this country,
especially those engaged in politics, a terror or a disagree
able subject; indeed it may be said that it maintains a great
part of the political forces of this country; that removal
from office is a thing in the Constitution, in the habit of
its administration. I remember to have heard it said that an
old lady once summed up an earnest defence of a stern
dogma of Galvanism, that if you took away her " total de
pravity" you took away her religion and there are a great
many people in this country that if you take away removal
from office you take away all their politics. So that, on
that mere statement, it does not strike them as either an
unprecedented occurrence or as one involving any great
danger to the State.

356 SPEECHES OF WILLIAM MAXWELL EVARTS

"Well, but how comes it to be a crime?" they inquire.
Why, Congress passed a law, for the first time in the history
of the Government, undertaking to control by law this
matter of removal from office; and they provided that if the
President should violate it, it should be a misdemeanor, and
a high misdemeanor; and now he has removed, or undertaken
to remove, a member of his cabinet, and he is to be removed
himself for that cause. He undertook to make an ad interim
Secretary of War, and you are to have made for you an ad
interim President in consequence!

That is the situation. "Was the Secretary of War re
moved?" they inquire. No; he was not removed, he is still
Secretary, still in possession of the department. Was
force used? Was violence meditated, prepared, attempted,
applied? No, it was all on paper, and all went no further
than making the official attitude out of which a judgment
of the Supreme Court could be got. And here the Congress
intercepting again and in reference to this great office, this
great authority of the Government, instead of the liberty
of the private citizen, recourse to the Supreme Court, — has
interposed the procedure of trial and impeachment of the
President to settle, by its own authority, this question be
tween it and the Executive. The people see and the people
feel that under this attitude of Congress there seems to be a
claim of right and an exercise of what is supposed to be
a duty, to prevent the Supreme Court of the United States
interposing its serene judgment in the collisions of Govern
ment and of laws upon either the framework of the Gov
ernment or upon the condition and liberty of the citizen.
And they are not slow to understand, without the aid of the
very lucid and very brave arguments of these honorable
managers, that it is a question between the omnipotence of
Congress and the supremacy of the Constitution of the
United States; and that is an issue on which the people
have no doubt, and, from the beginning of their liberties,

IMPEACHMENT OF PRESIDENT JOHNSON 357

they have had a clear notion that tyranny was as likely to
be exercised by a Parliament or a Congress as by anybody
else.

The honorable managers have attracted our notice to the
principles and the motives of the American Revolution as
having shown a determination to throw off the tyranny of a
king, and they have told us that that people will not bend
its neck to the usurpations of a President. That people
will not bend its neck to the usurpations of anybody. But
the people of the United States know that their fathers went
to war against the tyranny of Parliament, claiming to be
good subjects of the king and ready to recognize his author
ity , preserving their own legislative independence, and against
the tyranny of Parliament they rebelled; and, as a neces
sity finally of securing liberty against Parliament, severed
their connection with the mother country; and if any hon
orable member of either house will trace the working of the
ideas in the convention that framed the Constitution of the
United States, he will discover that inordinate power which
should grow up to tyranny in the Congress was more feared,
more watched, more provided against than any other
extravagance that the workings of our Government might
be supposed possible to lead to.

Our people, then, are unwilling that our Government
should be changed; they are unwilling that the date of our
Constitution's supremacy should be fixed, and that any
department of this Government should grow too strong or
claim to be too strong for the restraints of the Constitution.
If men are wise they will attain to what was sagacious, and
if obeyed in England might have saved great political shocks,
and which is true for our obedience and for the adoption of
our people now as it was then. Said Lord Bacon to Buck
ingham, the arbitrary minister of James I:

As far as it may lie in you, let no arbitrary power be intruded;
the people of this kingdom love the laws thereof, and nothing will

358 SPEECHES OF WILLIAM MAXWELL EVARTS

oblige them more than a confidence of the free enjoyment of them;
what the nobles upon an occasion once said in Parliament, Nolumus
leges Anglice mutari, is imprinted in the hearts of all the people.
(1 Bacon's Works, p. 712.)

And in the hearts of all the people of this country the su
premacy of the Constitution and obedience to it are im
printed, and whatever progress new ideas of parliamentary
government instead of executive authority dependent upon
the direct suffrage of the people may have been made with
theorists or with statesmen, they have made no advance
whatever in the hearts or in the heads of the people of this
country.

I know that there are a good many persons who believe
that a written constitution for this country, as for any other
nation, is only for a nascent state and not for one that has
acquired the pith and vigor of manhood. I know that it is
spoken of as the swathing bands that may support and
strengthen the puny limbs of infancy, but shame and en
cumber the maturity of vigor. This I know, and in either
house I imagine sentiments of that kind have been heard
during the debates of the last two Congresses; but that is
not the feeling or the judgment of the people; and this in
their eyes, in the eyes of foreign nations, in the eyes of the
enlightened opinion of mankind, is the trial of the Consti
tution, not merely in that inferior sense of the determina
tion whether its powers accorded to one branch or other of
the Government have this or that scope and impression and
force, but whether a government of a written constitution
can maintain itself in the forces prescribed and attributed by
the fundamental law, or whether the immense passions and
interests of a wealthy and powerful and populous nation will
force asunder all the bonds of the Constitution, and in the
struggle of strength and weight the natural forces, uncurbed
by the supreme reason of the state, will determine the suc
cess of one and the subjection of the other.

IMPEACHMENT OF PRESIDENT JOHNSON 359

Now, Senators, let us see to it that in this trial and this
controversy we understand what is at stake and what is to
be determined. Let us see to it that we play our part as it
should be played and under the motives and for the interests
that should control statesmen and judges. If, indeed, this,
our closely cinctured liberty, is at last to loosen her zone,
and her stern monitor, law, debauched and drunken with
this new wine of opinion that is crushed daily from ten
thousand presses throughout this land, is to withdraw its
guardianship, let us be counted with, those who, with averted
eye and reverent step backward, seek to veil this shameless
revelry, and not with those who exult and cheer at its
excesses. Let us so act as that what we do and what we
purpose and what we wish shall be to build up the State, to
give new stability to the forces of the Government, to cure
the rash passions of the people, so that it may be said of
each one of us, ad rempublicam firmandam et ad stabiliendas
vires et sanandum populum omnis ejus purgebat institutio.

Thus acting, thus supported, doubt not the result shall be
in accord with these high aspirations, these noble impulses,
these exalted duties; and whether or no the forces of this
Government shall feel the shock of this special jurisdiction
in obedience to law, to evidence, to justice, to duty, then
you will have built up the Government, amplified its author
ity, and taught the people renewed homage to authority.

And now, this brings me, Mr. Chief Justice and Senators,
to an inquiry asked very early in this cause with emphasis
and discussed with force, with learning, and with persis
tence, and that is, is this a court? I must confess that I have
heard defendants arguing that they were coram non judice
before somebody that was not a judge, but I never heard till
now of a plaintiff or a prosecutor coming in and arguing that
there was not any court, and that his case was coram non
judice. Nobody is wiser than the intrepid manager who
assumed the first assault upon this Court, and he knew that

360 SPEECHES OF WILLIAM MAXWELL EVARTS

the only way he could prevent his cause from being turned
out of court was to turn the court out of his cause and if the
expedient succeeds his wisdom will be justified by the result,
and yet it would be a novelty. It is said:

There is no word in the Constitution which gives the slightest
coloring to the idea that this is a court, except that in this particu
lar case the Chief Justice must preside.

So that the Chief Justice's gown is the only shred or patch
of justice that there is within these halls; and it is only acci
dentally that that is here, owing to the peculiar character
of the inculpated defendant.

This is a Senate to hold an inquest of office upon Andrew Johnson.

And I suppose, therefore, to find a verdict of "office
found." Certainly, it is sought for. I have not observed
in your rule that each Senator is to rise in his place and say
"office found," or "office not found." Probably every
Senator does not expect to find it. Your rules, your Consti
tution, your habit, your etiquette call it a court, assume that
there is some procedure here of a judicial nature; and we
found out finally on our side of this controversy that it was
so much of a court at least that we could not put a leading
question in it; and that is about the extreme exercise of the
authority of a court in regard to the conduct of procedure
that we lawyers habitually discover.

The Constitution, as has been pointed out to you, makes
this a court; it makes its proceeding a trial; it assigns a
judgment; it accords a power of punishment to its procedure;
and it provides that a jury in all judicial proceedings of a
criminal character shall be necessary except in this Court
and on this form of procedure. We may assume, then, that
so far as words go, it is a court and nothing but a court.

But it is a question, the honorable manager says, "of
substance, and not of form." He concedes that if it be a

IMPEACHMENT OF PRESIDENT JOHNSON 361

court you must find upon the evidence something to make
out the guilt of the offender to secure a judgment, and he
argues against its being a court, not from any nice criticism
of words or form, but, as he expresses it, for the substance.
He has instructed you, by many references, and by an inter
esting and learned brief appended to his opening speech, in
English precedents and authority to show that it is almost
anything but a court; and perhaps during the hundreds of
years in which the instrument of impeachment was used as
a political engine, if you look only to the judgment and the
reasons of the judgment, you would not think it was really
a very judicial proceeding; but that through all the English
history it was a proceeding in court, controlled by the
rules of the court as a court, cannot be doubted.

Indeed, as we all know, though the learned manager has
not insisted upon it, the presence of the trial, under the pecul
iar procedure and jurisdiction of impeachment in the House
of Lords, was but a part of the general jurisdiction of the
House of Lords, as the great court of the kingdom, in all mat
ters civil and criminal, and one of the favorite titles of the
lords of Parliament in those earlier days was "judges of
Parliament;" and now the House of Lords in England is the
supreme court of that country as distinctly as our great
tribunal of that name is of this country.

But one page of pretty sound authority, I take it, will
put to flight all these dreamy, misty notions about a law and
procedure of Parliament in this country and in this tribunal
that is to supersede the Constitution and the laws of our
country, when I show you what Lord Chancellor Thurlow
thought of that subject as prevalent or expected to prevail
in England. In Hastings's trial, Lord Loughborough hav
ing endeavored to demonstrate that the ordinary rules of
proceeding in criminal cases did not apply to parliamentary
impeachments, which could not be shackled by the forms
observed in the courts below, Lord Thurlow said :

362 SPEECHES OF WILLIAM MAXWELL EVARTS

My lords, with respect to the laws and usage of Parliament, I
utterly disclaim all knowledge of such laws. It has no existence.
True it is, in times of despotism and popular fury, when to impeach
an individual was to crush him by the strong hand of power, of
tumult, or of violence, the laws and usage of Parliament were
quoted in order to justify the most iniquitous or atrocious acts.
But in these days of light and Constitutional Government, I trust
that no man will be tried except by the laws of the land, a system
admirably calculated to protect innocence and to punish crime.

And after showing that in all the state trials under the
Stuart reigns, and even down to that of Sachaverel, in every
instance were to be found the strongest marks of tyranny,
injustice, and oppression, Lord Thurlow continued:

I trust your lordships will not depart from recognized, established
laws of the land. The Commons may impeach, your lordships
are to try the cause; and the same rules of evidence, the same legal
forms which obtain in the courts below, will, I am confident, be
observed in this assembly. (Wraxall's Memoirs, p. 275.)

But the learned manager did not tell us what this was if
it was not a court. It is true he said it was a Senate, but
that conveys no idea. It is not a Senate conducting legis
lative business; it is not a Senate acting upon executive
business ; it is not a Senate acting in caucus on political
affairs; and the question remains, if it is not a court what is it?
If this is not an altar of justice which we stand about, if we
are not all ministers here of justice, to feed its sacred flame,
what is the altar and what do we do here about it? It is an
altar of sacrifice if it is not an altar of justice; and to what
divinity is this altar erected? What, but the divinity of
party hate and party rage, a divinity to which we may
ascribe the Greek character given of envy, that it is at once
the worst and the justest divinity, for it dwarfs and withers
its worshippers. That, then, is the altar that you are to
minister about, and that the savage demon you are to exalt
here in displacing justice.

IMPEACHMENT OF PRESIDENT JOHNSON 363

Our learned managers, representing the House of Repre
sentatives, do not seem to have been at all at pains to con
ceal the party spirit and the party hate which displayed it
self in the haste, in the record, and in the maintenance of
this impeachment. To show you what progress may make
in the course of thirty years in the true ideas of the Consti
tution, and of the nature of impeachments, let me read to
you what the managers of the impeachment of Judge Peck
had to say in his behalf. And a pretty solid body of man
agers they were, too: Judge Ambrose Spencer, of New York;
Mr. Henry R. Storrs, of New York; Mr. McDuffie, of South
Carolina; Mr. Buchanan, of Pennsylvania, and Mr. Wickliffe,
of Kentucky. Ambrose Spencer, as stern a politician as he
was an upright judge, opened the case, and had a word to
say on the subject of party spirit and party hate. Let me
ask your attention to it:

There is, however, one cheering and consolatory reflection.
The House of Representatives, after a patient and full examination,
came to the resolution to impeach Judge Peck by a very large
majority; and the record will show an absence of all party feeling.
Could I believe that that baleful influence had mingled itself with
and predominated in that vote, no earthly consideration could have
prevailed on me to appear here as one of the prosecutors of this
impeachment. I have not language to express the abhorrence of
my soul at the indulgence of such unhallowed feelings on such a
solemn procedure. (Peck's Trial, p. 289.)

Mr. Manager Butler talked to you many hours. Did he
say anything wiser, or juster, or safer for the republic than
that? Judge Spencer knew what it was to be a judge and
to be a politician. For twenty years while he was on the
bench of New York, the great judicial light in the common-
law jurisdiction of that State, he was a head and leader of
a political party, vehement and earnest and unflinching in
support of its measures and in the conduct of its discipline;
and yet no lawyer, no suitor, no critic ever ventured to say,

364 SPEECHES OF WILLIAM MAXWELL EVARTS

or to think, or to feel that Judge Spencer on the bench was
a politician or carried any trait or trace of party feeling or
interest there. Judge Spencer was a politician in the House
of Representatives then; but Judge Spencer in the manage
ment of an impeachment could only say that if party feeling
mingled in it he would have nothing to do with it, for his
soul abhorred it in relation to so solemn a procedure.
Yes, indeed, this divinity of party hate, when it possess a
man, throws him now into the fire and now into the water,
and he is unsuitable to be a judge until he can come again
clothed and in his right mind to hear the evidence and admin
ister the law.

But to come down to the words of our English history and
experience, if this is not a court it is a scaffold, and an hon
orable manager yesterday told you so, that each one of you
brandished now a headsman's axe to execute vengeance,
you having tried the offender on the night of the 21st of
February already. I would not introduce these bold
words that should make this a scaffold, in the eyes of the
people of this country, and you headsmen brandishing your
axes, but the honorable manager has done so, and I have
no difficulty in saying to you that if you are not a court,
then you are that which he described and nothing else. If
it be true that on the night of the 21st of February, upon
a crime committed by the President at midday of that date
and on an impeachment moving already forward to this
chamber from the House of Representatives, you did hold a
court and did condemn, then you are here standing about
the scaffold of execution, and the part that you are to play
is only that which was assigned you by the honorable man
ager, Mr. Stevens, and he warned you, held by fealty to your
own judgments, not to blench at the sight of the blood.

Now, to what end is this prodigious effort to expel from
this tribunal all ideas of court and of justice? What is it
but a bold, reckless, rash, and foolish avowal that if it be a

IMPEACHMENT OF PRESIDENT JOHNSON 365

court, there is no cause here that, upon judicial reason, upon
judicial scrutiny, upon judicial weighing and balancing of
fact and of law, can result in a judgment which the impeach
ing party here, the managers and House of Representatives,
demand and constitutionally may demand to be done by
this Court? At last, to what end are the wisdom, and the
courage, the civil prudence and the knowledge of history
which our fathers brought to the framing of the Constitu
tion; of what service this wise, this honest frown in the
Constitution upon ex post facto laws and bills of attainder?
What is a bill of attainder; what is a bill of pains and pen
alties in the experience and in the learning of English juris
prudence and parliamentary history? It is a proceeding
by the legislature, as a legislature, to enact crime, sentence,
punishment, all in one. And certainly there is no alternative
for you; if you do not sit here under law to examine evidence,
to be impartial, and to regard it as a question of personal
guilt to be followed by personal punishment and personal
consequences upon the alleged delinquent, then you are
enacting a bill of pains and penalties upon the simple form
that a majority of the House and two-thirds of the Senate
must concur, and the Constitution and the wisdom of our
ancestors all pass for nought.

Our ancestors were brave and wise, but they were not
indifferent to the dangers that attended this tribunal.
They had no resource in the Constitution, where they could
so well fix this necessary duty in a free Government to hold
all its servants amenable to public justice, for the public
service, except to devolve it upon this Senate; but let me show
you within the brief compass of the debate, and the only
material debate, in the Journal of the Convention that
framed the Constitution, how the fears and the doubts
predominated :

Mr. Madison objected to a trial of the President by the Senate,
especially as he was to be impeached by the other branch of the

366 SPEECHES OF WILLIAM MAXWELL EVARTS

legislature; and for any act which might be called a misdemeanor.
The President, under these circumstances, was made improperly
dependent. He would prefer the Supreme Court for the trial of
impeachments; or, rather, a tribunal of which that should form a
part.

Mr. Gouverneur Morris thought no other tribunal than the
Senate could be trusted. The Supreme Court were too few in
numbers, and might be warped or corrupted. He was against a
dependence of the Executive on the legislature, considering the
legislative tyranny the great danger to be apprehended; but there
could be no danger that the Senate would say untruly, on their
oaths, that the President was guilty of crimes or facts, especially
as in four years he can be turned out.

That was Gouverneur Morris's wisdom as to the extent to
which the Senate might be trusted under the sanctions and
obligations of judicial oaths; but —

Mr. Pinckney disapproved of making the Senate the court of
impeachments, as rendering the President too dependent on the
legislature. If he opposes a favorite law the two houses will
combine against him, and, under the influence of heat and faction,
throw him out of office. (5 Madison Papers, p. 528.)

There is the sum and substance of the wisdom that our
ancestors could bring to the subject of whether this was to
be, or could be, a court. It is undoubtedly a very great
burden and a very exhaustive test upon a political body to
turn it into a court for the trial of an executive official in
ordinary circumstances. I shall hereafter point out to you
the very peculiar, the very comprehensive and oppressive
concurrence and combination of circumstances as bearing
on this trial that require of you to brace yourselves upon
all the virtue that belongs to you and to hold on to this oath
for the Divine aid that may support you under this most
extraordinary test of human conduct to which our Constitu
tion subjects you to-day. Now, what could the Constitution
do for us? A few little words, and that is all — truth, justice,

IMPEACHMENT OF PRESIDENT JOHNSON 367

oath, duty. And what does the whole scope of our moral
nature and the whole support we may hope from a higher
aid extend to in any of the affairs of life but these? Truth,
justice, oath, duty control the fate, life, liberty, character,
and property of every citizen. Truth, justice, oath, duty
are the ideas that the Constitution has forced upon your
souls to-day. You receive them or you neglect them; which
ever way you turn you cannot be the same men afterward
that you were before. Accepted, embraced, obeyed, you are
nobler and stronger and better. Spurned, rejected, you
are worse and baser and weaker and wickeder than before.
And it is thus that by strong ideas a free Government must
always be held to the path of duty and to the maintenance
of its own authority and to the prevalence of its own strength
for its perpetual existence.

They are little words, but they have great power. Truth
is to the moral world what gravitation is to the material;
it is the principle upon which it is established and coheres;
and justice in the adaptation of truth to the affairs of men
is in human life what the mechanism of the heavens is to
the principle that sustains the forces of the globe. Duty
is acceptance, obedience to these ideas, and this once gained
secures the operation which was intended. When, then,
you bend submissive to this oath, that faith among men
which, as Burke says, "holds the moral elements of the world
together," and that faith in God which binds that world to
His throne, subdue you to the service of truth and justice;
and the ever-living guardian of human rights and interests
does not neglect what is essential to the preservation of the
human race and its advancement. The purity of the family
and the sanctity of justice have ever been cared for, and will
ever be cared for. The furies of the Greek mythology had
charge of the sanctions of an oath. The imaginations of
the prophets of the world have sanctioned the solemnity of
an oath, and peopled the place of punishment with oath-

368 SPEECHES OF WILLIAM MAXWELL EVARTS

breakers; and all the tortures and torments of history are
applied to public servants who, in betrayal of sworn trust,
have disobeyed those high, those necessitous obligations
without which the whole fabric of society falls in pieces.

I do not know why or how it is that we are so constituted,
but so it is. The moral world has its laws as well as the
material. Why a point of steel lifted above temple or
home, should draw the thunderbolt and speed it safely to
the ground I know not. How, in our moral constitution,
an oath lifted to heaven can draw from the great swollen
cloud of passion and of interest and of hate its charge I
know not, but so it is. And be sure that loud and long as
these honorable managers may talk, although they speak
in the voice of "all the people of the United States," with
their bold persuasions that you shall not obey a judicial
oath, I can bring against it but a single sentence and a single
voice; but that sentence is a commandment and that voice
speaks with authority, "Thou shalt not take the name of
the Lord thy God in vain, for the Lord will not hold him
guiltless that taketh his name in vain."

The moth may consume the ermine of that supreme jus
tice whose robes you wear; rust, Senators, may corrode the
sceptre of your power; nay, Messrs. Managers, time even
shall devour the people whose presence beating against the
doors of this Senate-house, you so much love to vaunt and
menace, but of the word that I have spoken "heaven and
earth shall pass away and no jot or tittle of it fail."

I have now reached, Mr. Chief Justice and Senators, a
point where an adjournment would be agreeable, if such is
the pleasure of the Senate.

SECOND DAY, APRIL 29, 1868

Mr. Chief Justice and Senators, if indeed we have arrived
at a settled conclusion that this is a court, that it is gov
erned by the law, that it is to confine its attention to the

IMPEACHMENT OF PRESIDENT JOHNSON 369

facts applicable to the law, and regard the sole evidence of
those facts to be embraced within the testimony of witnesses
or documents produced in court, we have made great prog
ress in separating, at least, from your further consideration
much that has been impressed upon your attention hereto
fore.

If the idea of power and will is driven from this assembly,
if the President is here no longer exposed to attacks upon the
same principle on which men claim to hunt the lion and
harpoon the whale, then, indeed, much that has been said
by the honorable managers, and much that is urged upon
your attention from so many quarters, falls harmless in
your midst. It cannot be said of this Senate, fertur numeris
leges solutis, that it is carried by numbers unrestrained by
law. On the contrary, right here is might and power; and,
as its servants and in its investigation and pursuit, your sole
duty is exhausted. It follows from this that the President
is to be tried upon the charges which are produced here, and
not upon common fame, and least of all is he to be charged
in your judgment, as he has been inveighed against hour after
hour in argument, upon charges which the impeaching au
thority of the House of Representatives deliberately threw
out as unworthy of impeachment and unsuitable for trial.
We, at least, when we have an indictment brought into court
and another indictment ignored and thrown out, are to be
tried upon the former and not upon the latter. And if, on
the 9th of December of the last year, the House of Represent
atives, with whom, by the Constitution, rests the sole
impeaching power under this Government, by a vote of one
hundred and seven to fifty-seven, threw out all the topics
that fill up the declamatory addresses of the learned mana
gers, it is enough for me to say, that for reasons satisfactory
to that authority, the House of Representatives, that bill
was thrown out and those charges were withheld.

So, too, if it be a trial on public prosecution, and with

26

370 SPEECHES OF WILLIAM MAXWELL EVARTS

the ends of public justice alone in view, the ordinary rule
of restraint of the conduct of the prosecuting authorities
applies here; and I do not hesitate to say that this trial —
to be, in our annals, the most conspicuous that our history
will present; to be scrutinized by more professional eyes,
by the attention of more scholars at home and abroad; to be
preserved in more libraries; to be judged of as a national
trait, a national scale, a national criterion forever — presents
an unexampled spectacle of a prosecution that overreaches
judgment from the very beginning and inveighs and selects
and impugns and oppresses as if already convicted, at every
stage, the victim they pursue. The duty, the constraint
upon a prosecuting authority under a government of law pur
suing only the public justice, is scarcely less strict and
severe than that which rests upon the judge himself. To
select evidence, having possession of better; to exclude
evidence, knowing that it bears upon the inquiry; to restrict
evidence, knowing that the field is thus closed against the
true point of justice, is no part of a prosecuting authority's
duty or power. Whatever may be permitted in the private
contests of the forum, in the zeal of contending lawyers
for contending clients, there is no such authority, no such
duty, no such permission by our laws in a public prosecu
tion. Much less, when the proofs have been thus kept
narrow, when the charges are thus precise and technical, is it
permissible for a prosecuting authority to enlarge the area
of declamation and invective. Much less is it suitable for a
public prosecution to inspire in the minds of the Court
prejudice and extravagance of jurisdiction beyond the
points properly submitted.

It has usually been supposed that, upon actual trials
involving serious consequences, forensic discussion was the
true method of dealing with the subject, and we lawyers,
appearing for the President, being, as Mr. Manager Boutwell
has been polite enough to say, "attorneys whose practice of

IMPEACHMENT OF PRESIDENT JOHNSON 371

the law has sharpened but not enlarged their intellects,"
have confined ourselves to that method of forensic discussion.
But we have learned here that there is another method of
forensic controversy which may be called the method of
concussion. I understand the method of concussion to be
to make a violent, noisy, and explosive demonstration in
the vicinity of the object of attack, whereas the method of
discussion is to penetrate the position, and if successful to
capture it. The Chinese method of warfare is the method of
concussion, and consists of a great braying of trumpets,
sounding of gongs, shouts, and shrieks in the neighborhood
of the opposing force, which rolled away and the air clear
and calm again, the effect is to be watched for. But it has
been reserved for us in our modern warfare, as illustrated
during the rebellion, to present a more singular and notable
instance of the method of warfare by concussion than has
ever been known before. A fort impregnable by the method
of discussion, that is, penetrating and capturing it, has been
on the largest scale attempted by the method of concussion,
and some two hundred and fifty tons of gunpowder in a hulk
moored near the stone walls of the fort has been made the
means and the occasion of this vast experiment. Unsatisfied
with that trial and its result, the honorable manager who
opened this case [Mr. Butler] seems to have repeated the
experiment in the vicinity of the Senate. The air was filled
with epithets, the dome shook with invective. Wretchedness
and misery and suffering and blood, not included within the
record, were made the means of this explosive mixture. And
here we are, surviving the concussion, and after all reduced
to the humble and homely method of discussion, which be
longs to "attorneys whose intellects have been sharpened
but not enlarged by the practice of law."

In approaching, then, the consideration of what consti
tutes impeachable offences, within the true method and duty
of that solemn and unusual procedure and within the Con-

372 SPEECHES OF WILLIAM MAXWELL EVARTS

stitution, we see why it was that the effort was to make
this an inquisition of office instead of a trial of personal and
constitutional guilt; for if it is an inquest of office, " crowner's
quest law" will do throughout for us, instead of the more
solemn precedents and the more dignified authorities and
duties which belong to solemn trial. Mr. Manager Butler
has given us a very thorough and well-considered suggestion
of what constitutes an impeachable offence. Let me ask
your attention to it; and every one of these words is under
scored by the honorable manager:

We define, therefore, an impeachable high crime or misdemeanor
to be one in its nature or consequences subversive of some funda
mental or essential principle of government, or highly prejudicial
to the public interest, and this may consist of a violation of the
Constitution, of law, of an official oath, or of duty, by an act com
mitted or omitted, or, without violating a positive law, by the abuse
of discretionary powers from improper motives or for any im
proper purpose.

See what large elements are included in this, the manager's
definition! It must be "subversive of some fundamental
or essential principle of government," "highly prejudicial
to the public interest," and must proceed from "improper
motives" and for an "improper purpose." That was in
tended, in the generality of its terms, to avoid the necessity
of actual and positive crime; but it has given us in one re
gard everything that is needed to lift the peccability of
these technical offences of mere statutory infraction out of
the region of impeachable offence. It is not that you may
accuse of a definite and formal crime, and then have outside
of your indictment, not covered by charge or admitted for
proof or countervailing proof, large accusations that touch
these general subjects, but that the act under inquiry,
charged and proved or refuted by proof, must be of itself
such as, within its terms and regular and natural consequence,
thus touches vital interests or fundamental principles.

IMPEACHMENT OF PRESIDENT JOHNSON 373

The fallacy of these general qualifying terms is in making
them the substance of the crime instead of the conditions of
impeachability. You must have the crime definite under
law and Constitution, and even then it is not impeachable
unless you affect it with some of the public and general and
important qualities that are indicated in this definition of
the learned and honorable manager.

We may look, perhaps, at the statement made by the man
agers of the House of Representatives on this subject of what
constitutes an impeachable offence in the trial of Judge
Peck, Mr. Buchanan, of Pennsylvania, chairman of the man
agers, being the speaker :

What is an impeachable offence? This is a preliminary ques
tion which demands attention. It must be decided before the
Court can rightly understand what it is they have to try. The
Constitution of the United States declares the tenure of the judi
cial office to be "during good behavior." Official misbehavior,
therefore, in a judge, is a forfeiture of his office; but when we say
this we have advanced only a small distance. Another question
meets us. What is misbehavior in office? In answer to this ques
tion, and without pretending to furnish a definition, I freely ad
mit we are bound to prove that the respondent has violated the
Constitution, or some known law of the land. This, I think, was
the principle fairly to be deduced from all the arguments on the
trial of Judge Chase, and from the votes of the Senate in the ar
ticles of impeachment against him. (Peck's Trial, p. 427.)

That crime, in the sense of substantial guiltiness, personal
delinquency, moral opprobrious blame, is included even
under the largest and most liberal accusation that was
espoused and defended by the managers in Hastings's im
peachment, is to be gathered from one of the many splendid
passages of Burke's invective in that cause:

As to the crime which we charge, we first considered well what
it was in its nature, and under all the circumstances which attended
it. We weighed it with all its extenuations and with all its aggra-

374 SPEECHES OF WILLIAM MAXWELL EVARf S

vations. On that review we are warranted to assert that the
crimes with which we charge the prisoner at the bar are substantial
crimes; that they are no errors or mistakes, such as wise and good
men might possibly fall into; which may even produce very per
nicious effects without being, in fact, great offences. The Com
mons are too liberal not to allow for the difficulties of a great and
arduous public situation. They know too well the domineering
necessities which frequently occur in all great affairs. They know
the exigency of a pressing occasion which in its precipitate career
bears everything down before it, which does not give time to the
mind to recollect its faculties, to re-enforce its reason, and to
have recourse to fixed principles, but by compelling an instant
and tumultuous decision too often obliges men to decide in a man
ner that calm judgment would certainly have rejected. We
know, as we are to be served by men, that the persons who serve
us must be tried as men, and with a very large allowance indeed
to human infirmity and human error. This, my lords, we knew,
and we weighed before we came before you. But the crimes which
we charge in these articles are not lapses, defects, errors of common
human frailty, which, as we know and feel, we can allow for. We
charge this offender with no crimes that have not arisen from pas
sions which it is criminal to harbor; with no offences that have not
their root in avarice, rapacity, pride, insolence, ferocity, treachery,
cruelty, malignity of temper; in short, in nothing that does not argue
a total extinction of all moral principle, that does not manifest an
inveterate blackness, dyed ingrain with malice, vitiated, corrupted,
gangrened to the very core. If we do not plant his crimes in those
vices which the heart of man is made to abhor, and the spirit of
all laws, human and divine, to interdict, we desire no longer to
be heard on this occasion. Let everything that can be pleaded
on the ground of surprise or error upon those grounds be pleaded
with success; we give up the whole of those predicaments. We
urge no crimes that are not crimes of forethought. We charge
him with nothing that he did not commit upon deliberation; that
he did not commit against advice, supplication, and remonstrance;
that he did not commit against the direct command of lawful au
thority; that he did not commit after reproof and reprimand, the
reproof and reprimand of those who are authorized by the laws to

IMPEACHMENT OF PRESIDENT JOHNSON 375

reprove and reprimand him. The crimes of Mr. Hastings are
crimes not only in themselves, but aggravated by being crimes of
contumacy. They were crimes not against forms, but against those
eternal laws of justice which are our rule and our birthright. His
offences are not in formal, technical language, but in reality,
in substance and effect, high crimes and high misdemeanors.
(Burke's Works, vol. 7, pp. 13, 14.)

And so the articles charged them, not leaving it to the
declamation or invention of the orators of that great occa
sion. I need not insist, in repetition of the very definite,
concise, and I must think effective argument of the learned
counsel who opened this case for the respondent [Mr. Cur
tis], upon the strict constitutional necessity, under the clause
prohibiting ex post facto laws, and under the clause pro
hibiting bills of attainder, and under the clauses that fix
the trial as for crime in the Constitution under the designa
tion in the articles of enumeration of "treason" and "brib
ery" alone, the highest great crimes against the State that
can be imagined, that you should have here what is crime
against the Constitution and crime against the law, and then
that it should have those public proportions that are indi
cated in the definition of the opening manager, and those
traits of freedom from error and mistake and doubt and
difficulty which belong, in the language of Mr. Burke, to an
arduous public station. And then you will perceive that
under these necessary conditions either this judgment must
be arrived at, that there is no impeachable offence here
which covers and carries with it these conditions, or else
that the evidence offered on the part of the responden£
that was to negative, that was to countervail, that was to
reduce, that was to refute all these qualifications should
have been admitted; and when a court like this has excluded
the whole range of evidence relating to the public character
of the accused and the difficulties of an arduous public
situation, it must have determined that the crimes charged

376 SPEECHES OF WILLIAM MAXWELL EVARTS

do not partake of that quality, or else it would have required
them to have been affirmatively supported by proofs giving
those qualifications, and permitted them to be reduced by
countervailing evidence. And when a court sits only for a
special trial, when its proceedings are incapable of review,
when neither its law nor its fact can be dissected, even by
reconsideration within its own tribunal, the necessary con
sequence is that, when you come to make up your judgment,
either you must take as for granted all that we offered to
prove, all that can fairly be embraced as to come in, in form,
in substance, in color, and in fact, by the actual production
of such proof, so that your judgment may thus proceed; or
else it is your duty before you reach the irrevocable step
of judgment and sentence to resume the trial and call in
the rejected evidence. I submit it to you that a court
without review, without new trial, without exception, and
without possible correction of errors, must deal with evi
dence in this spirit and upon this rule. And unless you arrive,
as I suppose you must, at the conclusion that the dimensions
of this trial relate to the formal, technical infraction of the
statute law that has been adduced in evidence here, it will
be your duty to reopen your doors, call the respondent
again before you, and go into the field of inquiry that has
been touched in declamation, but has not been permitted in
proof.

But Mr. Chief Justice and Senators, there is no better
mode of determining whether a crime accorded to a particu
lar jurisdiction and embraced within a particular prohibition
is to be a high crime and misdemeanor, and what a high
crime and misdemeanor means, and what the lowest level
and the narrowest limit of its magnitude and of its height
must be, than to look at its punishment. Epithets, newly-
invented epithets, used in laws do not alter the substance of
things. Your legislation of the 2d of March, 1867, introduc
ing into a statute law the qualifying word "high," applied

IMPEACHMENT OF PRESIDENT JOHNSON 377

to a misdemeanor, is its first appearance in the statute law
of this country or of the parent country from whom we draw
our jurisprudence. It means nothing to a lawyer. There
is in the conspiracy act of 1861 the same introduction of the
word "high" as applied to the body of the offence there
called "a crime." A "high crime" it is called in this little
conspiracy act of 1861, and there in the one instance and
here in the other an epithet is thrown into an act of Congress.
But, Mr. Chief Justice and Senators, when the legislative
authority in its scale of punishment makes it, as the common
sense of mankind considers, great in its penalty, terrible in
its consequences, that is a legislative statement of what the
quality of the crime is. When you put into a statute that
the offence shall be punished by death you need no epithet
to show that that is a great, a heinous crime; and when the
framers of this Constitution put into it, as the necessary
result of the trial of the President of the United States and
his conviction, that his punishment should be deprivation
of office, and that the public should suffer the necessity of a
new election, that showed you what they meant by "high
crime or misdemeanor."

I know that soft words have been used by every manager
here on the subject of the mercy of our Constitution and the
smallness of the punishment; that it does not touch life,
limb, or property. Is that the sum of penalties? Is that
the measure of oppression of punishment? Why, you might
as well say that when the mother feels for the first time her
new-born infant's breath, and it is snatched from her and
destroyed before her eyes, she has not been deprived of life,
liberty, or property. In a republic where public spirit is the
life, and where public virtue is the glory of the state, and in
the presence of public men possessing great public talents,
high public passions, and ambitions, made up, as this body
is, of men sprung, many of them, from the ordinary condi
tion of American life, and by the force of their native talents.

378 SPEECHES OF WILLIAM MAXWELL EVARTS

and by the high qualities of endurance and devotion to the
public service, who have lifted themselves into this eminent
position, if not the envy, the admiration of all their country
men, it is gravely proposed to you, some of whom from this
elevated position do not disdain to look upon the presi
dency of the United States as still a higher, a nobler, a greater
office, if not of pride, yet of duty, that you shall feel and
say that it is a little thing to take a President from his
public station and strike him to the ground, branded with
high crime and misdemeanor, to be a byword and reproach
through the long gauntlet of history forever and forever.
In the great hall of Venice, where long rows of doges cover
with their portraits the walls, the one erased, the one de
featured canvas attracts to it every eye; and one who has
shown his devotion to the public service from the earliest begin
ning, and you who have attended in equal steps that same as
cent upward, and now, in the very height and flight of your
ambition, feel your pinions scorched and the firm sockets of
your flight melted under this horrid blaze of impeachment,
are to be told, as you sink forever, not into a pool of oblivion,
but of infamy, and as you carry with you to your posterity
to the latest generation this infamy, that it is a trifling
matter, and does not touch life, liberty, or property ! If
these are the estimates of public character, of public fame,
and of public disgrace by which you, the leaders of this coun
try, the most honored men in it, are to record your estimate
of the public spirit and of the public virtue of the American
state, you have indeed written for the youth of this country
the solemn lesson that it is dust and ashes.

Now, what escape is there from this conclusion, in every
true estimate of the character of this procedure and of the
result that you seek to fasten upon this President if justice
requires it, to say that it is trifling and trivial and that formal
and technical crime may lead to it? Do the people of this
country expect to be called to a presidential election in the

IMPEACHMENT OF PRESIDENT JOHNSON 379

middle of a term, altering the whole calendar, it may be, of
the Government, because there has been an infraction of a
penal statute carrying no consequences beyond? It is
accidental, to be sure, that the enforced and irregular elec
tion that may follow upon your sentence at this time con
curs with the usual period of the quadrennial election; but
it is merely accidental. And yet these, Senators, are gravely
proposed to you as trivial results that are to follow from a
judgment on an accusation of the character and of the quality
that I have stated in fact, as compared with the quality
and character that it should bear in truth.

In reference to this criminality of the infraction of the
statute, which in the general remarks that I am making
you will see furnishes the principal basis of charge that I am
regarding, we may see from the statute itself what the
measure of criminality there given is, what the measure
under indictment would be or might be, and then you will
see that that infraction, if it occurred, and if it were against
the law and punishable by the law under the ordinary meth
ods and procedures of our common courts of justice, furnishes
not only no vindication of, but no support to, the notion
that upon it can be ingrafted the accusation of impeachment
the accusation of criminality that is impeachable, any more
than any other topic of comparatively limited and trivial
interest and concern. The provision is not that there must
be a necessary penalty of gravity, but that under the scale
of imprisonment and fine the only limit is that it shall not
exceed $10,000 of pecuniary liability and five years of im
prisonment. Six cents fine, one day's imprisonment, ac
cording to the nature of the offence, within the discretion
of the Court, may satisfy the public justice under indictment
in regard to this offence which is claimed as the footing and
front of the President's fault.

Nor was this open, unrestricted mercy of the law unat
tended to in debate. The honorable senator from Massa-

380 SPEECHES OF WILLIAM MAXWELL EVARTS

chusetts [Mr. Sumner] in the course of the discussion of
this section of the bill, having suggested that it would be
well, at least, to have a moderate minimum of punishment
that would secure something like substance necessarily in the
penal infliction, and having suggested $1,000 or $500 as
the lower limit, basing upon this wise intimation that some
time or other there might be a trial under this section before
a court that had a political bias and the judge might let the
man off without any substantial punishment, he was met
by the honorable senator from Vermont [Mr. Edmunds]
and the honorable senator from Oregon [Mr. Williams]
who seemed to have the conduct of the bill, at least in re
spect to these particular provisions, in the way to which I
will attract your attention. Mr. Sumner said:

Shall we not in this case, where political opinion may intrude
on the bench, make a provision that shall at least secure a certain
degree of punishment?

Mr. Edmunds defended the unlimited discretion of pun
ishment.

Mr. Williams said:

I concur in the views expressed by the senator from Vermont,
for the reason, in the first place, that this is a new offence created
by statute, and it does not define a crime involving moral turpi
tude, but rather a political offence; and there is some ground to
suppose that mistakes may be made under this law by persons in
office; and I think that in such case there should be a large dis
cretion left to the Court.

So much for indictment; so much for the wise reasons of
our legislators; and then, that being the measure and the
reason, there is clamped upon this a necessary, an inevitable,
an inexorable result that is to bring these vast consequences
to the state and to the respondent. But even then you do
not know or understand the full measure of discretion,
unless you attend to the fact that such formal, technical

IMPEACHMENT OF PRESIDENT JOHNSON 381

crimes when made the subject of conviction and of sentence
in obedience to the law are, under a principle of our Consti
tution and of every other just, I will not say merciful,
government in the world, made subjects of pardon; but
under this process of impeachment, with but one punish
ment, and that the highest in the public fame and character
of men that is known or that can be conceived, we have
this further, this terrible additional quality, that the punish
ment is immitigable, immutable, irreversible, unpardonable,
and no power whatever can lighten or relieve the load with
which an impeached and convicted public servant goes
forth from your chambers in a just exercise of this power of
impeachment with a punishment heavier than he can bear.

And now, what answer is there to this but an answer that
will take a load of punishment and of infamy from him and
place it somewhere else? True it is that if he be unjustly
convicted, if he be convicted for technical and formal faults,
then the judgment of the great nation, of intelligent and in
dependent men, stamps upon his judges the consequences
that they have failed to inflict upon the victim of their power.
Then it is that the maxim si innocens damnatur, judex bis
damnatur, finds its realization in the terrors of public opinion
and the recorded truths of history.

I have introduced these considerations simply to show
you that these notions, that, if you can prove that a man has
stumbled over the statute, it is essential that he should bear
these penalties and these consequences, find no support in
reason, none in law, none in the Constitution, none in the
good sense of this high tribunal, none in the habits and views
of the great people whom we represent. Indeed, we should
come under the condemnation of the speaker in Terrence
if we were to seek upon this narrow, necessary view, as it is
urged, of law, such consequences as I have stated : Summum
jus soepe summa est malitia, an extremity of the law is often
the extremity of wickedness.

382 SPEECHES OF WILLIAM MAXWELL EVARTS

And now I am prepared to consider the general traits and
qualities of this offence charged; and I shall endeavor to
pursue in the course of my argument a consideration, per
haps not always formal nor always exactly defined, of three
propositions :

1. That the alleged infractions of these penal statutes are
not in themselves, nor in any quality or color that has been
fastened upon them by the evidence in this cause, impeach
able offences.

2. Having an application to the same conclusion, that
whatever else there is attendant, appurtenant, or in the
neighborhood of the subjects thus presented to your consid
eration, they are wholly political, and not the subject of
jurisdiction in this court or in any court, but only in the
great forum of the popular judgment, to be debated there at
the hustings and in the newspapers, by the orators and the
writers, to whom we are always so much indebted for cor
rect and accurate views on subjects presented for such
determination. If I shall have accomplished this I shall
have accomplished everything. I shall have drawn atten
tion to the true dimensions in a constitutional view of the
crime alleged even if it has been committed, and shall have
shown by a reflex application of the argument that it is
mere error and confusion, perhaps pardonable in an impeach
ing authority, but unpardonable in a court of judgment,
to confound things political with things criminal.

And then, third, I shall ask your attention to the precise
traits and facts as disclosed in the evidence charged in the
articles, and bring you, I think, to a safe, an indisputable,
firm, and thorough conclusion that even the alleged infrac
tions of penal law have none of them, in fact, taken place.

Now, let us look at this criminality in the point upon
which, in the largest view of any evidence in support of it
given on the part of the managers, it must turn. We must
separate, at least for the purpose of argument, the inuendoes,

IMPEACHMENT OF PRESIDENT JOHNSON 383

the imputations, the aggravations that find their place only
in the oratory of the managers, or only in your own minds
as conversant with the political situation and enlisted
zealously in the rightful controversies which belong to it as a
political situation, and we are then to treat the subject in
this method: that up to twelve o'clock on February the
21st, 1868, the President was innocent and unimpeachable,
and at one o'clock on the same day he was guilty and im-
peachable of the string of offences that fill up all the articles,
except that devoted to the speeches, the tenth; for whatever
he did was done then at that point of time, leaving out the
Emory article, which relates to a conversation on the morn
ing of the 22d, and which I also should have excepted from
these observations. What he did was all in writing. What
he did was all public and official. What he did was commu
nicated to all the authorities of the Government having rela
tion to the subject. Therefore you have at once proposed
for your consideration a fault, not of personal delinquency,
not of immorality or turpitude, not one that disparages in
the judgment of mankind, not one that degrades or affects
the position of the malefactor; it is, as Mr. Senator Williams
truly said, a "new offence," also, an offence "not involving
turpitude, and rather of a political character."

Now, too, upon these proofs the offence carries no conse
quences beyond what its action indicates, to wit: a change
in the head of a department. It is not a change of the depart
ment. It is not an attempt to wrest a department or apply
an office against the law, contrary to the regulations of the
Government, and turn its power against the safety or peace
of the state; not in the least. Whatever imaginations may
suggest, whatever invective and opprobrium may intimate,
the fact is that it had no other object, had no other plan,
would have had no other consequences — I mean within the
limits of this indictment and of this proof — than to substi
tute for Mr. Stanton some other citizen of the United States

384 SPEECHES OF WILLIAM MAXWELL EVARTS

that, by and with the advice and consent of the Senate,
should be approved for that high place, or to fill it, until
that advice and consent should be given, by some legal ad
interim holder of the office, not filling it, but discharging its
duties.

If, then, the removal had been effected, if the effort to
assert a constitutional authority by the President had been
effectual, no pretence is made, or can be made, that anything
would have been accomplished that could be considered as a
turning of the Government or any branch of its service out
of the authority of law. Neither did it in purpose or con
sequences involve any change in the policy of the Executive
of the United States in the War Department or in its man
agement. Whatever there might have been of favor or sup
port in public opinion, in political opinion, in the wishes and
feelings of the Congresses of the United States in favor of
Mr. Stanton for that post, and however well deserved all
that might be, Senators cannot refuse to understand that
that does not furnish a reason why the offence committed
by a change of the head of a department should be exag
gerated into a crime against the safety of the State.

But I think we may go further than that, and say that
however great may have been the credit with the houses of
Congress and with the people, or with the men of his own
party, which the Secretary of War, Mr. Stanton, enjoyed, it
cannot be denied that there was a general and substantial
concurrence of feeling in this body, among all the public
men in the service of the Government, and among the citizens
in general, that the situation disclosed to public view and
public criticism, of an antagonism between the head of a
department and the President of the United States, was
not suitable to the public service, and was not to be encour
aged as a situation in the conduct of the Executive Govern
ment, and that there was a general opinion among thought
ful and considerate people that, however much the politics

IMPEACHMENT OF PRESIDENT JOHNSON 385

of the Secretary of War might be regarded as better than
the politics of the President, if we would uphold the frame
of Government and recognize the official rights that belong
to the two positions, it was a fair and just thing for the
President to expect that the retirement should take place
on the part of the Secretary, rather than that he, the Presi
dent, should be driven to a forced resignation himself, or
to the necessity of being maimed and crippled in the conduct
of the public service.

It follows necessarily, then, that the whole criminality, in
act, in purpose, and in consequence, that in this general
survey we can attach to the imputed offence, is a formal con
travention of a statute. I will not say how criminal that
may be. I will not say whether absolute, undeviating,
inflexible, perfect obedience to every law of the land may
not be exacted under the penalty of death from everybody
holding public station. That is matter of judgment for
legislators; but nevertheless the morality, the policy, the
quality of the transaction cannot be otherwise affected than
so far as the actual punishments of the statute are made
applicable. When you consider that this new law, thus
passed, really "reverses the whole action of this govern
ment," in the language of senators and representatives who
spoke in its behalf during its passage; that, in the language
of the same debaters, it "revolutionizes the practice of the
government;" and when you consider that the only person
in the United States that this law, in respect to the removal
from office, was intended to, or by its terms could, affect, was
the President of the United States; that nobody else was
subject to the law; that it was made a rule, a control, a
restraint, a mandate, a direction to nobody else in the
United States except the President, just as distinctly as if it
had said in its terms, "If the President of the United States
shall remove from office he shall be punished by fine and
imprisonment;" and when you know that, by at least de-

27

386 SPEECHES OF WILLIAM MAXWELL EVARTS

bated and disputed contests, it was claimed that the Presi
dent of the United States had the right to remove, and that
an inhibition upon that right was a direct assertion of
congressional authority aimed at the President in his public
trust, duty, and authority of carrying on the Executive
Government, you can then at once see that by a necessary
exclusion and conclusion, however much the act may have
been against the law in fact, as on subsequent judgment may
be held by this or any other court, yet it was an act of that
nature, forbidden under those circumstances, and to be at
tempted under those obligations of duty, if attempted at
all, which gave it this quality, and you see at once that no
rhetoric, that no argument, that no politics whatever can
fix upon the. offence, completed or attempted, any other
quality than this : a violation of a law, if it shall be so held,
in support of and in obedience to the higher obligation of the
Constitution. Whenever anybody puts himself in that posi
tion, nobody can make a crime of it in the moral judgment,
in the judicial determination. In sentence and measure
of punishment, at least, if not in formal decision and judg
ment, no man can make a crime of it.

We are treated to the most extraordinary view on the
subject of violating what is called an unconstitutional law.
Why, nobody ever violates an unconstitutional law, because
there never is any such obstacle to a man's action, freedom,
duty, right, as an unconstitutional law. The question is
whether he violates law, not whether he violates a written
paper published in a statute-book, but whether he violates
law; and the first lessons under a written Constitution are
and must be that a law unconstitutional is no law at all.
The learned manager, Mr. Boutwell, speaks of a law being,
possibly, he says, capable of being annulled by the judgment
of the Supreme Court. Why, the Supreme Court never
annuls a law. There is not any difference in the binding
force of the law after the Supreme Court has annulled it, as

IMPEACHMENT OF PRESIDENT JOHNSON 387

he calls it, from what there was before. The Supreme
Court has no political function; it has no authority of will
or power to annul a law. It has the faculty of judgment,
to discern what the law is, and what it always has been,
and so to declare it.

Apply it to an indictment under this very statute, and
supposing the law is unconstitutional, for the purpose of
argument, what is the result? Is the man to be punished
because he has violated the law, and the Supreme Court has
not as yet declared it unconstitutional? No; he comes into
court and says, "I have violated no law." The statute is
read; the Constitution is read; and the judge says, "You
have violated no law." That is the end of the matter; and he
does not want to appeal to the discretion of the Court in the
measure of punishment, or to the mercy of the Executive in
the matter of pardon. He has done what was right, and
he needs to make no apology to Congress or anybody else,
and Congress, in so far as it has not protected the public
servant, rather owes an apology to him. I shall consider
this matter more fully hereafter; and now look at it only in
the view of fixing such reduced, and necessarily reduced,
estimate of the criminality imputed, as makes it impossible
that this should be an impeachable offence.

Much has been said about the duty of the people to obey
and of officers to execute unconstitutional laws. I claim
for the President no greater right, in respect to a law that
operates upon him in his public duty, and upon him exclu
sively, to raise a question under the Constitution, to deter
mine what his right and what his duty is, than I claim- for
every citizen in his private capacity when a law infringes
upon his constitutional and civil and personal rights; for to
say that Congress has no right to pass unconstitutional
laws and yet that everybody is to obey them, just as if they
were constitutional, and to be punished for breaking them,
just as if they were constitutional, and to be prevented from

388 SPEECHES OF WILLIAM MAXWELL EVARTS

raising the question whether they are constitutional, by
penal inflictions that are to fall upon them, whether they
succeed in proving them unconstitutional or not, is, of
course, trampling the Constitution, and its defence of those
who obey it, in the dust. Who will obey the Constitution, as
against an act of Congress that invades it, if the act of Con
gress with the sword of its justice can cut off his head and
the Constitution has no power to save him, and nothing
but debate hereafter as to whether he was properly punished
or not? The gentlemen neglect the first, the necessary
conditions of all constitutional government, when they
press upon us arguments of this nature.

But again, the form alleged of infraction of this law,
whether it was constitutional or unconstitutional, is not
such as to bring any person within any imputation, I will
not say of formal infraction of the law, but of any violent,
wilful use and extent of resistance to, or contempt of, the law.
Nothing was done whatever but to issue a paper and have
it delivered, which puts the posture of the thing in this
condition and nothing else: the Constitution, we will sup
pose, says that the President has a right to remove the Sec
retary of War; the act of Congress says the President shall
not remove the Secretary of War; the President says, " I will
issue an official order which will raise the same question be
tween my conduct and the statute that the statute raises be
tween itself and the Constitution." As there is not, and can
not be, and never should be, a reference of a law abstractly to
the revision and determination of the Supreme Court, or of any
other court, which would be making it a council of revision and
of superior and paramount political and legislative author
ity, so when the Constitution and a law are, or are supposed
to be, at variance and inconsistent, everybody upon whose
right this inconsistency intrudes has a right, under the usual
ethical conditions of conduct of good citizenship, to put him
self in a position to act under the Constitution and not under

IMPEACHMENT OP PRESIDENT JOHNSON 389

the law. And thus the President of the United States, as
it is all on paper thus far — the Constitution is on paper,
the law is on paper — issues an order on paper, which is but an
assertion of the Constitution and a denial of the law, and
that paper has legal validity if the Constitution sustains it,
and is legally invalid and ineffectual, a mere imbelle telum, if
the law prohibits it and the law is conformed to the Constitu
tion. Therefore it appears that nothing was done but the
mere course and process of the exercise of right claimed
under the Constitution without force, without violence,
and making nothing but the attitude, the assertion which,
if questioned, might raise the point for judicial determina
tion.

Now, Senators, you are not, you cannot be, unfamiliar
with the principle of our criminal law, the good sense, the
common justice of which, although it sometimes is pushed to
extremes, approves itself to every honest mind, that criminal
punishments, under any form of statute definitions of crime,
shall never be made to operate upon acts, even of force and
violence, that are, or honestly may be believed to be, done
under a claim of right. It is for this purpose that the
animus, the intent, the animus furandi in case of larceny,
the malice prepense in a case of murder, the intent neces
sary in every crime, is made the very substance of the crime,
and nothing is felt to be more oppressive, and nothing has
fewer precedents in the history of our legislation or of our
judicial decisions, than any attempt to coerce the assertion
of peaceable and civil claims of right by penal enactments.
It is for that reason that our communities and our law-givers
have always frowned upon any attempt to coerce the right
of appeal under any restrictions or any penalties of costs of
a character oppressive. Civil rights are rights valuable
and practical, just according as people can avail themselves
of them, they keeping the peace; and the moment you put
the coercion of punishment upon the assertion of a right, a

390 SPEECHES OF WILLIAM MAXWELL EVARTS

claimed right, in a manner not violating the peace and not
touching the public safety, you infringe one of the necessary
liberties of every citizen.

Although I confess that I feel great reluctance, and it is
contrary to my own taste and judgment very much to mingle
what is but a low level of illustration and argument with so
grave and general a subject as determining the dimensions
and qualities of an impeachable offence, yet, on the other
hand, day after day it is pressed upon you that a formal
violation of a statute, although made under the claim of a
constitutional right and duty, honestly felt and possessed
by the President, is nevertheless a ground of impeachment,
not to be impeded or prevented by any of these considera
tions; and hence I am induced to ask your attention to what
is but an illustration of the general principle, that penal
laws shall not be enforced in regard to an intent which is
governed by a claim of right. And this singular case oc
curred: a poacher who had set his wires within the domain
of a lord of the manor had caught a pheasant in his wires;
the gamekeeper took possession of the wires and of the dead
pheasant, and then the poacher approaches him by threats
of violence, which would amount to robbery, not larceny,
takes from him the wires and the dead pheasant, and the
poacher situated in that way on another's dominions, and
thus putting himself in a condition where the humanity of
the law can hardly reach and protect him, is brought into
question and tried for robbery; and Vaughan, Baron, says:

If the prisoner demanded the wires under the honest impression
that he had a right to them, though he might be liable to a trespass
in setting them it would not be a robbery. The gamekeeper had
a right to take them, and when so taken they never could have been
recovered from him by the prisoner; yet, still, if the prisoner acted
under the honest belief that the property in them continued in
himself, I think it is not a robbery. If, however, he used it merely
as a pretense, it would be robbery. The question for the jury is,

IMPEACHMENT OF PRESIDENT JOHNSON 391

whether the prisoner did honestly believe he had a property in
the snares and pheasant or not. (1 Russell on Crimes, 872.)

Thus does the criminal law of a free people distinguish
between technical and actual fault; and what mean the guar
antees of the Constitution, and what mean the principles
and the habits of English liberty, that will not allow any
body enjoying those liberties to be drawn into question
criminally upon any technical or formal view of the law to
be administered by hide-bound authority or judges estab
lished and devoted to the prosecution of crime; what mean
those fundamental provisions of our liberty, that no man
shall be put on trial on an accusation of crime, though for
mally committed, unless the grand jury shall choose to bring
him under inculpation, and that when thus brought under
inculpation, he shall not be condemned by any judge or
magistrate, but the warm and living condemnation of his
peers shall be added to the judicial determination, or he
shall go free? Surely we have not forgotten our rights and
our liberties, and upon what they rest, that we should bring
a President of the United States under a formal apparatus
of iron operation, that by necessity, if you set it agoing, shall,
without crime, without fault, without turpitude, without
moral fault even of violating a statute that he believed to
be a statute binding upon him, bring about this monstrous
conclusion — I do not mean in any condemnation of it, but
monstrous in its dimensions — of depriving him of his office
and the people of the country of an executive head.

RECESS OF THE COURT

I am quite amazed, Mr. Chief Justice and Senators, at
the manner in which these learned managers are disposed
to bear down upon people that obey the Constitution to
the neglect or avoidance of a law. It is the commonest
duty of the profession to advise, it is the commonest duty
of the profession to maintain and defend, the violation

392 SPEECHES OF WILLIAM MAXWELL EVARTS

of a law in obedience to the Constitution; and in the
case of an officer whose duty is ministerial, whose whole
obligation in his official capacity is to execute or to give
free course to a law, even when the law does not bear at all
upon him or his rights, the officer may appeal to the Courts
if he acts in good faith and for the purpose of the public
service, and with a view of ascertaining by the ultimate
tribunal in season to prevent public mischiefs, whether the
Constitution or the law is to be the rule of his conduct, and
whether they be at variance.

Let me ask your attention to a case in Selden's Reports
in the New York Court of Appeals (3 Selden page 9), the
case of Newell, the auditor of the canal department, in error,
against the people. The Constitution of the State of New
York contains provisions restrictive upon the capacity or
power of the legislature to incur public debt. The legis
lature, deeming it, however, within its right to raise money
for the completion of the canals upon a pledge of the canals
and their revenues, not including what may be called the
personal obligation of the State, a dry mortgage as it were,
not involving debt, but only carrying the pledge, undertook
to, and did, raise a loan of $6,000,000. Mr. Newell, the
canal auditor, when a draft was drawn upon him in his offi
cial capacity, which it became him as a ministerial officer,
obedient to the law, to honor and proceed upon, refused it
honor, and raised the question whether this act was consti
tutional. Well, now, he ought to have been impeached!
He ought to have had the senate and the court of appeals of
New York convened on him and been removed from office!
The idea of a canal auditor setting himself up against what
the learned manager calls law! He set himself up in favor
of law and against its contravention, and the question was
carried through the Supreme Court of that State, and that
Court decided that the law was constitutional, but upon
an appeal to the court of appeals that court held it unconsti-

IMPEACHMENT OF PRESIDENT JOHNSON 393

tutional, and the $6,000,000 loan was rolled away as a scroll,
needing to be fortified by an indemnifying proceeding amend
ing the constitution and extending its provisions.

Now, I should like to know if the President of the United
States, who has taken an oath to preserve, protect, and
defend the Constitution in reference to a law that is made
over his head and on his right, and over and on nothing else
in this nation, cannot appeal to the Constitution? And
when he does make the appeal is the Constitution to answer
him, through the House of Representatives, " We admit, for
argument, that the law is unconstitutional; we admit it
operates on you and your trust-right, and nothing else; we
admit that you were going to raise the constitutional ques
tion, and yet the process of impeachment is the peril under
which you do that, and its axe is to cut off your head for
questioning an unconstitutional law that operates upon your
right and contravenes that Constitution which you have
sworn to protect and defend in every department of the
government, on and for the legislature, on and for the judi
ciary, on and for the people, on and for the executive power"?
How will our learned managers dispose of this case of Newell,
the auditor, against the people of the State of New York — a
worthy, an upright, a useful, a prosperous assertion in the
common interest and for the maintenance of the constitu
tion, of a duty to the people?

And are we such bad citizens when we advise that the Con
stitution of the United States may be upheld, and that any
body, without a breach of the peace and in an honest purpose,
may make a case that the instance may be given whereby
the judgment of the Court may be had and the Constitution
saved from violation? Not long since the State of New
York passed a law levying a tax on brokerage sales in the
city of New York of a half or three-fourths per cent, on all
goods that should be sold by brokers, seeking to raise for
the revenue purposes of the State of New York about ten

394 SPEECHES OF WILLIAM MAXWELL EVARTS

million dollars on the brokers' sales of merchandise, which
sales distribute through the operations of that emporium
the commerce of the whole country for consumption through
all the States in the Union. Your sugar, your tea, your
coffee that you consume in the valley of the Mississippi was
to be made to pay a tax in the city of New York to support
the State of New York in its government by that tax; and
they made it penal for any broker to sell without giving a
bond and paying the tax. Was it very wicked for me, when
all the brokers were in this distress, to advise them that the
shortest way to settle that matter was not to give the bond?
And when one of them, one of the most respectable citizens
of the city, was indicted by the grand jury for selling coffee
without giving a bond, and it came before the Courts, in
stead of having, as I supposed when I gave my advice, to
come up to the Supreme Court of the United States to vindi
cate the Constitution of the United States, I had the good
fortune to succeed in the Court of Appeals of the State of
New York itself, that court holding that the law was uncon
stitutional, and the indictment failed. Was I a bad citizen
for saving the Constitution of the United States against
these infractions of law? Was the defendant in the indict
ments a bad citizen for undertaking to obey the Constitu
tion of the United States? Where are your constitutional
decisions — McCulloch vs. Maryland; Brown vs. Maryland;
the bank-tax cases — all these instances by which a constitu
tion is arrayed for the protection of the rights which it
secures? It is always by instances, it is always by acts; and
the only ethical condition is that it shall be done without a
breach of the peace and in good faith.

How is it with people in office that violate, sometimes, the
law? Is it true that they must necessarily be punished for
it? Mr. Lincoln, before the "invasion" or "insurrection"
broke out, had raised the case of the Constitution for the
suspension of the habeas corpus, undertook to arrest a mis-

IMPEACHMENT OF PRESIDENT JOHNSON 395

chief that was going on at Key West, where, through the
forms of peace, an attack was made upon the Government
fort there through the habeas corpus. An excellent way to
take a fort ! I do not know whether the honorable manager
[Mr. Butler], who is so good a lawyer, tried that in all his
military experience or not, but the habeas corpus was
resorted to down in Florida to empty that fort of all its
soldiers, and was succeeding admirably. A judge issued the
habeas corpus; the soldier was brought out, and then he
was free; and so the fort would have been taken by habeas
corpus. President Lincoln suspended the habeas corpus,
violating the law, violating the Constitution. Should he
have been impeached? Is it necessary that a man should
be impeached? What did he do? He suspended it by
proclamation of the 10th of May, 1861, to be found in volume
twelve Statutes at Large, page 1260; and at the opening of
the next session he referred to the fact that the legality of
the measures was questioned, and said they were ventured
upon under a public necessity, and submitted to the judg
ment of Congress whether there should be legislation or not.
That is found on pages 12 and 13 of the Senate Journal,
first session thirty-seventh Congress, 1861.

There were various other acts of this great, heroic, good
President — the arrest of the members of the legislature of
Maryland, never justified by any law or any constitution
that I know of, but wholly justified by duty to the country.
And it so happens, what every statesman knows as the
experience of government, that public action is to be judged
by public men and public officers as private actions are to
be judged by private men, according to the quality of the act,
whether it shall be impeached or whether it shall be indem
nified.

I do not seek this argument as going further than to meet
the necessity which I understand these learned managers
put forth that an infraction of a statute must carry out of

396 SPEECHES OF WILLIAM MAXWELL EVARTS

office any President of the United States who is so guilty.
Why, the very next statute in the book before me, after
the civil-offiee-tenure act, on page 232 of the volume, is an
act to declare valid and conclusive certain proclamations
of the President and acts done in pursuance thereof, or of
his orders, for the suppression of the late rebellion against
the United States. The military commissions had been
declared invalid by the Supreme Court, and we have an act
of indemnity covering a multitude of formal, technical sins
by indemnity and protection to have the same effect as if
the law had been passed before they were performed. So,
therefore, this dry, dead interpretation of law and duty by
which act, unqualified, unscrutinized, unweighed, unmeas
ured, is to form the basis of necessary action of the guillotine
of impeachment, disappears wholly under the clear, bright,
and honest light which true statesmanship sheds upon the
subject.

I may as conveniently at this point of the argument as at
any other pay some attention to the astronomical punish
ment which the learned and honorable manager, Mr.
Boutwell, thinks should be applied to this novel case of
impeachment of the President.*

* At the close of Mr. Boutwell's argument is the following extravagantly rhetori
cal passage:

Travellers and astronomers inform us that in the southern heavens, near the
southern cross, there is a vast space which the uneducated call the hole in the sky,
where the eye of man, with the aid of the powers of the telescope, has been unable
to discover nebulce, or asteroid, or comet, or planet, or star, or sun. In that
dreary, cold, dark region of space, which is only known to be less than infinite by
the evidences of creation elsewhere the Great Author of celestial mechanism has
left the chaos which was in the beginning. If this earth were capable of the senti
ments and emotions of justice and virtue, which in human mortal beings are the
evidences and the pledge of our Divine origin and immortal destiny, it would heave
and throw, with the energy of the elemental forces of nature, and project this
enemy of two races of men into that vast region, there forever to exist in a solitude
eternal as life, or as the absence of life, emblematical of, if not really, that "outer
darkness" of which the Savior of man spoke in warning to those who are the
enemies of themselves, of their race and of their God.

IMPEACHMENT OF PRESIDENT JOHNSON 397

Cicero, I think it is, who says that a lawyer should know
everything, for sooner or later there is no fact in history, in
science, or of human knowledge that will not come into play
in his arguments. Painfully sensible of my ignorance, being
devoted to a profession which "sharpens and does not en
large the mind" I yet can admire without envy the supe
rior knowledge evinced by the honorable manager. Indeed,
upon my soul, I believe he is aware of an astronomi
cal fact which many professors of that science are wholly
ignorant of. But nevertheless, while some of his honorable
colleagues were paying attention to an unoccupied and un
appropriated island on the surface of the seas, Mr. Manager
Boutwell, more ambitious, had discovered an untenanted
and unappropriated region in the skies, reserved, he would
have us think, in the final councils of the Almighty, as the
place of punishment for convicted and deposed American
Presidents.

At first I thought that his mind had become so "enlarged"
that it was not "sharp" enough to discover the Constitution
had limited the punishment; but on reflection I saw that he
was as legal and logical as he was ambitious and astro
nomical, for the Constitution has said "removal from
office," and has put no limit to the distance of the removal
so that it may be, without shedding a drop of his blood, or
taking a penny of his property, or confining his limbs, instant
removal from office and transportation to the skies. Truly,
this is a great undertaking; and if the learned manager can
only get over the obstacles of the laws of nature the Con
stitution will not stand in his way. He can contrive no
method but that of a convulsion of the earth that shall
project the deposed President to this infinitely distant space;
but a shock of nature of so vast an energy and for so great
a result on him might unsettle even the footing of the firm
members of Congress. We certainly need not resort to so
perilous a method as that. How shall we accomplish it?

398 SPEECHES OF WILLIAM MAXWELL EVARTS

Why, in the first place, nobody knows where that space is
but the learned manager himself, and he is the necessary
deputy to execute the judgment of the Court.

Let it then be provided that in case of your sentence of
deposition and removal from office the honorable and astro
nomical manager shall take into his own hands the execution
of the sentence. With the President made fast to his broad
and strong shoulders, and, having already essayed the flight
by imagination, better prepared than anybody else to execute
it in form, taking the advantage of ladders as far as ladders
will go to the top of this great Capitol, and spurning then
with his foot the crest of Liberty, let him set out upon his
flight while the two houses of Congress and all the people
of the United States shall shout, "Sic itur ad astro,"

But here a distressing doubt strikes me; how will the man
ager get back. He will have got far beyond the reach of
gravitation to restore him, and so ambitious a wing as his
could never stoop to a downward flight. Indeed, as he
passes through the constellations, that famous question of
Carlyle by which he derides the littleness of human
affairs upon the scale of the measure of the heavens, "What
thinks Boeotes as he leads his hunting dogs up the zenith
in their leash of sidereal fire?" will force itself on his notice.
What, indeed, would Bceotes think of this new constella
tion?

Besides, reaching this space, beyond the power of Congress
even "to send for persons and papers" how shall he return,
and how decide in the contest, there become personal and
perpetual, the struggle of strength between him and the
President? In this new revolution, thus established forever,
who shall decide which is the sun and which is the moon?
Who determine the only scientific test — which reflects the
hardest upon the other?

If I have been successful at all in determining the general
latitude of the imputed offence as not bringing it, under the

IMPEACHMENT OF PRESIDENT JOHNSON 399

circumstances which this evidence attaches to it, to the qual
ity and grade of impeachable offences, I may now be pre
pared, and I hope with some commendable brevity, to notice
what I yet regard as important to the course of my argu
ment, and what I assigned as the second topic of it, to show
that all else is political; but I wish to draw your attention
also to what I think is a matter of great moment, a matter
of great concern and influence for all statesmen, and for all
lovers of the Constitution and of the country — to the par
ticular circumstances under which the two departments of
the Government now brought in controversy are placed. I
speak not of persons, but of the actual constitutional pos
session of the two departments.

The office of President of the United States, in the view
of the framers of the Constitution, and in the experience of
our national history, and in the esteem of the people, and in
the ambition of all who aspire to that great place by worthy
means, is an office of great trust and power. It has great pow
ers. They are not monarchical or tending to monarchy, be
cause the tenure of the office, its source of original commission,
and its return of the trust to those who control it, and its
amenability under the Constitution to this process of im
peachment and the authority of Congress, save it from being
at all dangerous to the liberties of the nation. Yet it is,
and is intended to be, an office of great authority, and the
Constitution in its co-ordinate department cannot be sus
tained without maintaining all the authority that the Con
stitution has intended for this executive office. But it
depends for its place in the Constitution upon the fact, the
practical fact, that its authority is committed by the suffrage
of the people, and that when this authority is exerted it is
not by individual purpose or will, or upon the mere strength
which a single individual can oppose to the collective power
of the Congress of the United States. It is because and as
the people, who by their suffrage have raised the President

400 SPEECHES OF WILLIAM MAXWELL EVARTS

to his place, are behind him, holding up his hands, speaking
with his voice, sustaining him in his high duties, that the
President has the place and can maintain it under the
Constitution.

This great power is safe then to the people for the reasons
I have stated, and it is safe to the President because the
people are behind him and have just exhibited their confi
dence by the suffrage that has promoted him. When,
however, alas, our Constitution comes to this trial that one
is lifted to the presidential office who has not received the
suffrage of the people for that office, then at once discord,
dislocation, deficiency, difficulty show themselves; then at
once the great powers of the office which were consonant
with a free constitution and with the supremacy of popular
will, by the fact that for a brief term the breath of life of the
continuing favor of the people gave them efficacy and
strength, find no support in fact. Then it is that in the
criticisms of the press, in the estimates of public men, in
the views of the people, these great powers, strictly in trust
and within the Constitution, seem to be despotic and per
sonal. And then, if we will give due force to another diffi
culty that our system of vicious politics has introduced, and
that is that in the nomination for the two offices, selecting
always the true leader of the popular sentiment of the time
for the place of President, we look about for a candidate for
the Vice-Presidency to attract minority and to assuage differ
ences, and to bring in inconsistent support, and make him
different from the President in political position and in
general circumstances for popular support, and couple with
the fact that I have spoken of in the Constitution, and which
belongs to it, this vice in our politics, then when the Vice-
President becomes President of the United States, not only
is he in the attitude of not having the popular support for
the great powers of the Constitution, but he is in the condi
tion of not having the party support for the fidelity and main-

IMPEACHMENT OF PRESIDENT JOHNSON 401

tenance of his authority that are necessary. Then, adhering
to his original opinions, to the very opinions and political
attitude which form the argument for placing him in the
second place of authority, he is denounced as a traitor to
his party, and is watched and criticised by all the leaders of
that party.

I speak not particularly in reference to the present
presidential term and its incumbent, and the actual condi
tion of politics here; I speak of the very nature of the case.
All the public men, all the ambitious men, nay, all the men
interested in the public service, in carrying on the Govern
ment for the purposes and with the views, in the interest of
duty, of the party, have made their connections, and formed
their views, established their relations with the President
who has disappeared. They then are not in the attitude of
support, personal or political, that may properly be main
tained among the leaders of a party, and that is implied
in the fact that an election has taken place by the joint
efforts, crowning in the final result the President of the selec
tion of the people. Then it is that high words are inter
changed. Then it is that ambitious men, who had framed
their purposes, both for the present and for the future, upon
the footing of the presidential predominance that had been
secured by the election, find these plans dislocated and dis
turbed; and then it is that if wisdom and prudence and the
personal qualities of pacification and of accommodation and
of attraction are wanting upon the one side and the other,
terrible evils threaten the conduct of the Government and
the peace of the State. It was thus, as we all know by look
ing back to the experience of the whig party, that differ
ences, even in times of peace and of quiet, had been urged
so far in the presidency of Mr. Tyler, that an impeachment
was moved against him in the House of Representatives,
and had more than one hundred supporters; and yet when it
was all over, nobody, I think, could have dreamed that there

402 SPEECHES OF WILLIAM MAXWELL EVARTS

was anything in the conduct of Mr. Tyler, in the matter
complained of, that was just ground for impeachment.
So, too, in great part during the incumbency of Mr. Fillmore,
elevated to the presidency, his action and his course, tem
pered and moderated as it was by some of the personal quali
ties that I have stated, was yet carried on in resistance to the
leading ideas of the party that had raised him to power.

Then the opposition, seizing upon this opportunity, en
courage the controversy, urge on the quarrel, but do not
espouse it, and thus it ends in the President being left with
out the support of the currents of authority that underlie
and vivify the Constitution of the United States — the favor
of the people; and so when this unfortunate, this irregular
condition of the executive office concurs with times of great
national juncture, of great and serious oppression and diffi
culty of public affairs, then at once you have at work the
special, the peculiar, the irregular operation of forces that
expose the Constitution, left unprotected and undefended
with the full measure of support that every department of
the Government should have to resist the other, pressing on
to dangers and to difficulties that may shake and bring down
the pillars of the Constitution itself.

I suggest this to you as wise men, to understand how out of
circumstances, for which no man is responsible, attributable
to the working of the Constitution itself, in this effort to
provide a successor, and to the inattention paid to it in the
suffrages of the people and the selections of the politicians,
how there is a weakness, and a special weakness, that the
presidency is, as it were, an undefended fort, and see to it
that the invasion is not urged and made successful by the
temptation thus presented.

This exception, weakness of the presidency under our
Constitution, is encountered in the present state of affairs
by an extraordinary development of party strength in the
Congress. There are in the Constitution but three barriers

IMPEACHMENT OF PRESIDENT JOHNSON 403

against the will of a majority of Congress within the scope
of their authority. One is that it requires a two-thirds vote
to expel a member of either house; another that a two-thirds
vote is necessary to pass a law over the objections of the
President; and another, that a two-thirds vote of the Senate,
sitting as a court for the trial of impeachment, is requisite to
a sentence. And now how have these two last protections
of the executive office disappeared from the Constitution in
its practical working by the condition of parties that has
given to one the firm possession by a three-fourths vote, I
think in both houses, of the control of the action of each
body of the legislature? Reflect upon this. I do not touch
upon the particular circumstance that the non-restoration
of the southern States has left your numbers in both houses
of Congress less than they might under other circumstances
be. I do not calculate whether that absence diminishes or
increases the disproportion that there would be. Possibly
their presence might even aggravate the political majority
which is thus arrayed and thus overrides practically all the
calculations of the presidential protection through the guar
antees of the Constitution; for, what do the two-thirds
provisions mean? They meant that in a free country,
where elections were diffused over a vast area, no congress
man having a constituency of over seventy or eighty thou
sand people, it was impossible to suppose that there would
not be a somewhat equal division of parties, or impossible
to suppose that the excitements and zeal of party could
carry all the members of it into any extravagance. I do not
call them extravagances in any sense of reproach; I merely
speak of them as the extreme measures that parties in poli
tics, and under whatever motives, may be disposed to adopt.
Certainly, then, there is ground to pause and consider,
before you bring to a determination this great struggle
between the co-ordinate branches of the Government, this
agitation and this conclusion in a certain event of the ques-

404 SPEECHES OF WILLIAM MAXWELL EVARTS

tion whether the co-ordination of the Constitution can be
preserved. Attend to these special circumstances and deter
mine for yourselves whether under these influences it is best
to urge a contest which must operate upon the framework
of the Constitution, and its future, unattended by any excep
tions of a peculiar nature that govern the actual situation.
Ah, that is the misery of human affairs, that the stress
comes and has its consequence when the system is least
prepared to receive it. It is the misery that disease, casual,
circumstantial, invades the frame when health is depressed
and the powers of the constitution to resist it are at the
lowest ebb. It is that the gale rises and sweeps the ship to
destruction when there is no sea-room for it and when it is
upon a lee-shore. And if concurrent with that danger to the
good ship her crew be short, her helm unsettled, and disorder
begins to prevail, there comes to be a final struggle for the
maintenance of mastery against the elements and over the
only chances of safety, how wretched is the condition of
that people whose fortunes are embarked in that ship of
state!

What other protection is there for the presidential office
than these two-thirds guarantees of the Constitution that
have disappeared? The Supreme Court placed there to
determine, among the remarkable provinces of its jurisdiction,
the lines of separation and of duty and of power under our
Constitution between the legislature and the President.
Ah! under this evidence, received and rejected, the very
effort of the President was, when the two-thirds majorities
had urged the contest against him, to raise a case for the
Supreme Court to decide; and then the legislature, coming
in by its special condition of impeachment, intercepts the
effort, and brings his head again within the mere power of
Congress, where the two-thirds rule is equally ineffectual
as between the parties to the contest.

This is matter of grave import, of necessary consideration,

IMPEACHMENT OF PRESIDENT JOHNSON 405

and which, with the people of this country, with watchful
foreign nations, and in the eyes of history, will be one of the
determining features of this great controversy; for great as
is the question in the estimate of the managers or of ourselves
or of the public intelligence of this people, of how great the
power should be on one side or the other, with Congress or
with the President, that question sinks into absolute insig
nificance compared with the greater and higher question, the
question that has been in the Constitution, that has been in
the minds of philosophers, of publicists, and of statesmen
since it was founded, whether it was in the power of a written
constitution to draw lines of separation and put up buttresses
of defence between the co-ordinate branches of the Govern
ment? And with that question settled adversely with a
determination that one can devour, and having the power,
will devour the other, then the balances of the American
Constitution are lost and lost forever. Nobody can rein
state in paper what has once been struck down in fact.
Mankind are governed by instances, not by resolutions.

And then, indeed, there is placed before the people of this
country either despair at the theory of paper constitutions,
which have been derided by many foreign statesmen, or
else an attempt to establish new balances of power by which,
the poise of the different departments being more firmly
placed, one can be safe against the other. But who can be
wiser than our fathers? Who can be juster than they?
Who can be more considerate or more disinterested than
they? And if their descendants have not the virtue to main
tain what they so wisely and so nobly established, how can
these same descendants hope to have the virtue and the
wisdom to make a better establishment for their posterity?

Nay, Senators, I urge upon you to consider whether you
will not recoil from settling so tremendous a subject under
so special, so disadvantageous, so disastrous circumstances
as I have portrayed to you in the particular situation of

406 SPEECHES OF WILLIAM MAXWELL EVARTS

these branches of the Government. A stronger Executive,
with an absolute veto, with a longer term, with more per
manent possession and control of official patronage, will be
necessary for the support of this executive department, if
the wise and just and considerate measure of our ancestors
shall not prove, in your judgment, sufficient; or, if that be
distasteful, if that be unacceptable, if that be inadmissible,
then we must swing it all over into the omnipotence of
Congress, and recur to the exploded experiment of the con
federation, where Congress was executive and legislative, all
in one.

There is one other general topic, not to be left unnoticed
for the very serious impression that it brings upon the politi
cal situation which forms the staple — I must say it — of the
pressure on the part of the managers to make out a crime, a
fault, a danger that should enlist your action in the terrible
machinery of impeachment and condemnation. I mean the
very peculiar political situation in the country itself and
in the administration of this Government over the people
of the country, which has been the womb from which has
sprung this disorder and conflict between the departments
of the government. I can, I think, be quite brief about it,
and certainly shall not infringe upon any of the political
proprieties of the occasion.

The suppression of an armed rebellion and the reduction
of the revolted States to the power of the Government, when
the region and the population embraced in the rebellion
were so vast, and the head to which the revolt had come was
so great, and the resistance so continuous, left a problem of
as great difficulty in human affairs as was ever proposed to
the actions of any government. The work of pacification
would have been a severe task for any government after so
great a struggle, when so great passions were enlisted, when
so great wounds had been inflicted, when so great discontents
had urged the controversy, and so much bitterness had sur-

IMPEACHMENT OF PRESIDENT JOHNSON 407

vived its formal settlement; but wonderful to say, with
this situation, so difficult as to surpass almost the powers of
government as exhibited in any former instance in the his
tory of the world, there occurred a special circumstance that
by itself would have tasked all the resources of statesman
ship under even a simple government. I mean the emanci
pation of the slaves, which had thrown four millions of human
beings, not by the processes of peace, but by the sudden blow
of war, into the possession of their freedom, which had
changed at once, against their will, the relation of all the
rest of the population to these men that had been their
slaves.

The process of adaptation of society and of law to so grave
a social change as that, even when accomplished in peace,
and when not disturbed by the operations of war and by the
discontents of a suppressed rebellion, are as much as any
wisdom or any courage, or any prosperity that is given to
government, can expect to ride through in safety and peace.
When, then, these two great political facts concur and press
upon the Government that is responsible for their conduct,
how vast, how difficult, how intractable and unmanageable
seems the posture !

But this does not represent the measure or even the prin
cipal feature of the difficulty. When the government, whose
arms have triumphed and suppressed resistance is itself, by
the theory and action of the Constitution, the government
that, by peaceful law, is to maintain its authority, the process
is simple; but under our complex Government, according to
the theory and the practice, the interests and the feelings,
the restored Constitution surrenders their domestic affairs
at once to the local governments of the people who have been
in rebellion. And then arises what has formed the staple
of our politics for the last four years, what has tried the
theory, the wisdom, the courage, the patriotism of all. It
is, how far, under the Constitution as it stands, the General

408 SPEECHES OF WILLIAM MAXWELL EVARTS

Government can exercise absolute control in the transition
period between war and absolute, restored peace, and how
much found to be thus unmanageable shall be committed
to changes of the Constitution. And when we understand
that the great controversy in the formation of the Constitu
tion itself was how far the General Government should be
intrusted with domestic concerns, and when the final triumph
and the general features of the Constitution that the people
of the States were not willing, in the language of Mr. Ells
worth, to intrust the General Government with their domestic
interests, we see at once how wide, how dangerous, how
difficult the arena of controversy, of constitutional law and
of difference of opinion as to what was or is constitutional,
and if it be not, of what changes shall be or ought to be
made in the Constitution to meet the practical situation.

Then when you add to this that as people divide on these
questions, and as the practical forces on one side and the
other are the loyal masses and the rebel masses, whoever
divides from his neighbor, from his associate, from his party
adherents in that line of constitutional opinion and in that
line of governmental action, which seems to press least
changes upon the Constitution and least control upon the
masses lately in rebellion, will be suspected and charged and
named and called an ally of traitors and rebels, you have at
once disclosed how our dangerous politics have been brought
to the head in which these names of "traitor" and of "rebel,"
which belong to war, have been made the current phrases of
political discussion.

I do not question the rectitude nor do I question the
wisdom of any positions that have been taken as matter of
argument or as matter of faith or as matter of action in the
disposition of this peculiar situation. I only attract your
attention to the necessities and dangers of the situation
itself. We were in the condition in which the question of
the surrender to the local communities of their domestic

IMPEACHMENT OF PRESIDENT JOHNSON 409

affairs, which the order of the Constitution had arranged for
the peaceful situation, became impossible without the gravest
dangers to the State, both in respect to the public order and
in respect to this changed condition of the slave.

In English history the Commons were urged, after they
had rejected the king from the British constitution and found
the difficulty of making things work smoothly, stare supra
antiquas vias; but, said Sergeant Maynard, "It is not the
question of standing upon the ancient ways, for we are not
on them." The problem of the Constitution is, as it was
then, how to get upon the ancient ways from these paths
that disorder and violence and rebellion had forced us into;
and here it was that the exasperations and the exacerbations
of politics came up mingling with charges of infidelity to
party and with treason, moral treason, political treason, I
suppose, to the state. How many theories did we have?

In this Senate, if I am not mistaken, one very influential
and able and eloquent senator was disposed to press the
doctrines of the Declaration of Independence into being
working forces of our constituted liberty, and a sort of pre-
constitutional theory was adopted to suit the logical and
political difficulties of the case. In another House a great
leader was disposed to put it upon the trans-constitutional
necessities that the situation itself imposed in perfect peace
as in absolute and flagrant war. And thus it was that minds
trained in the old school, attached to the Constitution, un
able as rhetoricians or as reasoners to adopt these learned
phrases and these working theories of preconstitutional or
trans-constitutional authority and obligation, were puzzled
among the ruins of society that the war had produced; and
thus, as it seems to me, we find these concurring dangers
leading ever to an important and necessary recognition, by
whoever has to deal with them, of the actual and practical
influences that they have upon the controversy.

And now let me urge here that all this is within the prov-

410 SPEECHES OF WILLIAM MAXWELL EVARTS

ince of politics; and a free people are unworthy of their
freedom and cannot maintain it if their public men, their
chosen servants, are not able to draw distinctions between
legal and constitutional offence and odious or even abomi
nable politics. Certainly it is so. Idem sentire de republicd,
to agree in opinion concerning the public interest is the
bond of one party, and diversity from those opinions the
bond of the other; and where passions and struggles of force
in any form of violence or of impeachment as an engine of
power come into play, then freedom has become license, and
then party has become faction, and those who do not with
hold their hand until the ruin is accomplished will be subject
to that judgment that temperance and fortitude and patience
were not the adequate qualities for their conduct in the
situation in which they were placed. Oh, why not wise
enough to stay the pressure till adverse circumstances shall
not weigh down the state? Why not in time remember the
political wisdom —

Beware of desperate steps. The darkest day,
Live till to-morrow, will have passed away.

I hold in my hand an article from the Tribune, written
under the instructions of this trial and put with great force
and skill. I do not propose to read it. I bring it here to
show and to say that it is an excellent series of articles of
impeachment against the President of the United States
within the forum of politics for political repugnancy and
obstruction, and an honest confession that the technical
and formal crimes included in these articles are of very
paltry consideration. That is an excellent article of im
peachment, demanding by process suitable to the forum, an
answer; and for the discussions of the hustings and of the
election, there it belongs; there it must be kept. But this
being a Court, we are not to be tried for that in which we are
not inculpated. How wretched the condition of him who

IMPEACHMENT OF PRESIDENT JOHNSON 411

is to be thus oppressed by a vague, uncertain shadow which
he cannot oppose or resist ! If the honorable managers will
go back to the source of their authority, if they will obtain
what was once denied them, a general and open political
charge, it may, for aught I know, be maintainable in law;
it may be maintainable in fact; but then it would be brought
here; it would be written down; its dimensions would be
known and understood; its weight would be estimated; the
answer could be made.

And then your leisure and that of the nation being occu
pied with hearing witnesses about political differences and
the question of political repugnance and obstructions upon
the side of the President, those who should be honored with
his defence in that political trial would at least have the
opportunity of reducing the force of the testimony against
them, and of bringing opposing and contravening proofs;
and then, at least, if you would have a political trial, you
would have it with name and with substance to rest upon.
But the idea that a President of the United States is to be
brought into the procedure of this Court by a limited accusa
tion, found "not guilty" under that, and convicted on an
indictment that the House refused to sustain, or upon that
wider indictment of the newspaper press, and without an
opportunity to bring proof or to make arguments on the
subject, seems to us too monstrous for any intelligence within
or without this political circle, this arena of controversy, to
maintain for a moment.

I may hope, somewhat briefly, to draw your attention to
what lies at the basis of the discussion of the power and
authority that may be rightfully exercised or reasonably be
assumed in the action of the President to be exercised, even
if it should prove erroneous within the premises of this mat
ter between the two branches of the Government.

The co-ordination of the powers of government is not only
the greatest effort in the frame of a written constitution, but

412 SPEECHES OF WILLIAM MAXWELL EVARTS

I think it must be conceded that as it occupies the main
portion of the Constitution itself, so it has been regarded by
all competent critics, at home and abroad, to have been a
work most successfully accomplished by the framers of our
Government. Indeed, if you will look at the Constitution,
you will find that beyond that very limited though very
important service, of dividing what belongs to government
and what shall be left to the liberties of the people, and then
discriminating between what shall be accorded to the general
government and what shall be left to the domestic govern
ments of the States, the whole service of the Constitution is
to build up these three departments of the Government so
that they shall have strength to stand as against the others,
and not strength to encroach or overthrow.

Much has been said about Congress as being the great
repository of power. Why, of course it is. It is the reposi
tory of power and of will, and there is no difficulty in making
Congress strong enough. Congress, that must be intrusted
with all the strings of power and furnished with all its re
sources, the effort of the Constitution is to curb and restrain;
and so you will find that almost all the inhibitions of the
Constitution are placed upon Congress — upon Congress in
withholding it from power over the people; upon Congress
in withholding it from power over the States; upon Congress
in withholding it from power over the co-ordinate branches;
and, nevertheless, by a necessary and absolute deposit of
authority in Congress, it is left master of the whole. This
power of Parliament in the British constitution makes the
Commons masters of the Government. To what purpose is
it to provide that the justices of the Supreme Court shall
hold their tenure for life, and that their salaries shall not be
diminished during the term of their service, when Congress,
by an undoubted constitutional power, may omit and refuse
to appropriate one dollar to the support of any particular
justice during any particular year or series of years? Never-

IMPEACHMENT OF PRESIDENT JOHNSON 413

theless, the Government is to be administered by men, and
in an elective government the trust is that the selected
agents of the people will be faithful to their interest and will
be endowed with sufficient intelligence to protect them.

But simple as is the constitution of the judiciary, and
needing no care, when you come to the executive authority,
arises the problem which has puzzled, does puzzle, will
puzzle all framers of government having no source and no
ideas of authority, except what springs from the elective
suffrage. You have the balance of the British constitution
between the Crown and the Parliament, because it rests
upon ideas and traditions and experience which have framed
one portion of the Government as springing up from the
people and in their right, and the other portion of the Govern
ment as descending from Divine authority and in its right;
and you have no difficulty in enlarging, confirming, and
bracing up the authority of Parliament, provided you leave
standing the authority and majesty of the throne. But
here the problem is, how, without the support of nobility,
of the fountain of honor, of time, of strength, of inheritance,
how under a suffrage and for a brief period to make an execu
tive that is strong enough to maintain itself against the
contentions of the Constitution.

Under these circumstances, and adjusting the balance as
it is found in the Constitution, our ancestors disposed of the
question. It has served us to this time. Sometimes, in
the heat of party, the Executive has seemed too strong;
sometimes, in the heat of party, Congress has seemed too
strong; yet every contest and every danger passes away,
managed, administered, controlled, protected by the great,
superior, predominant interest and power of the people
themselves. And the essence of the Constitution is, that
there is no period granted by it of authority to the Senate
in their six years' term, to the President in his four years'
term, to the House of Representatives in their two years'

414 SPEECHES OF WILLIAM MAXWELL EVARTS

term, no period that cannot be lived through in patience
subordinate and obedient to the Constitution; and that, as
was said in the debate which I read from the convention,
applied to the particular topic of impeachment, there will
be no danger when a four years' recurring election restores
to the common master of Congress and the Executive the
trust reposed, that there will be a temptation to carry, for
political controversy and upon political offence, the sword of
the Constitution, and make it peremptory and final in the
destruction of the office.

I beg leave, in connection with this subject, its delicacy,
its solicitudes in the arrangement of constitutional power,
to read two passages from a great statesman, whose words
when he was alive were as good as anybody's, and since his
death have not lost their wisdom with his countrymen; I
mean Mr. Webster. In his debate upon the Panama mis
sion he said, in speaking of the question of the confidence
of Congress in the Executive:

This seems a singular notion of confidence, and certainly is not
my notion of that confidence which the Constitution requires one
branch of the government to repose in another. The President
is not our agent, but, like ourselves, the agent of the people.
They have trusted to his hands the proper duties of his office;
and we are not to take those duties out of his hands from any
opinion of our own that we should execute them better ourselves.
The confidence which is due from us to the Executive and from the
Executive to us is not personal, but official and constitutional. It
has nothing to do with individual likings or dislikings: but re
sults from that division of power among departments arid those
limitations on the authority of each which belong to the nature
and frame of our Government. It would be unfortunate, indeed,
if our line of constitutional action were to vibrate backward and
forward according to our opinions of persons, swerving this way
to-day from undue attachment, and the other way to-morrow
from distrust or dislike. This may sometimes happen from the
weakness of our virtues or the excitement of our passions; but I

IMPEACHMENT OF PRESIDENT JOHNSON 415

trust it will not be coolly recommended to us as the rightful course
of public conduct. (Webster's Works, vol. 3, p. 187.)

Again, in his speech on the presidential protest in the
Senate in 1834, he said:

The first object of a free people is the preservation of their
liberty, and liberty is only to be preserved by maintaining consti
tutional restraints and just division of political power. Nothing
is more deceptive or more dangerous than the pretence of a desire
to simplify government. The simplest governments are despo
tisms; the next simplest, limited monarchies; but all republics, all
governments of law, must impose numerous limitations and quali
fications of authority and give many positive and many qualified
rights. In other words, they must be subject to rule and regula
tion. This is the very essence of free political institutions. The
spirit of liberty is, indeed, a bold and fearless spirit; but it is also
a sharp-sighted spirit; it is a cautious, sagacious, discriminating,
far-seeing intelligence; it is jealous of encroachment, jealous of
power, jealous of man. It demands checks; it seeks for guards;
it insists on securities; it entrenches itself behind strong defences,
and fortifies itself with all possible care against the assaults of
ambition and passion. It does not trust the amiable weaknesses
of human nature, and, therefore, it will not permit power to over
step its prescribed limits, though benevolence, good intent, and
patriotic purpose come along with it. Neither does it satisfy itself
with flashy and temporary resistance to illegal authority. Far
otherwise. It seeks for duration and permanence; it looks before
and after; and, building on the experience of ages which are past,
it labors diligently for the benefit of ages to come. This is the
nature of constitutional liberty; and this is our liberty, if we will
rightly understand and preserve it. Every free government is
necessarily complicated because all such governments establish
restraints, as well on the power of government itself as on that of
individuals. If we will abolish the distinction of branches, and
have but one branch; if we will abolish jury trials, and leave all
to the judge; if we will then ordain that the legislator shall him
self be that judge; and if we will place the executive power in the
same hands, we may readily simplify government. We may easily

416 SPEECHES OF WILLIAM MAXWELL EVARTS

bring it to the simplest of all possible forms, a pure despotism.
But a separation of departments, so far as practicable, and the
preservation of clear lines of division between them, is the funda
mental idea in the creation of all our constitutions; and, doubtless,
the continuance of regulated liberty depends on maintaining these
boundaries. (Webster's Works, vol. 4, p. 122.)

I think I need to add nothing to these wise, these discrim
inating, these absolute and peremptory instructions of this
distinguished statesman. The difficulty and the danger are
exactly where this government now finds them, in the with
holding of the strength of one department from working
the ruin of another.

THIRD DAY, APRIL 30, 1868

Mr. EVARTS. We perceive, then, Mr. Chief Justice and
Senators, that the subject out of which this controversy
has arisen between the two branches of the Government,
executive and legislative, touches the very foundations of
the balanced powers of the Constitution; and in the argu
ments of the honorable managers it has to some extent been
so pressed upon your attention. You have been made to
believe that so weighty and important is the point in contro
versy as to the allocation of the power over office included in
the function of removal, that if it is carried to the credit of
the executive department of this Government it makes it a
monarchy. Why, Mr. Chief Justice and Senators, what
grave reproach is this upon the wisdom and foresight and
civil prudence of our ancestors that have left unexamined
and unexplored and unsatisfied these doubts or measures
of the strength of the Executive as upon so severe a test or
inquiry of being a monarchy or a free republic? I ask, with
out reading the whole of it, your attention to a passage from
the Federalist, in one of the papers by Alexander Hamilton,
who meets in advance these aspersions that were sought to
be thrown upon the establishment of the executive power in

IMPEACHMENT OF PRESIDENT JOHNSON 417

a President. He there suggests in brief and solid discrimina
tions the distinctions between the Presidency and a mon
archy, and concludes by saying this :

What answer shall we give to those who would persuade us that
things so unlike resemble each other? The same that ought to
be given to those who tell us that a government, the whole power
of which would be in the hands of the elective and periodical
servants of the people, is an aristocracy, a monarchy, and a
despotism.

But a little closer attention both to the history of the
framing of the Constitution and to the opinions that main
tained a contest in the body of the convention, which should
finally determine the general character and nature of the
Constitution, will show us that this matter of the power of
removal or the control of office, as disputable between the
Executive and the Senate, touches more nearly one of the
other great balances of the Constitution; I mean that
balance between the weight of numbers in the people and
the equality of States, irrespective of population, of wealth,
and of size. Here it is, if I may be allowed to say so, that
the opinions to which my particular attention was drawn by
the honorable manager [Mr. Boutwell], the opinions of
Roger Sherman, had their origin. One of the most eminent
statesmen of the last generation said to me that it was to
Mr. Sherman and to his younger colleague, Mr. Ellsworth,
and to Judge Paterson, of New Jersey, that we owed it,
more than to all else in that convention, that our Govern
ment was made what the statesman pronounced it to be, the
best government in the world, a federal republic, instead of
being what it would have been but for those members of the
convention, as this same statesman of the last generation
expressed it, a consolidated empire, the worst government in
the world.

Between these two opinions it was that the controversy

29

418 SPEECHES OF WILLIAM MAXWELL EVARTS

whether the Senate should be admitted into a share of the
executive power of official appointment, the great arm and
strength of the Government came into play; and as a part of
his firm maintenance of the equality of the States, Mr. Sher
man insisted that this participation should be accorded to
the Senate; and others resisted as too great a subtraction
from the sum of executive power to be capable safely of this
distribution and frittering away. Mr. Adams, the first
President of that name, I am informed upon authority not
doubted, coming from the opinion of his grandson, died in
the conviction that even the participation in appointment
that the Constitution, as construed and maintained in the
practice of this Government, accorded to the Senate would
be the point upon which the Constitution would fail; that
this attraction of power to comparatively irresponsible and
unnoticed administration in the Senate would ultimately so
destroy the strength of the Executive with the people and
create so great discontent with the people themselves that
the Executive of their own choice, upon the Federal forces
and numbers which the Constitution gives to that election,
would not submit to the executive power thus bestowed
being given to a body that had its constitution without any
popular election whatever, and had its members and strength
made up not. by the wealth and power and strength of the
people, but by the equality of the States.

When you add to that this change which gives to the
Senate a voice in the removal from office, and thus gives
them the first hold upon the question of the maintenance of
official power in the country, you change wholly the question
of the Constitution; and instead of giving the Senate only
the advisory force which that instrument commits to it, and
only under the conditions that the office being to be filled
they have nothing to say but who shall fill it, and if they do
not concur, still leave it to the Executive to name another,
and another, and another, always proceeding from his orig-

IMPEACHMENT OF PRESIDENT JOHNSON 419

inal and principal motion in the matter, you change it to the
absolute preliminary power of this body to say to the Execu
tive of the United States that every administrative office
under him shall remain as it is; and these officers shall be
over him and against him, provided they be with and for
you; and when you add to that the power to say "until we
know and determine who the successor will be, until we get
the first move by the Executive's concession to us of the
successor, we hold the reins of power that the office shall not
be vacated," you do indeed break down at once the balance
between the executive and the legislative power as repre
sented in this body of the latter department of the Govern
ment, and you break down the Federal election of President
at once, and commit to the equality of States the partition
and distribution of the executive power of this country.

I would like to know how it is that the people of this
country are to be made to adopt this principle of their Con
stitution that the executive power attributed to the Federal
members, made up of Senators and Representatives added
together for each State, is to go through the formality of the
election of a President upon that principle and upon that
calculation, and then find that the executive power that they
supposed was involved in that primary choice and expression
of the public will is to be administered and controlled by a
body made up of the equality of States. I would like to
know on what plan our politics are to be carried on; how can
you make the combinations, how the forces, how the inter
ests, how the efforts that are to throw themselves into a
popular election to raise a presidential control of executive
power, and then find that that executive power is all admin
istered on the principle of equality of States. I would like
to know how it is that New York and Pennsylvania, and
Ohio and Indiana, and Illinois and Missouri, and the great
and growing States, are to carry the force of popular will into
the executive chair upon the federal numbers of the electoral

420 SPEECHES OF WILLIAM MAXWELL EVARTS

colleges, and then find that Rhode Island and Delaware, and
the distant States unpeopled, are to control the whole pos
session and administration of executive power. I would
like to know how long we are to keep up the form of electing
a President with the will of the people behind him, and then
find him stripped of the power thus committed to him in
the partition between the States, without regard to numbers
or to popular opinion. There is the grave dislocation of the
balances of the Constitution; there is the absolute destruc
tion of the power of the people over the presidential author
ity, keeping up the form of an election, but depriving it of all
its results. And I would like to know, if by law or by will
this body thus assumes to itself this derangement of the
balances of the Constitution as between the States and
popular numbers, how long New England can maintain in
its share of executive power, as administered here, as large
a proportion as belongs to New York, to Pennsylvania, to
Ohio, to Indiana, to Illinois, and to Missouri together.

I must think, Mr. Chief Justice and Senators, that there
has not been sufficiently considered how far these principles
thus debated reach, and how the framers of the Constitu
tion, when they came to debate in the year 1789 in Congress
what was or should be the actual and practical allocation
of this authority, understood the question perfectly in its
bearing and in its future necessities.

True, indeed, Mr. Sherman was always a stern and per
sistent advocate for the strength of the Senate as against
the power of the Executive. It was there, on that point,
that the Senate represented the equality of States; and he
and Mr. Ellsworth, holding their places in the convention
as the representatives of Connecticut, a State then a small
State, between the powerful State of Massachusetts on the
one side and New York on the other; and Judge Paterson,
of New Jersey, the representative of that State, a small
State, between the great State of New York on the one side

IMPEACHMENT OF PRESIDENT JOHNSON 421

and the great State of Pennsylvania on the other, were the
advocates, undoubtedly, of this distribution of power to the
Senate; and, as is well known in the history of the times, a
correspondence of some importance took place between the
elder Mr. Adams and Mr. Sherman, in the early days of the
working of the Government, as to whether the fears of Mr.
Adams that the Executive would prove too weak, or the
purposes of Mr. Sherman that the Senate should be strong
enough, were or were not most in accord with the principles
of the Government. But all that was based upon the idea
that the concurrence of the Senate, under the terms of the
Constitution, in appointment was the only detraction from
the supremacy and independence of executive authority.

Now, this question comes up in this form: the power of
removal is, and always has been, claimed and exercised by
the Executive in this Government, separately and inde
pendently of the Senate. Until the act of March 2, 1867,
the actual power of removal by the Senate never has been
claimed. Some constructions upon the affirmative exercise
of the power of appointment by the Executive have at
different times been suggested, and received more or less
support, tending to the conclusion that thus the Senate
might have some hold of the question of removals; and now
this act, which we are to consider more definitely hereafter,
does not assume in terms to give the Senate a participation
in the distinct and separate act of an executive nature, the
removal from office. Indeed, the manner in which the Con
gress has dealt with the subject is quite peculiar. Unable,
apparently, to find adequate support for the pretention that
the Senate could claim a share in the distinct act of removal
or vacating of office, the scheme of the law is to change the
tenure of office, so that removability as a separate and
independent governmental act, by whomever to be exerted,
is obliterated from the powers of this government. Look
at that, now, that you do absolutely strike out of the capacity

422 SPEECHES OF WILLIAM MAXWELL EVARTS

and resources of this government the power of removing an
officer as a separate executive act; I mean an executive act
in which you participate. You have determined by law
that there shall be no vacation of an office possible, except
when and as and by the operation of completely filling it.
And so far have you carried that principle that you do not
even make it possible to vacate it by the concurrence of the
Senate and the President; but you have deliberately and
firmly determined that the office shall remain full as an
estate and possession of the imcumbent, from which he can
be removed under no stress of the public necessity except
by the fact occurring of a complete appointment for per
manent tenure of a successor concurred in by the Senate
and made operative by the new appointee going into and
qualifying himself in the office.

This seems at the first sight a very extraordinary provision
for all the exigencies of a Government like ours, with its
forty thousand officers, whose list is paraded here before
you, with their twenty-one millions of emoluments, to show
the magnitude of the great prize contended for between the
Presidency and the Senate. It is a very singular provision,
doubtless, that in a Government which includes under it
forty thousand officers there should be no governmental pos
sibility of stopping a man in or removing him from an office
except by the deliberate succession of a permanent successor
approved by the Senate and concurred in by the appointee
himself going to the place and qualifying and assuming its
duties.

I speak the language of the act, and while the Senate is
in session there is not any power of temporary suspension or
arrest of fraud or violence, of danger or menace, in the con
duct of the subsisting officer. When you are in recess there
is a power of suspension given to the Executive, and we are
better off in that respect when you are in recess than when
you are in session, for we can, by a peremptory and definite

IMPEACHMENT OF PRESIDENT JOHNSON 423

and appropriate action, arrest misconduct by suspension.
But as I said before, I repeat, under this act the incumbents
of all these offices have a permanent estate until a successor,
with your consent and his own, is inducted into the office.

I do not propose to discuss (as quite unnecessary to any
decision of any matter to be passed on in your judgment) at
any very great length the question of the constitutionality of
this law. A very deliberate expression of opinion, after a
very valuable and thorough debate, conducted in this body,
in which the reasons on each side were ably maintained by
your most distinguished members, and a very thorough
consideration in the House of Representatives, where able
and eminent lawyers, some of whom appear among the man
agers to-day, gave the country the benefit of their knowledge
and their acuteness, have placed this matter upon a legis
lative judgment of constitutionality. But I think all will
agree that a legislative judgment of constitutionality does
not conclude a court, and that when legislative judgments
have differed, and when the practice of the government for
eighty years has been on one side and the new ideas intro
duced are confessedly of reversal and revolution in those
ideas, it is not saying too much to say that after the expres
sion of the legislative will, and after the expression of the
opinion of the legislature implied in their action, there yet
would remain for debate among jurists and lawyers, among
statesmen, among thoughtful citizens, and certainly properly
within the province of the Supreme Court of the United
States, the question whether the one or the other construc
tion of the Constitution, so vital in its influence upon the
government, was the correct and the safe course for the
conduct of the government.

Let me ask your attention for a moment upon two points,
to the question as presenting itself to the minds of the Sena
tors, as to whether this was or was not a reversal and revolu
tion in the practice and theories of the government, and also

424 SPEECHES OF WILLIAM MAXWELL EVARTS

as to the weight of a legislative opinion. In the Senate, the
Senator from Oregon [Mr. Williams] said:

This bill undertakes to reverse what has heretofore been the
admitted practice of the government; and it seemed to me that
it was due to the exalted office of the President of the United
States, the Chief Magistrate of the nation, that he should exercise
this power; that he should be left to choose his own cabinet, and
that he should be held responsible, as he will be, to the country
for whatever acts that cabinet may perform. (Congressional
Globe, thirty-ninth Congress, second session, p. 384.)

This Senator touches the very marrow of the matter, that
when you are passing this bill, which in the whole official
service of this country reverses the practice, you should at
least leave the exception of the cabinet officers in. That
was the point; leaving them entirely in, and that, with that
exception in, it was a reversal of the practice of the Govern
ment to all the rest, and the cabinet should be left as they
were, because, as he said wisely, the country will hold the
Executive responsible for what his cabinet does; and they
will so hold him until they find out that you have robbed
the Executive of all responsibility by robbing it of what is
the pith of responsibility, discretion.

The same honorable senator proceeds, in another point
of the debate:

I know there is room for disagreement of opinion; but it seemed
to me that if we revolutionize the practice of the government in
all other respects, we might let this power remain in the hands of
the President of the United States —

That is, the cabinet officers' appointment —

that we ought not to strip him of this power, which is one that it
seems to me it is necessary and reasonable that he should exercise.
(Ibid., p. 384.)

The honorable senator from Michigan [Mr. Howard] says :
I agree with him —

IMPEACHMENT OF PRESIDENT JOHNSON 425

Referring to the senator from Indiana [Mr. Hendricks :]

that the practical precedents of the government thus far lead to
this interpretation of the Constitution, that it is competent for the
President during the recess of the Senate to turn out of office a
present incumbent, and to fill his place by commissioning another.
This has been, I admit, the practice for long years and many
generations; but it is to be observed, at the same time, that this
claim of power on the part of the Executive has been uniformly
contested by some of the best minds of the country. (Ibid., p.
407.)

And now, as to the weight of mere legislative construction,
even in the mind of a legislator himself, as compared with
other Sources of authoritative determination, let me ask
your attention to some other very pertinent observations of
the honorable senator from Oregon [Mr. Williams] :

Those who advocate the executive power of removal rely alto
gether upon the legislative construction of the Constitution, sus
tained by the practice and opinions of individual men. I need not
argue that the legislative construction of the Constitution has no
binding force. It is to be treated with proper respect; but few
constructions have been put upon the Constitution by Congress at
one time that have not been modified or overruled at other or
subsequent times, so that, so far as the legislative construction of
the Constitution upon this question is concerned, it is entitled to
very little consideration. (Ibid., p. 439.)

The point in the debate was that the legislative construc
tion of 1789, as worked into the bones of the Government by
the indurating process of practice and exercise, was a con
struction of powerful influence on the matter; and yet the
honorable Senator from Oregon justly pushes the proposi
tion that legislative construction per se — that I may not
speak disrespectfully, I speak his words — "that legislative
construction is entitled to very little consideration"; that
it has "no binding force." Shall we be told that a legis
lative construction of March 2, 1867, and a practice under

426 SPEECHES OF WILLIAM MAXWELL EVARTS

it for one year that has brought the Congress face to face
with the Executive and introduced the sword of impeach
ment between the two branches upon a removal from office,
raising the precise question that an attempt by the President
to remove a Secretary and appoint an ad interim discharge
of its duties is to result in a removal by the Senate of the
Executive itself and the appointment of one of its own mem
bers to the ad interim discharge of the duties of the Presi
dency? That is the issue made by a recent legislative con
struction.

But the honorable Senator from Oregon, with great force
and wisdom, as it seems to me, proceeded in the debate to
say that the courts of law, and, above all, the Supreme Court
of the United States, were the places to look for authoritative,
for permanent determinations of these constitutional ques
tions; and it will be found that in this he but followed the
wisdom shown in the debate in 1789 and in the final result
of it, in which Mr. Sherman concurred as much as any
member of that Congress, that it was not for Congress to
name or assign the limits upon executive power by enact
ment nor to appropriate and confer executive power by
endowment through an act of Congress, but to leave it, as
Mr. White, of North Carolina, said, and as Mr. Gerry, of
Massachusetts, said, and as Mr. Sherman, of Connecticut,
said, for the Constitution itself to operate upon the foreign
secretary act, and let the action be made under it by
virtue of a claim of right under the Constitution, and who
ever was aggrieved let him raise his question in the courts of
law. And upon that resolution and upon that situation of
the thing the final vote was taken, and the matter was dis
posed of in that Congress; but it was then and ever since
has been regarded as an authentic and authoritative deter
mination of that Congress that the power was in the Presi
dent, and it has been so insisted upon, so acted upon ever
since, and nobody has been aggrieved, and nobody has raised

IMPEACHMENT OF PRESIDENT JOHNSON 427

the question in the courts of law. That is the force and the
weight of the resolution of that first Congress and of the
practice of the Government under it.

In the House of Representatives, also, it was a conceded
point in the debate upon this bill, when one of the ablest
lawyers in that body, as I understand by repute, Mr. Wil
liams, one of the honorable managers, in his argument for
the bill, said:

It aims at the reformation of a giant vice in the administration
of this Government by bringing its practice back from a rule of
its infancy and inexperience. (Ibid., p. 18.)

He thought it was a faulty practice; but that it was a
practice, and that from its infancy to the day of the passage
of the bill it was a vice inherent in the system and exercising
its power over its action, he did not doubt. He admits,
subsequently, in the same debate that the Congress of 1789
decided, and their successors for three-quarters of a century
acquiesced in this doctrine.

I will not weary the Senate with a thorough analysis of
the debate of 1789. It is, I believe, decidedly the most
important debate in the history of Congress. It is, I think,
the best considered debate in the history of the Government.
I think it included among its debaters as many of the able
men and of the wise men, the benefit of whose public service
this nation has ever enjoyed, as any debate or measure that
this Government has ever entertained or canvassed. And
it was a debate in which the civil prudence and forecast of
the debaters manifested itself, whichever side they took of
the question, in wonderful wisdom, for the premises of the
Constitution were very narrow. Most probably the ques
tion of removal from office as a distinct subject had never
occurred to the minds of men in the convention. The
tenure of office was not to be made permanent, except in
the case of the justices of the Supreme Court, and the perio-

428 SPEECHES OF WILLIAM MAXWELL EVARTS

dicity of the House of Representatives, of the Senate, and
of the Executive were fixed. Then there was an attribution
of the whole inferior administrative official power of the
Government to the Executive as being an executive act,
with the single qualification, exceptional in itself, that the
advice and consent of the Senate should be interposed as a
negative upon presidential nomination, carrying him back
to a substitute if they should not agree on the first nominee.
The point raised was exactly this, and may be very briefly
stated: those who, with Mr. Sherman, maintained that
the concurrence in removals was as necessary as the con
currence in appointments, put themselves on a proposition
that the same power that appointed should have the removal.
That was a little begging of the question — speaking it with
all respect — as to who the appointing power was really,
under the terms and in the intent of the Constitution. But,
conceding that the connection of the Senate with the matter
really made them a part of the appointing power, the an
swer to the argument, triumphant as it seems to me, as it
came from the distinguished speakers, Mr. Madison, Mr.
Boudinot, Fisher Ames, and other supporters of the doctrine
that finally triumphed, was this: primarily the whole busi
ness of official subordinate executive action is a part of the
executive function; that being attributed in solido to the
President, we look to exceptions to serve the turn and pre
cise measure of their own definition, and discard that falsest
principle of reasoning in regard to laws or in regard to con
duct, that exception is to breed exception or amplification
of exception. The general mass is to lose what is sub
tracted from it by exception, and the general mass is to
remain with its whole weight not thus separately and defi
nitely reduced. When, therefore, these statesmen said you
find the freedom of executive action and its solid authority re
duced by an exception of advice and consent in appointment,
you must understand that that is the limit of the exception,

IMPEACHMENT OF PRESIDENT JOHNSON 429

and the executive power in all other respects stands unim
paired.

What, then, is the test of the consideration? Whether
removal from office belongs to the executive power, if the
Constitution has not attributed it elsewhere ; and then the
question was of statesmanship, whether this debate was
important, whether it was vital, whether its determination
one way or the other did affect seriously the character of
the government and its working; and I think all agreed
that it did; and all so agreeing, and all coming to the reso
lution that I have stated, what weight, what significance is
there in the fact that the party that was defeated in the argu
ment submitted to the conclusion and to the practice of the
Government under it, and did not raise a voice or take a
vote in derogation of it during the whole course of the Gov
ernment?

But it does not stand upon this. After forty-five years'
working of this system, between the years 1830 and 1835,
the great party exacerbations between the democracy,
under the lead of General Jackson, and the whigs, under the
mastery of the eminent men that then filled these halls, the
only survivor of whom, eminent then himself and eminent
ever since, now does me the honor to listen to my remarks
[referring to Hon. Thomas Ewing, of Ohio], then under that
antagonism there was renewed the great debate; and what
was the measure to which the contesting party, under
the influence of party spirit, brought the matter? Mr.
Webster said while he led the forces in a great array, which,
perhaps, for the single instance combined the triumvirate
of himself, Mr. Calhoun, and Mr. Clay, that the contrary
opinion and the contrary practice was settled. He said:
"I regard it as a settled point; settled by construction, set
tled by precedent, settled by the practice of the Government,
settled by legislation;" and he did not seek to disturb it.
He knew the force of those forty-five years, the whole exist-

430 SPEECHES OF WILLIAM MAXWELL EVARTS

ence of the nation under its Constitution upon a question
of that kind; and he sought only to interpose a moral re
straint upon the President in requiring him, when he re
moved from office, to assign the reasons of the removal.

General Jackson and the democratic party met the point
promptly with firmness and with thoroughness, and in his
protest against a resolution which the Senate had adopted
in 1834, I think, that his action in the removal of Mr.
Duane (though they brought it down finally, I believe, to
the point of the removal of the deposits) had been in dero
gation of the Constitution and the laws, he met it with a de
fiance in his protest which brought up two great topics of
debate; one the independence of the Executive in its right
to judge of constitutional questions, and the other the great
point that the conferring by choice of the people upon the
President of their representation through federal numbers
was an important part of the Constitution, and that he was
not a man of his own will, but endued and re-enforced . by
the will of the people. That debate was carried on and
that debate was determined by the Senate passing a vote
which enacted its opinion that his conduct had been in dero
gation of the Constitution and the law; and on this very
point a reference was made to the common master of them
all, the people of the United States; and upon a re-election
of General Jackson and upon a confirmation of opinion from
the people themselves, they in their primary capacity
acting through the authentic changes of their Government,
by election, brought into the Senate, upon this challenge, a
majority that expunged the resolution censuring the action
of the Executive. You talk about power to decide constitu
tional questions by Congress, power to decide them by the
Supreme Court, power to decide them by the Executive.
I show you the superior power of all that has been drawn
into the great debate, of public opinion and the determina
tion of the suffrage, and I say that the history of free coun-

IMPEACHMENT OF PRESIDENT JOHNSON 431

tries, the history of popular liberty, the history of the power
of the people, not by passion or by violence, but by reason,
by discretion and peaceful, silent, patient exercise of their
power, was never shown more distinctly and more definitely
than on this very matter, whether it is a part of the executive
power of this country or of the legislative or senatorial
power, that removal from office should remain in the Execu
tive or be distributed among the Senators. It was not my
party that was pleased or that was triumphant, but of the
fact of what the people thought there was not any doubt,
and there never has been since until the new situation has
produced new interests and resulted in new conclusions.

Honorable Senators and Representatives will remember
how in the debate which led to the passage of the civil
tenure act it was represented that the authority of the first
Congress of 1789 ought to be somewhat scrutinized because
of the influence upon their debates and conclusions that
the great character of the Chief Magistrate, President Wash
ington, might have produced upon their minds. Senators,
why can we not look at the present as we look at the past?
Why can we not see in ourselves what we so easily discern
as possible with others? Why can we not appreciate it that
perhaps the judgment of Senators and of Representatives now
may have been warped or misled somewhat by their opin
ions and feelings toward the Executive as it is now filled?
I apprehend, therefore, that this matter of party influence
is one that is quite as wise to consider, and this matter of
personal power in authority of character and conduct is
quite as suitable to be weighed when we are acting as when
we are criticising the action of others.

Two passages I may be permitted to quote from this great
debate as carried on in the Congress of 1789. One is from
Mr. Madison, at page 480 of the first volume of the Annals
of Congress :

It is evidently the intention of the Constitution that the first

432 SPEECHES OF WILLIAM MAXWELL EVARTS

magistrate should be responsible for the executive department.
So far, therefore, as we do not make the officers who are to aid
him in the duties of that department responsible to him, he is
not responsible to his country. Again, is there no danger that an
officer, when he is appointed by the concurrence of the Senate, and
has friends in that body, may choose rather to risk his establish
ment on the favor of that branch than rest it upon the discharge
of his duties to the satisfaction of the executive branch, which is
constitutionally authorized to inspect and control his conduct?
And if it should happen that the officers connect themselves with
the Senate, they may mutually support each other, and for want of
efficacy reduce the power of the President to a mere vapor; in
which case his responsibility would be annihilated, and the ex
pectation of it unjust. The high executive officers, joined in cabal
with the Senate, would lay the foundation of discord, and end in
an assumption of the executive power, only to be removed by a
revolution in the Government. I believe no principle is more
clearly laid down in the Constitution than that of responsibility.

Mr. Boudinot (page 487) says :

Neither this clause [of impeachment] nor any other goes so far
as to say it shall be the only mode of removal: therefore, we may
proceed to inquire what the other is. Let us examine whether it
belongs to the Senate and President. Certainly, sir, there is
nothing that gives the Senate this right in express terms; but they
are authorized, in express words, to be concerned in the appoint
ment. And does this necessarily include the power of removal?
If the President complains to the Senate of the misconduct of an
officer, and desires their advice and consent to the removal, what
are the Senate to do? Most certainly they will inquire if the com
plaint is well founded. To do this they must call the officer
before them to answer. Who, then, are the parties? The su
preme executive officer against his assistant; and the Senate are
to sit as judges to determine whether sufficient cause of removal
exists. Does not this set the Senate over the head of the President?
But suppose they shall decide in favor of the officer, what a situa
tion is the President then in, surrounded by officers with whom, by
his situation, he is compelled to act, but in whom he can have no

IMPEACHMENT OF PRESIDENT JOHNSON 433

confidence, reversing the privilege given him by the Constitution,
to prevent his having officers imposed upon him who do not meet
his approbation?

In these weighty words of Mr. Boudinot and Mr. Madi
son is found the marrow of the whole controversy. There
is no escaping from it. If this body pursue the method now
adopted, they must be responsible to the country for the
action of the executive department; and if officers are to
be maintained, as these wise statesmen say, over the head
of the President, then that power of the Constitution which
allowed him to have a voice in their selection is entirely
gone; for I need not say that if it is to be dependent upon an
instantaneous selection, and thereafter there is to be no
space of repentance or no change of purpose on the part of
the Executive as new acts shall develop themselves and new
traits of character shall show themselves in the incumbent,
it is idle to say that he has the power of appointment.
It must be the power of appointment from day to day;
that is the power of appointment for which he should be
held responsible, if he is to be responsible at all. I wish to
ask your attention to the opinions expressed by some of the
statesmen who took part in this determination of what the
effect, and the important effect, of this conclusion of the
Congress of 1789 was. None of them overlooked its im
portance on one side or the other; and I beg leave to read
from the life and works of the elder Adams, at page 448 of
the first volume, the interesting comments of one, himself a
distinguished statesman, in whom we all have confidence,
Mr. Charles Francis Adams:

The question most earnestly disputed turned upon the power
vested by the Constitution in the President to remove the person
at the head of that bureau at his pleasure. One party maintained
it was an absolute right. The other insisted that it was subject
to the same restriction of a ratification by the Senate which is
required when the officer is appointed. After a long contest in

30

434 SPEECHES OP WILLIAM MAXWELL EVARTS

the House of Representatives, terminating in favor of the unre
stricted construction, the bill came up to the Senate for its appro
bation.

This case was peculiar and highly important. By an anomaly
in the Constitution, which, upon any recognized theory, it is dif
ficult to defend, the Senate, which, in the last resort, is made the
judicial tribunal to try the President for malversation in office, is
likewise clothed with the power of denying him the agents in
whom he may choose most to confide for the faithful execution of
the duties of his station, and forcing him to select such as they may
prefer. If, in addition to this, the power of displacing such as he
found unworthy of trust had been subjected to the same control,
it cannot admit of a doubt that the Government must, in course
of time, have become an oligarchy, in which the President would
sink into a mere instrument of any faction that might happen to
be in the ascendant in the Senate; this, too, at the same time that
he would be subject to be tried by them for offences in his depart
ment, over which he could exercise no effective restraint whatever.
In such case the alternative is inevitable, either that he would have
become a confederate with that faction, and therefore utterly
beyond the reach of punishment by impeachment at their hands for
offences committed with their privity, if not at their dictation, or
else, in case of his refusal, that he would have been powerless to
defend himself against the paralyzing operation of their ill-will.
Such a state of subjection in the executive head to the legislature
is subversive of all ideas of a balance of powers drawn from the
theory of the British constitution, and renders probable at any
moment a collision, in which one side or the other, and it is most
likely to be the legislature, must be ultimately annihilated.

Yet, however true these views may be in the abstract, it would
scarcely have caused surprise if their soundness had not been ap
preciated in the Senate. The temptation to magnify their au
thority is commonly all-powerful with public bodies of every kind.
In any other stage of the present Government than the first it
would have proved quite irresistible. But throughout the admin
istration of General Washington there is visible among public
men a degree of indifference to power and place which forms one
of the most marked features of that time. More than once the

IMPEACHMENT OF PRESIDENT JOHNSON 435

highest cabinet and foreign appointments went begging to suitable
candidates, and begged in vain. To this fact it is owing that
public questions of such moment were then discussed with as much
of personal disinterestedness as can probably ever be expected to
enter into them anywhere. Yet even with all these favoring cir
cumstances it soon became clear that the republican jealousy
of a centralization of power in the President would combine with
the esprit du corps to rally at least half the Senate in favor of
subjecting removals to their control. In such a case the respon
sibility of deciding the point devolved, by the terms of the Consti
tution, upon Mr. Adams, as Vice-President. The debate was
continued from the 15th to the 18th of July, a very long time for
that day in an assembly comprising only twenty-two members
when full, but seldom more than twenty in attendance. A very
brief abstract, the only one that has yet seen the light, is furnished
in the third volume of the present work. Mr. Adams appears to
have made it for the purpose of framing his own judgment in the
contingency which he must have foreseen as likely to occur.
The final vote was taken on the 18th. Nine Senators voted to
subject the President's power of removal to the will of the Senate:
Messrs. Few, Grayson, Gunn, Johnson, Izard, Langdon, Lee,
Maclay, and Wingate. On the other hand, nine Senators voted
against claiming the restriction: Messrs. Bassett, Carroll, Dalton,
Elmer, Henry, Morris, Paterson, Read, and Strong. The result
depended upon the voice of the Vice-President. It was the first
time that he had been summoned to such a duty. It was the only
time during his eight years of service in that place that he felt the
case to be of such importance as to justify his assigning reasons
for his vote. These reasons were not committed to paper, however,
and can, therefore, never be known. But in their soundness it is
certain that he never had the shadow of a doubt. His decision
settled the question of constitutional power in favor of the Presi
dent, and, consequently, established the practice under the
Government, which has continued down to this day. Although
there have been occasional exceptions taken to it in argument,
especially at moments when the executive power, wielded by a
strong hand, seemed to encroach upon the limits of the co-ordinate
departments, its substantial correctness has been, on the whole,

436 SPEECHES OF WILLIAM MAXWELL EVARTS

quite generally acquiesced in. And all have agreed that no single
act of the first Congress has been attended with more important
effects upon the working of every part of the Government.

It is thus that this was regarded at the time that the trans
action took place. I beg now to call the attention of the
Senate to the opinions of Fisher Ames, as expressed in
letters written by him concurrently with the action of the
Congress to his correspondent, an intelligent lawyer of Bos
ton, Mr. George Richards Minot. -In a letter to Mr. Minot,
dated the 31st of May, 1789, to be found in the first volume
of the life of Mr. Ames, page 51, he writes:

You dislike the responsibility of the President in the case of
the minister of foreign affairs. I would have the President re
sponsible for his appointments; and if those whom he puts in are
unfit they may be impeached on misconduct, or he may remove
them when he finds them obnoxious. It would be easier for a
minister to secure a faction in the Senate or get the protection of
the Senators of his own State than to secure the protection of the
President, whose character would suffer by it. The number of
the Senators, the secrecy of their doings, would shelter them, and a
corrupt connection between those who appoint to office and who
also maintain in office and the officers themselves would be created.
The meddling of the Senate in appointments is one of the least
defensible parts of the Constitution. I would not extend their
power any further.

And again, under date of June 23, 1789, page 55 of the
same volume:

The debate in relation to the President's power of removal from
office is an instance. Four days' unceasing speechifying has fur
nished you with the merits of the question. The transaction of
yesterday may need some elucidation. In the Committee of the
Whole it was moved to strike out the words, "to be removable
by the President," &c. This did not pass, and the words were
retained. The bill was reported to the House, and a motion made
to insert in the second clause, " whenever an officer shall be removed

IMPEACHMENT OF PRESIDENT JOHNSON 437

by the President, or a vacancy shall happen in any other way,"
to the intent to strike out the first words. The first words, "to be
removable,". &c, were supposed to amount to a legislative disposal
of the power of removal. If the Constitution had vested it in the
President, it was improper to use such words as would imply that
the power was to be exercised by him in virtue of this act. The
mover and supporters of the amendment supposed that a grant
by the legislature might be resumed, and that as the Constitution
had already given it to the President it was putting it on better
ground, and, if once gained by the declaration of both houses,
would be a construction of the Constitution, and not liable to
future encroachments. Others, who contended against the ad
visory part of the Senate in removals, supposed the first ground
the most tenable, that it would include the latter, and operate
as a declaration of the Constitution, and at the same time expressly
dispose of the power. They further apprehended that any change
of position would divide the victors and endanger the final decision
in both houses. There was certainly weight in this last opinion.
Yet, the amendment being actually proposed, it remained only to
choose between the two clauses. I think the latter, which passed,
and which seems to imply the legal (rather constitutional) power
of the President, is the safest doctrine. This prevailed, and the
first words were expunged. This has produced discontent, and
possibly in the event it will be found disagreement, among those
who voted with the majority.

This is, in fact, a great question, and I feel perfectly satisfied
with the President's right to exercise the power, either by the
Constitution or the authority of an act. The arguments in favor
of the former fall short of full proof, but in my mind they greatly
preponderate.

You will say that I have expressed my sentiments with some
moderation. You will be deceived, for my whole heart has been
engaged in this debate. Indeed, it has ached. It has kept me
agitated, and in no small degree unhappy. I am commonly op
posed to those who modestly assume the rank of champions of
liberty and make a very patriotic noise about the people. It is
the stale artifice which has duped the world a thousand times, and
yet, though detected, it is still successful. I love liberty as well as

438 SPEECHES OF WILLIAM MAXWELL EVARTS

anybody. I am proud of it, as the true title of our people to dis
tinction above others; but so are others, for they have an interest
and a pride in the same thing. But I would guard it by making
the laws strong enough to protect it. In this debate a stroke
was aimed at the vitals of the government, perhaps with the best
intentions, but I have no doubt of the tendency to a true aristoc
racy.

It will thus be seen, Senators, that the statesmen whom
we most revere regarded this as, so to speak, a construction
of the Constitution as important as the framing of itself had
been. And now, a law of Congress having introduced a
revolution in the doctrine and in the practice of the Govern
ment, a legislative construction binding no one and being
entitled to little respect from the changeableness of legis
lative constructions, in the language of the honorable Senator
from Oregon, the question arises whether a doubt, whether
an act in reference to the unconstitutionality of this law
on the part of the executive department is a ground of
impeachment. The doctrine of unconstitutional law seems
to me — and I speak with great respect — to be wholly mis
understood by the honorable managers in the propositions
which they present. Nobody can ever violate an uncon
stitutional law, for it is not a rule binding upon him or any
body else. His conduct in violating it or in contravening
it may be at variance with other ethical and civil conditions
of duty: and for the violation of those ethical and civil
conditions he may be responsible. If a marshal of the
United States, executing an unconstitutional fugitive slave
bill, enters with the process of the authority of law, it does
not follow that resistance may be carried to the extent of
shooting the marshal; but it is not because it is a violation
of that law; for if it is unconstitutional there can be no
violation of it. It is because civil duty does not permit
civil contests to be raised by force and violence. So, too,
if a subordinate executive officer, who has nothing but

IMPEACHMENT OF PRESIDENT JOHNSON 439

ministerial duty to perform, as a United States marshal
in the service of process under an unconstitutional law,
undertakes to deal with the question of its unconstitution
ally, the ethical and civil duty on his part is, as it is merely
ministerial on his part, to have his conscience determine
whether he will execute it in this ministerial capacity, or
whether he will resign his office. He cannot, under proper
ethical rules, determine whether the execution of the law
shall be defeated by the resistance of the apparatus provided
for its- execution; but if the law bears upon his personal
rights or official emoluments, then, without a violation of
the peace, he may raise the question of the law and resist
it consistently with all civil and ethical duties.

Thus we see at once that we are brought face to face
with the fundamental propositions, and I ask attention to a
passage from the Federalist, at page 549, where there is a
very vigorous discussion by Mr. Hamilton of the question
of unconstitutional laws; and to the case of Marbury vs.
Madison in 1 Cranch. The subject is old, but it is there
discussed with a luminous wisdom, both in advance of the
adoption of the Constitution and of its construction by the
Supreme Court of the United States, that may well displace
the more inconsiderate and loose views that have been
presented in debate here. In the Federalist, No. 78, page
541, Mr. Hamilton says:

Some perplexity respecting the rights of the courts to pronounce
legislative acts void, because contrary to the Constitution, has
arisen from an imagination that the doctrine would imply a supe
riority of the judiciary to the legislative power. It is urged that
the authority which can declare the acts of another void must
necessarily be superior to the one whose acts may be declared
void. As this doctrine is of great importance in all the American
constitutions, a brief discussion of the ground on which it rests
cannot be unacceptable.

There is no position which depends on clearer principles than

440 SPEECHES OF WILLIAM MAXWELL EVARTS

that every act of a delegated authority contrary to the tenor of
the commission under which it is exercised is void. No legislative
act, therefore, contrary to the Constitution, can be valid. To deny
this would be to affirm that the deputy is greater than his prin
cipal; that the servant is above his master; that the representatives
of the people are superior to the people themselves; that men
acting by virtue of powers may do not only what their powers do
not authorize, but what they forbid.

If it be said that the legislative body are themselves the consti
tutional judges of their own powers, and that the construction they
put upon them is conclusive upon the other departments, it may
be answered that this cannot be the natural presumption, where
it is not to be collected from any particular provisions in the
Constitution. It is not otherwise to be supposed that the Con
stitution could intend to enable the representatives of the people
to substitute their will to that of their constituents. It is far more
rational to suppose that the courts were designed to be an inter
mediate body between the people and the legislature, in order,
among other things, to keep the latter within the limits assigned
to their authority. The interpretation of the laws is the proper
and peculiar province of the courts. A Constitution is in fact,
and must be regarded by the judges as a fundamental law. It
therefore belongs to them to ascertain its meaning, as well as the
meaning of any particular act proceeding from the legislative
body. If there should happen to be an irreconcilable variance
between the two, that which has the superior obligation and valid
ity ought, of course, to be preferred; or, in other words, the Con
stitution ought to be preferred to the statute, the intention of
the people to the intention of their agents.

Nor does this conclusion, by any means, suppose a superiority
of the judicial to the legislative power. It only supposes that the
power of the people is superior to both, and that where the will
of the legislature, declared in its statutes, stands in opposition to
that of the people, declared in the Constitution, the judges ought
to be governed by the latter rather than the former. They ought
to regulate their decisions by the fundamental laws rather than
by those which are not fundamental.

IMPEACHMENT OF PRESIDENT JOHNSON 441

Again :

If, then, the courts of justice are to be considered as the bul
warks of a limited Constitution against legislative encroachments,
this consideration will afford a strong argument for the permanent
tenure of judicial offices, since nothing will contribute so much
as this to that independent spirit in the judges, which must be
essential to the faithful performance of so arduous a duty. (Ibid.,
544.)

In the case of Marbury vs. Madison (1 Cranch, pp. 175,
178), the Supreme Court of the United States, speaking
through the great Chief Justice Marshall, said:

The question whether an act repugnant to the Constitution
can become the law of the land is a question deeply interesting to
the United States; but happily not of an intricacy proportioned to
its interests. It seems only necessary to recognize certain prin
ciples, supposed to have been long and well established, to decide it.

That the people have an original right to establish for their
future government such principles as, in their opinion, shall most
conduce to their own happiness, is the basis on which the whole
American fabric has been erected. The exercise of this original
right is a very great exertion; nor can it, nor ought it, to be fre
quently repeated. The principles, therefore, so established are
deemed fundamental, and as the authority from which they pro
ceed is supreme and can seldom act, they are designed to be per
manent.

This original and supreme will organizes the Government and
assigns to different departments their respective powers. It
may either stop here or establish certain limits not to be trans
cended by those departments.

The Government of the United States is of the latter description.
The powers of the legislature are defined and limited, and that
those limits may not be mistaken or forgotten the Constitution is
written. To what purpose are powers limited, and to what pur
pose is that limitation committed to writing, if these limits may
at any time be passed by those intended to be restrained? The
distinction between a government with limited and unlimited

442 SPEECHES OF WILLIAM MAXWELL EVARTS

powers is abolished if those limits do not confine the persons on
whom they are imposed, and if acts prohibited and acts allowed are
of equal obligation. It is a proposition too plain to be contested
that the Constitution controls any legislative act repugnant to it,
or that the legislature may alter the Constitution by an ordinary
act.

Between these alternatives there is no middle ground. The
Constitution is either a superior, paramount law, unchangeable
by ordinary means, or it is on a level with ordinary legislative acts,
and, like other acts, is alterable when the legislature shall please
to alter it.

If the former part of the alternative be true, then a legislative
act contrary to the Constitution is not law; if the latter part be
true, then written constitutions are absurd attempts on the part
of the people to limit a power in its own nature illimitable.

Certainly all those who have framed written constitutions con
template them as forming the fundamental and paramount law of
the nation, and, consequently, the theory of every such govern
ment must be that an act of the legislature, repugnant to the
Constitution, is void.

This theory is essentially attached to a written constitution,
and is, consequently, to be considered by the Court as one of the
fundamental principles of our society. It is not, therefore, to be
lost sight of in the further consideration of this subject.

If an act of the legislature repugnant to the Constitution is
void, does it, notwithstanding its invalidity, bind the Courts and
oblige them to give it effect? Or, in other words, though it be
not law does it constitute a rule as operative as if it was a law?
This would be to overthrow in fact what was established in theory,
and would seem, at first view, an absurdity too gross to be insisted
on. It shall, however, receive a more attentive consideration.

It is emphatically the province and duty of the judicial depart
ment to say what the law is. Those who apply the rule to particu
lar cases must, of necessity, expound and interpret that rule. If
two laws conflict with each other, the Courts must decide on the
operation of each.

So, if a law be in opposition to the Constitution, if both the law
and the Constitution apply to a particular case, so that the court

IMPEACHMENT OF PRESIDENT JOHNSON 443

must either decide that case conformably to the law, disregarding
the Constitution, or conformably to the Constitution, disregarding
the law, the Court must determine which of these conflicting
rules governs the case. This is of the very essence of judicial duty.

If, then, the Courts are to regard the Constitution — and the
Constitution is superior to any ordinary act of the legislature —
the Constitution, and not such ordinary act, must govern the case
to which they both apply.

Those, then, who controvert the principle that the Constitution
is to be considered in Court as a paramount law, are reduced to the
necessity of maintaining that Courts must close their eyes on the
Constitution and see only the law.

This doctrine would subvert the very foundation of all written
constitutions. It would declare that an act which, according to
the principles and theory of our. Government, is entirely void, is
yet, in practice, completely obligatory. It would declare that if
the legislature shall do what is expressly forbidden, such act,
notwithstanding the express prohibition, is in reality effectual.
It would be giving to the legislature a practical and real omnipo
tence with the same breath which professes to restrict their powers
within narrow limits. It is prescribing limits, and declaring that
those limits may be passed at pleasure.

That it thus reduces to nothing what we have deemed the great
est improvement on political institutions — a written constitution —
would of itself be sufficient in America, where written constitutions
have been viewed with so much reverence for rejecting the construc
tion.

Undoubtedly it is a question of very grave consideration
how far the different departments of the Government, legis
lative, judicial, and executive, are at liberty to act in
reference to unconstitutional laws. The judicial duty, per
haps, may be plain. They wait for a case; they volunteer no
advice; they exercise no supervision. But as between the
legislature and the Executive, even when the Supreme
Court has passed upon the question, it is one of the gravest
constitutional points for public men to determine when and
how the legislature may raise the question again by passing

444 SPEECHES OF WILLIAM MAXWELL EVARTS

a law against the decision of the Supreme Court, and the
Executive may raise the question again by undertaking an
executive duty under the Constitution against the decision
of the Supreme Court and against the determination of
Congress. We in this case have been accused of insisting
upon extravagant pretensions. We have never suggested
anything further than this, for the case only requires it,
that whatever may be the doubtful or debatable region of
the co-ordinate authority of the different departments of
Government to judge for themselves of the constitutionality
or unconstitutionality of laws, to raise the question anew in
their authentic and responsible public action, when the
President of the United States, in common with the humblest
citizen, finds a law passed over his right, and binding upon his
action in the matter of his right, then all reasons of duty to
self, to the public, to the Constitution, to the laws, require
that the matter should be put in the train of judicial
decision, in order that the light of the serene reason of the
Supreme Court may be shed upon it, to the end that Con
gress even may reconsider its action and retract its encroach
ment upon the Constitution.

But Senators will not have forgotten that General Jackson,
in his celebrated controversy with the whig party, claimed
that no department of the Government should receive its
final and necessary and perpetual exclusion and conclusion
on a constitutional question from the judgment even of the
Supreme Court, and that under the obligations of each one's
oath, yours as Senators, yours as Representatives, and the
President's as Chief Executive, each must act in a new
juncture and in reference to a new matter arising to raise
again the question of constitutional authority. Now, let
me read in a form which I have ready for quotation a short
passage on which General Jackson in his protest sets this
forth. I read from a debate on the fugitive slave law as con
ducted in this body in the year 1852, when the honorable

IMPEACHMENT OF PRESIDENT JOHNSON 445

Senator from Massachusetts [Mr. Sumner] was the spokes
man and champion of the right for every department of the
Government to judge the constitutionality of law and of
duty:

But whatever may be the influence of this judgment —

That is, the judgment of the Supreme Court of the United
States in the case of Prigg vs. Pennsylvania —

But whatever may be the influence of this judgment as a rule
to the judiciary, it cannot arrest our duty as legislators. And here
I adopt, with entire assent, the language of President Jackson, in
his memorable veto, in 1832, of the Bank of the United States.
To his course was opposed the authority of the Supreme Court,
and this is his reply:

"If the opinion of the Supreirie Court covers the whole ground
of this act it ought not to control the co-ordinate authorities of
this Government. The Congress, the Executive, and the Court
must each for itself be guided by its own opinion of the Constitution.
Each public officer who takes an oath to support the Constitution
swears that he will support it as he understands it, and not as it is
understood by others. It is as much the duty of the House of
Representatives, of the Senate, and of the President, to decide
upon the constitutionality of any bill or resolution which may be
presented to them for passage or approval as it is of the supreme
judges when it may be brought before them for judicial decision.
The authority of the Supreme Court must not, therefore, be
permitted to control the Congress or the Executive when acting
in their legislative capacities, but to have only such influence as
the force of their reasoning may deserve."

With these authoritative words of Andrew Jackson I dismiss
this topic. (Appendix to Congressional Globe, Thirty-second Con
gress, first session, p. 1108.)

" Times change and we change with them." Nevertheless,
principles remain, duties remain, the powers of Government
remain, their co-ordination remains, the conscience of men
remains, and everybody that has taken an oath, and every-

446 SPEECHES OF WILLIAM MAXWELL EVARTS

body that is subject to the Constitution without taking an
oath, by peaceful means has a right to revere the Constitu
tion in derogation of unconstitutional laws; and any leg
islative will or any judicial authority that shall deny the
supremacy of the Constitution in its power to protect men
who thus conscientiously, thus peacefully raise questions
for determination in a conflict between the Constitution and
the law, will not be consistent with written constitutions
or with the maintenance of the liberties of this people as
established by and dependent upon the preservation of
written constitutions.

Now let us see whether upon every ethical, constitutional,
and legal rule the President of the United States was not the
person upon whom this civil-tenure act operated, not as an
executive officer to carry out the law, but as one of the co
ordinate departments of the government over whom in that
official relation the authority of the act was sought to be
asserted. The language is general: "Every removal from
office contrary to the provisions of this act shall be a high
misdemeanor." Who could remove from office but the
President of the United States? Who had the authority?
Who could be governed by the law but he? And it was in
an official constitutional duty, not a personal right, not a
matter of personal value or choice or interest with him.

When, therefore, it is said and claimed that by force of a
legislative enactment the President of the United States
should not remove from office, whether the act of Congress
was constitutional or not, that he was absolutely prohibited
from removing from office, and if he did remove from office,
although the Constitution allowed him to remove, yet the
Constitution could not protect him for removing, but that
the act of Congress, seizing upon him, could draw him in
here by impeachment and subject him to judgment for vio
lating the law, though maintaining the Constitution, and
that the Constitution pronounced sentence of condemnation

IMPEACHMENT OF PRESIDENT JOHNSON 447

and infamy upon him for having worshiped its authority
and sought to maintain it, and that the authority of Congress
has that power and extent practically, you tear asunder
your Constitution, and (if on these grounds you dismiss
this President from this Court convicted and deposed) you
dismiss him the victim of the Congress and the martyr of
the Constitution by the very terms of your judgment, and
you throw open for the masters of us all in the great debates
of an intelligent, instructed, populous, patriotic nation of
freemen the division of sentiment to shake this country to
its centre, "the omnipotence of Congress" as the rallying
cry on one side, and "the supremacy of the Constitution"
on the other.

There is but one other topic that I need to insist upon here
as bearing upon that part of my argument which is intended
to exhibit to the clear apprehension, and I hope adoption,
of this court, the view that all here that possesses weight
and dignity, that really presents the agitating contest which
has been proceeding between the departments of our Govern
ment, is political and not criminal, or suitable for judicial
cognizance; and that is what seems to me the decisive test
in your judgments and in your consciences; and that is
the attitude that every one of you already in your public
action occupies toward this subject.

The Constitution of the United States never intended
so to coerce and constrain the consciences and the duties
of men as to bring them into the position of judges between
themselves and another branch of government in regard to
matters of difference between themselves and that other
branch of Government in matters which concerned wholly
the partition of authority under the Constitution between
themselves and that other department of the Government.
The eternal principles of justice are implied in the constitu
tion of every court, and there are no more immutable, no
more inevitable principles than these, that no man shall be a

448 SPEECHES OF WILLIAM MAXWELL EVARTS

judge in his own cause, and that no man shall be a judge in a
matter in which he has already given judgment. It is
abhorrent to the natural sense of justice that men should
judge in their own cause. It is inconsistent with nature it
self that man should assume an oath and hope to perform
it by being impartial in his judgment when he has already
formed it. The crimes that a President may have imputed
to him that may bring him into judgment of the Senate are
crimes against the Constitution or the laws involving turpi
tude or personal delinquency.

They are crimes in which it is inadmissible to imagine
that the Senate should be committed as parties at all.
They are crimes which, however much the necessary reflec
tion of political opinions may bias the personal judgment of
this or that member, or all the members of the body — an
infirmity in the Court which cannot be avoided — yet it must
be possible only that they should give a color or a turn and
not be themselves the very basis and substance of the judg
ment to be rendered. When, therefore, I show you as from
the records of the Senate that you yourselves have voted
upon this law whose constitutionality is to be determined,
and that the question of guilt or innocence arises upon con
stitutionality or judgment of constitutionality, when you
have in your capacity of a Senate undertaken after the
alleged crime committed, as an act suitable in your judgment
to be performed by you in your relation to the executive
authority and your duty under this Government to pro
nounce, as you did by resolution, that the removal of Mr.
Stanton and the appointment of General Thomas were not
authorized by the Constitution and the laws, you either
did or did not regard that as a matter of political action;
and if you regarded it as a matter of political action, then
you regarded it as a matter that could not possibly be
brought before you in your judicial capacity for you to de
termine upon any personal consequences to the Executive.

IMPEACHMENT OF PRESIDENT JOHNSON 449

How was it a matter for political action unless it was a mat
ter of his political action and the controversy was wholly
of a political nature? If you, on the other hand, had in your
minds the possibility of this extraordinary jurisdiction being
brought into play by a complaint to be moved by the House
of Representatives before you, what an extraordinary spec
tacle do you present to yourselves and to the country! No;
the controlling, the necessary feeling upon which you acted
must have been that "it is a stage and a step in governmental
action concerning which we give this admonition and this
suggestion and this reproof."

In 1834, when the Senate of the United States was debat
ing the question of the resolution condemnatory of General
Jackson's proceedings in reference to the deposits and Mr.
Duane, the question was raised, " Can you, will you, should
you pronounce opinion upon a matter of this kind when
possibly it may be made the occasion, if your views are right,
of an impeachment and of a necessary trial?" The answer
of the great and trusted statesman of the Whig party of that
day was, "If there was in the atmosphere a whisper, if there
was in the future a menace, if there was a hope or a fear,
accordingly as we may think or feel, that impeachment was
to come, debate must be silenced and the resolution sup
pressed." But they recognized the fact that it was mere
political action that was being resorted to, and all that was
or was to be possible; but the complexion of the House, and
the sentiment of the House, and the attitude of the Senate as
claiming it only to be matter of political discussion and
determination, absolutely rejected the notion of impeach
ment, as within the range of discussion and held, there
fore, the debate, a mere political debate and the conclusion
a political conclusion.

There is but one proposition that consists with the truth
of the case and with the situation of you, Senators, here, and
that is that you regarded this as political action and polit-

31

450 SPEECHES OF WILLIAM MAXWELL EVARTS

ical decision, not by possibility a matter of judgment on a
subject to be introduced for judicial consideration. It is
not true that that resolution purports to cover justifiable
guilt; it only expresses an opinion that the state of the law
and the authority of the Constitution did not justify the
action of the President, but it does not impute violence or
design or wickedness of purpose, or other than a justifiable
difference of opinion to resort to an arbiter between you.
But, even in that limited view, I take it no senator can think
or feel that, as a preliminary part of the judgment of a court
that was to end in acquittal or conviction, this proceeding
could be for a moment warranted.

The two gravest articles of impeachment against the
weightiest trial ever introduced into this court, those on
which as large a vote of condemnation was gained as upon
any others, were the two articles against Judge Chase, one
of which brought him in question for coming to the trial
of Fries, in Pennsylvania, with a formed and pronounced
opinion; and another, the third, was for allowing a juryman
to enter the box on the trial of Callender, at Richmond,
who stated that he had formed an opinion.

I would like to see a court of impeachment that regards
this as great matter that a judge should come to a trial and
pronounce a condemnation of the prisoner before the coun
sel are heard, and should allow a juryman to enter the box
who excused himself from having a free mind on the point
discussed as he had formed an opinion, and yet that should
tell us that you, having formed and expressed an opinion,
are to sit here judges on such a matter as this. What is
there but an answer of this kind necessary? The Constitu
tion never brings a Senate into an inculpation and a condem
nation of a President upon matters in which and of which
the two departments of the government in their political
capacities have formed and expressed political opinions.
It is of other matter and of other fault, in which there are

IMPEACHMENT OF PRESIDENT JOHNSON 451

no parties and no discriminations of opinion. It is of offence,
of crime, in which the common rules held by all of duty, of
obligation, of excess, or of sin, are not determinable upon
political opinions formed and expressed in debate.

But the other principle is equally contravened, and this
aids my argument that it is political and not personal or
criminal ; it is that you are to pass judgment of and concern
ing the question of the partition of the offices of this govern
ment between the President and yourselves. The very
matter of his fault is that he claims them; the very matter
of his condemnation is that you have a right to them; and
you, aided by the list furnished by the managers, of forty-
one thousand in number and $21,000,000 of annual emolu
ment, are to sit here as judges whether his mistaken claim and
his appeal to a common arbiter in a matter of this kind is to be
imputed to him as personal guilt and followed by personal
punishment.

How would any of us like to be tried before a judge who,
if he condemned us, would have our houses, and if he ac
quitted us we should have his? So sensitive is the natural
sense of justice on this point that the whole country was in
a blaze by a provision in the fugitive slave law that a com
missioner should have but five dollars if he set the slave
free, and ten dollars if he remanded him. Have honorable
judges of this court forgotten that crisis of the public mind
as to allowing a judge to have an interest in the subject of
his judgment? Have they forgotten that the honorable
senator from Massachusetts in the debate upon this tenure-
of-office act thought that political bias might affect a court
so that it might give judgment of but nominal punishment
for an infraction of the act? And yet you are full of politics.
Why? Because the question is political; and the whole
point of my reference is as an absolute demonstration that
the Constitution of the United States never forces honorable
men into a position where they are judges in their own

452 SPEECHES OF WILLIAM MAXWELL EVARTS

cause, or where they have in the course of their previous
duties expressed a judgment.

I have omitted from this consideration the fact that the
great office itself, if by your judgment it shall be taken from
the elected head of this republic, is to be put in commission
with a member of your own body chosen to-day, and to
morrow, at any time, by yourselves, and that you are taking
the crown of the people's magistracy and of the people's
glory to decorate the honor of the Senate. An officer who,
by virtue of your favor, holds the place of President pro
tempore of your body adds the Presidency to its duties by
the way; and an officer changeable from day to day by you
as you choose to have a new President pro tempore, who by
the same title takes from day to day the discharge of the
duties of President of the United States.

When the prize is that, and when the circumstances are as
I have stated, Senators must decline a jurisdiction upon this
demonstration that human nature and human virtue can
not endure that men should be judges in such a strife. I
will agree your duty keeps you here. You have no right
to resign or avoid it; but it is a duty consistent with judicial
fairness, and only to be assumed as such; and the subject
itself, thus illustrated, snatches from you at once, as wholly
political, the topics that you have been asked to examine.

It will suit my convenience and sense of the better con
sideration of the separate articles of impeachment to treat
them at first somewhat generally, and then, by such distri
bution as seems most to bring us finally to what, if it shall
not before that time have disappeared, appears to be the
gravest matter of consideration.

Let me ask you at the outset to see how little as matter of
evidence this case is. Certainly this President of the
United States has been placed under as trying and as hot a
gaze of political opposition as ever a man was or could be.
Certainly for two years there has been no partial construe-

IMPEACHMENT OF PRESIDENT JOHNSON 453

tion of his conduct. Certainly for two years he has been
sifted as wheat by one of the most powerful winnowing
machines that I have ever heard of — the House of Repre
sentatives of the United States of America. Certainly the
wealth of the nation, certainly the urgency of party, cer
tainly the zeal of political ambition, have pressed into the
service of imputation, of inculpation, and of proof all that
this country affords, all that the power "to send for persons
and papers " includes.

They have none of the risks that attend ordinary litigants
of bringing their witnesses in court to stand the test of open
examination and cross-examination; but they can put them
under the constriction of an oath and an exploration in
advance and see what they can prove, and so determine
whom they will bring and whom they will reject. They
can take our witness from the stand already under oath,
and even of so great and high a character as the Lieutenant
General of your armies, and out of court ply him with a new
oath and a new examination to see whether he will help or
hurt them by being cross-examined in court. Every arm
and every heart is at their service, stayed by no sense except
of public duty to unnerve their power or control its exercise.

And yet here is the evidence. The people of this country
have been made to believe that all sorts of personal vice
and wickedness, that all sorts of official misconduct and
folly, that all sorts of usurpation and oppression, practiced,
meditated, plotted, and executed on the part of this Execu
tive, were to be explored and exposed by the prosecution
and certainly set down in the record of this court for the
public judgment. Here you have for violence, oppression,
and usurpation, a telegram between the President and Gov
ernor Parsons, long public, two years ago. You have for
his desire to suppress the power of Congress the testimony
of Wood, the office-seeker, that when the President said
he thought the points were important he said that he thought

454 SPEECHES OF WILLIAM MAXWELL EVARTS

they were minor, and that he was willing to take an office
from the President and yet uphold Congress; that the
President said they were important, and he thought the
patronage of the government should be in support of those
principles which he maintained, and Wood, the office-
seeker, went home and was supposed to have said that the
President had used some very violent and offensive words
on the subject, and he was brought here to prove them,
and he disproved them.

Now, weigh the testimony upon the scale that a nation
looks at it, upon the scale that foreign nations look at it,
upon the scale that history will apply to it, upon the scale
that posterity will in retrospect regard it. It depends a
good deal upon how large a selection a few specimens of
testimony could offer. If I bring a handful of wheat marked
by rust and weevil, and show it to my neighbor, he will say,
"Why, what a wretched crop of wheat you have had"; but
if I tell him "these few kernels are what I have taken from
the bins of my whole harvest," he will answer, "What a
splendid crop of wheat you have had." And now answer,
answer if there is anything wrong in this. Mr. Manager
Wilson, from the Judiciary Committee, that had examined
for more than a year this subject, made a report to the
House. It is the wisest, the clearest, and also one of the most
entertaining views of the whole subject of impeachment
in the past and in the present that I have ever seen or can
ever expect to see, and what is the result? That it is all
political. All these thunder-clouds are political, and it is
only this little petty pattering of rain and these infractions
of statutes that are personal or criminal. And "the grand
inquest of the nation" summoned to the final determination
upon the whole array, on the 9th of December, 1867, votes
107 to 57, "no impeachment." If these honorable managers
had limited their addresses to this court to matters that in
purpose, in character, in intent, and in guilt, occurred after

IMPEACHMENT OF PRESIDENT JOHNSON 455

that bill of impeachment was thrown out by their house,
how much you would have been entertained in this cause!
I have not heard anything that had not occurred before that.
The speeches were made eighteen months before. The
telegram occurred a year before. Wood, the office-seeker,
came into play long before. What is there, then, not cov
ered by this view?

The honorable managers, too, do not draw together
always about these articles. There seems to have been
an original production, and then a sort of afterbirth that
is added to the compilation, and as I understand the open
ing manager [Mr. Butler], if there is not anything in the
first article you need not trouble yourself to think there is
anything in the eleventh; and Mr. Manager Stevens thinks
that if there is not anything in the eleventh you had better
not bother yourself in looking for anything in the first ten,
for he says a county-court lawyer, I think, could get rid of
them. Let me give you his exact words :

I wish this to be particularly noticed, for I intend to offer it as
an amendment. I wish, gentlemen, to examine and see that this
charge is nowhere contained in any of the articles reported, and
unless it be inserted there can be no trial upon it; and if there be
the shrewd lawyers, as I know there will be, and cavilling judges —

He did not state that he felt sure of that —

and without this article they do not acquit him, they are greener
than I was in any case I ever undertook before the court of quarter
sessions.

It will not be too vain in us to think that we come up
perhaps to this estimate on our side, and at this table, of
these quarter-session lawyers that would be adequate to dis
pose of these articles of impeachment; and they are right
about it, quite right about it. If you cannot get in what is
political and nothing but political, you cannot get hold of
anything that is criminal or personal.

456 SPEECHES OF WILLIAM MAXWELL EVARTS

Now, with that general estimate of the limit and feeble
ness of the proofs and of the charges, I begin with the con
sideration of an article in regard to which, and the subject-
matter of which, I am disposed to concede more than I
imagine can be claimed fairly in regard to the other articles,
that some proof to the point of demonstration has been
presented, and that is the speeches. I think that it has been
fairly proved here that the speeches charged upon the
President, in substance and in general, were made. My
first difficulty about them is that they were made in 1866,
and related to a Congress that has passed out of existence,
and were a subject in the report of the Judiciary Committee
to the House, upon which the House voted that they would
not impeach. My next is that they are crimes against
rhetoric, against oratory, against taste, and perhaps against
logic, but that the Constitution of the United States neither
in itself nor by any subsequent amendments has provided
for the government of the people of this country in these
regards. It is a novelty in this country to try anybody
for making a speech.

There are a great many speeches made in this country,
and therefore the case undoubtedly would have arisen in the
course of eighty years of our Government. Indeed, I believe
if there is anything that marks us, and to the approval, at
least in ability, of other nations, it is that any man in this
country not only has a right to make a speech, but can make
a speech and a good one, and that he does some time or
other in his life actually accomplish it. Why, the very
lowest epithet for speech-making in the American public
adopted by the newspapers is "able and eloquent." I
have seen applied to the efforts of the honorable managers
here the epithet, in advance in the newspapers, of "tre
mendous" before they have been delivered here, of "tremen
dous force"; and I saw once an accurate arithmetical
statement of the force of one of them in advance that it con
tained thirty-three thousand words.

IMPEACHMENT OF PRESIDENT JOHNSON 457

We are speech-makers; therefore the case must have arisen
for a question of propriety; and now for the first time we
begin with the President, and accuse him; we take him
before no ordinary court, but organize a court for the pur
pose, which adjourns the moment it is over with him, fur
nishes no precedent, and must remove him from office and
order a new election. That is a great deal to turn on a
speech. Only think of it! To be able to make a speech
that should require a new election of a President to be held!
Well, if the trial is to take place, let the proclamation issue
to this speech-making people, "let him that is without sin
among you cast the first stone' ' ; and see how the nation on
tiptoe waits; but who will answer that dainty challenge and
who assume that fastidious duty? We see in advance the
necessary requirements. It must be one who by long disci
pline has learned always to speak within bounds, one whose
lips would stammer at an imputation, whose cheek would
blush at a reproach, whose ears would tingle at an invective
and whose eyes would close at an indecorum. It must be
one who by strict continence of speech and by control over
the tongue, that unruly member, has gained with all his
countrymen the praise of ruling his own spirit, which is
greater than one who taketh a city.

And now the challenge is answered; and it seems that the
honorable manager to whom this duty is assigned is one who
would be recognized at once in the judgment of all as first
in war, first in peace in boldness of words, first in the hearts
of all his countrymen that love this wordy intrepidity.
Now, the champion being gained, we ask for the rule, and
in answer to an interlocutory inquiry which I had the
honor to address to him, he said the rule was the opinion of
the Court that was to try the case.

Now, let us see whether we can get any guidance as to
what your opinions are on this subject of freedom of speech;
for we are brought down to that, having no law or precedent

458 SPEECHES OF WILLIAM MAXWELL EVARTS

besides. I find that the matter of charge against the
President is that he has been "unmindful of the harmony
and courtesies which ought to exist and be maintained be
tween the executive and legislative branches of the govern
ment." If it prevails from the executive toward the legis
lative, it should prevail from the legislative toward the execu
tive, upon the same standard, unless I am to be met with
what I must regard as a most novel view presented by Mr.
Manager Williams in his argument the other day, that
as the Constitution of the United States prevents your
being drawn in question anywhere for what you say, there
fore it is a rule that does not work both ways. Well,
that is a remarkable view of personal duty, that if I wore
an impenetrable shirt of mail, it is just the thing for me
to be drawing daggers against everybody else that is met in
the street. "Noblesse oblige" seems to be a law which the
honorable manager does not think applicable to the houses
of Congress. If there be anything in that suggestion, how
should it guard, reduce, and regulate your use of freedom of
speech? I have not gone outside of the debates that relate
to this civil-tenure act; my time has been sufficiently occu
pied in reading all that was said in both houses on that
subject; but I find now a well-recorded precedent not merely
in the observations of a single Senator, but in a direct deter
mination of the Senate itself passing upon the question what
certain bounds at least of freedom of speech as between the
two departments of the Government permitted. The hon
orable senator from Massachusetts, in the course of the
debate, using this form of expression in regard to the Presi
dent said, and on the subject of this very law:

You may ask protection, against whom? I answer plainly,
protection against the President of the United States. There,
sir, is the duty of the hour. Ponder it well, and do not forget it.
There was no such duty on our fathers; there was no such duty on
our recent predecessors in this chamber, because there was no

IMPEACHMENT OF PRESIDENT JOHNSON 459

President of the United States who had become the enemy of his
country. (Congressional Globe, 2d sess. 39th Congress, p. 525.)

The President had said that Congress was "hanging on
the verge of the government"; but here is a direct charge
that the President of the United States is an enemy of the
country. Mr. Sumner being called to order for this expres
sion, the honorable Senator from Rhode Island [Mr. An
thony], who not unfrequently presides with so much ur
banity and so much control over your deliberations, gave
this aid to us as to what the common law of this tribunal
was on the subject of the harmonies and courtesies that
should prevail between the legislative and the executive
departments . He said :

It is the impression of the Chair that those words do not exceed
the usual latitude of debate which has been permitted here.

Is not that a good authority, the custom of the tribunal
established by the presiding officer? Mr. Sherman, the
honorable Senator from Ohio, said :

I think the words objected to are clearly in order. I have heard
similar remarks fifty times without any question of order being
raised.

Communis error facit jus. That is the principle of this
view; and the Senate came to a vote, the opposing numbers
of which remind me of some of the votes on evidence that
we have had in this trial; the appeal was laid on the table
by 29 yeas to 10 nays.

We shall get off pretty easy from a tribunal whose "usual
latitude of debate" permits the legislative branch to call
the Executive an enemy of his country. But that is not all.
Proceeding in the same debate, after being allowed to be in
order, Mr. Sumner goes on with a speech, the eloquence of
which I cannot be permitted to compliment, as it is out of
place, but certainly it is of the highest order, and of course

460 SPEECHES OP WILLIAM MAXWELL EVARTS

I make no criticism upon it ; but he begins with an announce
ment of a very good principle:

Meanwhile I shall insist always upon complete freedom of de
bate, and I shall exercise it. John Milton, in his glorious aspira
tions, said "Give me the liberty to know, to utter, and to argue
freely, above all liberties." Thank God, now that slave-masters
have been driven from this chamber, such is the liberty of an
American Senator! Of course there can be no citizen of a republic
too high for exposure, as there can be none too low for protection.
The exposure of the powerful and the protection of the weak —
these are not only invaluable liberties but commanding duties.

Is there anything in the President's answer that is nobler
or more thoroughgoing than that? And if the President is
not too high, but that it should be not only an invaluable
liberty but a commanding duty to call him an enemy of
the country, may not the House of Representatives be ex
posed to an imputation of a most unintelligible aspersion
upon them that they "hang on the verge of the government " ?
Then the honorable Senator proceeds with a style of obser
vation upon which I shall make no observation whatever,
and I feel none, but Cicero, in In Catalinam, In Verrem, and
in Pro Milone, does not contain more eloquence against the
objects of his invective than this speech of the honorable
Senator. Here are his words:

At last the country is opening its eyes to the actual condition
of things. Already it sees that Andrew Johnson who came to
supreme power by a bloody accident, has become the successor
of Jefferson Davis in the spirit by which he is governed and in the
mischief he is inflicting on his country. It sees the president
of the rebellion revived in the President of the United States. It
sees that the violence which took the life of his illustrious prede
cessor is now by his perverse complicity extending throughout the
rebel States, making all who love the Union its victims and filling
the land with tragedy. It sees that the war upon the faithful
Unionists is still continued under his powerful auspices, without

IMPEACHMENT OF PRESIDENT JOHNSON 461

any distinction of color, so that all, both white and black, are sac
rificed. It sees that he is the minister of discord, and not the
minister of peace. It sees that, so long as his influence prevails,
there is small chance of tranquillity, security, or reconciliation;
that the restoration of prosperity in the rebel States, so much
longed for, must be arrested; that the business of the whole
country must be embarrassed, and that those conditions on which
a sound currency depends must be postponed. All these things
the country now sees. But indignation assumes the form of judg
ment when it is seen also that this incredible, unparalleled, and
far-reaching mischief, second only to the rebellion itself, of which
it is a continuation, is invigorated and extended through a plain
usurpation. . . . V':

The President has usurped the powers of Congress on a colossal
scale, and he has employed these usurped powers in fomenting the
rebel spirit and awakening anew the dying fires of the rebellion.
Though the head of the executive, he has rapaciously seized the
powers of the legislative, and made himself a whole Congress, in
defiance of a cardinal principle of republican government that each
branch must act for itself without assuming the powers of the
others; and in the exercise of these illegitimate powers, he has
become a terror to the good and a support to the wicked. This is
his great and unpardonable offence, for which history must con
demn him if you do not. He is a usurper, through whom infinite
wrong has been done to his country. He is a usurper, who,
promising to be a Moses, has become a Pharaoh. (Congressional
Globe, 2d sess., 39th Congress, p. 541.)

And then it all ends in a wonderfully sensible — if the
h onorable Senator will allow me to say so — and pithy obser
vation of the honorable Senator from Wisconsin [Mr. Howe] :

The Senator from Massachusetts has advanced the idea that the
President has become an enemy to his country. . . . But I
suppose that not only to be the condition of the sentiment in this
Senate touching the present President of the United States, but
I suppose we never had a President who was not in communication
with a Senate divided upon just that question, some thinking
that he was an enemy of the country and others thinking that he

462 SPEECHES OF WILLIAM MAXWELL EVARTS

was not; and I respectfully submit, therefore, that the Senator
from Massachusetts will be competent to try an impeachment if
it should be sent here against the President, as I conceive the Sena
tor from Maryland would be competent to try that question in
spite of the opinion which he has pronounced here. (Ibid., p. 545.)

That is good sense. Senatorial license must, if it goes so
wide as this, sometimes with good-natured Senators be
properly described as a little Pickwickian.

We have also a rule provided for us in the House of
Representatives, and I have selected a very brief one,
because it is one that the honorable managers will not
question at all, as it gives their standard on the subject. I
find that there this rule of license in speech, in a very brief,
pithy form, is thus conducted between two of the most dis
tinguished members of that body, who can, as well as any
others, for the purpose of this trial, furnish a standard of
what is called by the honorable manager "propriety of
speech." I read from page 263 of the Congressional Globe
for the fortieth Congress, first session:

Mr. Bingham: I desire to say, Mr. Chairman, that it does not
become a gentleman who recorded his vote fifty times for Jefferson
Davis, the arch traitor in this rebellion, as his candidate for
President of the United States, to undertake to damage this cause
by attempting to cast an imputation either upon my integrity or
my honor. I repel with scorn and contempt any utterance of that
sort from any man, whether he be the hero of Fort Fisher not taken
or of Fort Fisher taken. [Laughter.]

Now for the reply:

Mr. Butler: But if during the war the gentleman from Ohio
did as much as I did in that direction I shall be glad to recognize
that much done. But the only victim of the gentleman's prowess
that I know of was an innocent woman hung upon the scaffold,
one Mrs. Surratt. And I can sustain the memory of Fort Fisher
if he and his present associates can sustain him in shedding the
blood of a woman tried by a military commission and convicted
without sufficient evidence, in, my judgment.

IMPEACHMENT OF PRESIDENT JOHNSON 463

To which, on page 364, Mr. Bingham responds with spirit:

I challenge the gentleman, I dare him here or anywhere in this
tribunal, or in any tribunal, to assert that I spoliated or mutilated
any book. Why, sir, such a charge, without one tittle of evidence,
is only fit to come from a man who lives in a bottle and is fed
with a spoon. [Laughter.]

Now, what under heaven that means I am sure I do
not know, but it is within the common law of courtesy
in the judgment of the House of Representatives. We
have attempted to show that in the President's addresses
to the populace there was something of irritation, something
in the subjects, something in the manner of the crowd that
excused and explained, if it did not justify, the style of his
speech. You might suppose that this interchange in debate
grew out of some subject that was irritating, that was itself
savage and ferocious; but what do you think was the sub
ject these honorable gentlemen were debating upon? Why,
it was charity. The question of charity to the South
was the whole staple of the debate; "charity," which
"suffereth long and is kind." "Charity envieth not."
"Charity vaunteth not itself, is not puffed up." Charity
"doth not behave itself unseemly, seeketh not her own, is
not easily provoked, thinketh no evil, rejoiceth not in
iniquity, but rejoiceth in the truth, beareth all things,
belie veth all things, hopeth all things, endureth all things;
charity never faileth." But, then, the Apostle adds, which
I fear might not be proved here, "tongues may fail."

Now, to be serious, in a free republic who will tolerate this
fanfaronade about speech-making? "Quis tulerit Gracchos
de seditione querentes?"

Who will tolerate public orators prating about propriety
of speech? Why cannot we learn that our estimate of
others must proceed upon general views, and not vary
according to particular passions or antipathies? When

464 SPEECHES OF WILLIAM MAXWELL EVARTS

Cromwell in his career through Ireland, in the name of the
Parliament, had set himself down before the town of Ross
and summoned it to surrender, exhausted in its resistance,
this Papist community asked to surrender only upon the
conditions of freedom of conscience. Cromwell replied:
"As to freedom of conscience, I meddle with no man's
conscience; but if you mean by that liberty to celebrate
the mass, I would have you understand that in no place
where the power of the Parliament of England prevails shall
that be permitted." So, freedom of speech the honorable
managers in their imputation do not complain of; but if
anybody says that the House of Representatives hangs
upon the verge of the Government, we are to understand
that in no place where the power of the two houses of
Congress prevails shall that degree of liberty be enjoyed,
though they meddle with no man's propriety or freedom of
speech.

Mr. Jefferson had occasion to give his views about the
infractions upon freedom of writing that the sedition law
introduced in the legislature of this country, and at the
same time some opinion about the right of an Executive to
have an opinion about the constitutionality of a law and to
act accordingly; and I will ask your attention to brief ex
tracts from his views. Mr. Jefferson, in a letter to Mr.
President Adams, written in 1804 (Jefferson's Works, vol. 3,
p. 555), says:

I discharged every person under the punishment or prosecution
under the sedition law, because I considered and now consider
that law to be a nullity as absolute and as palpable as if Congress
had ordered us to fall down and worship a golden image, and that
it was as much my duty to arrest its execution in every stage as it
would have been to have rescued from the fiery furnace those who
should have been cast into it for refusing to worship the image.
It was accordingly done in every instance, without asking what
the offenders had done or against whom they had offended, but

IMPEACHMENT OF PRESIDENT JOHNSON 465

whether the pains they were suffering were inflicted under the
pretended sedition law.

And in another letter he replies to some observations
against this freedom of the Executive about the constitu
tionality of laws :

You seem to think it devolved on the judges to decide on the
validity of the sedition law; but nothing in the Constitution has
given them a right to decide for the Executive more than for the
Executive to decide for them. Both magistrates are equally
independent in the sphere of action assigned to them. The judges
believing the law constitutional, had a right to pass a sentence of
fine and imprisonment, because the power was placed in their
hands by the Constitution; but the Executive believing the law
to be unconstitutional, were bound to remit the execution of it,
because that power had been confided to them by the Constitution.
That instrument meant that its co-ordinate branches should be
checks on each other; but the opinion which gives the judges the
right to decide what laws are constitutional and what not, not only
for themselves in their own sphere of action, but for the legislature
and Executive also in their sphere, would render the judiciary a
despotic branch.

We have no occasion and have not asserted the right to
resort to these extreme opinions which it is known Jefferson
entertained. The opinions of Madison, more temperate but
equally thorough, were to the same effect. The co-ordinate
branches of the Government must surrender their co-ordi
nation whenever they allow a past rescript to be a final
bar to renewing or presenting constitutional questions for
reconsideration and redetermination, if necessary, even, by
the Supreme Court.

But we have here some instances of the courtesy prevail
ing in the different branches of the Government in the very
severe expression of opinion that Mr. Manager Boutwell
indulged in in reference to the heads of departments. That
is an executive branch of the Government; and here you are

32

466 SPEECHES OF WILLIAM MAXWELL EVARTS

sitting in these halls, and the language used was as much
severer, as much more degrading to that branch of the
Government than anything said by the President in refer
ence to Congress as can be imagined. Exception here is
taken to the fact that the President called congressmen, it
is said, in a telegram, "a set of individuals." We have
heard of an old lady not well instructed in long words who
got very violent at being called an individual, because she
supposed it was opprobrious. But here we have an impu
tation in so many words that the heads of departments are
"serfs of a lord, servants of a master, slaves of an owner."
And yet in this very presence sits the eminent Chief Justice
of the United States, and the eminent Senator from Maine
(Mr. Fessenden), and the distinguished Senator from Penn
sylvania (Mr. Cameron), all of whom have held cabinet
offices by this tenure, thus decried and derided; and if I were
to name the Senators who aspire in the future to hold these
degraded positions, I am afraid I should not leave judges
enough here to determine this cause. All know that
this is all extravagance. "Est modus in rebus; sunt certi
denique fines."

There is some measure in things. There is some limit to
the bounds of debate and discussion and imputation. I
will agree that nothing could be more unfortunate than the
language used by the President as offending the serious and
religious tastes and feelings of a community, in the observa
tions which he was drawn into by a very faulty method of
reasoning, in a speech that he made at St. Louis. The
difficulty is, undoubtedly, that the President is not familiar
with the graces taught at schools, the costly ornaments
and studied contrivances of speech, but that he speaks
right on; and when an obstacle is presented in his path he
proceeds right over it. But here is a rhetorical difficulty for a
man not a rhetorician. An illusive metaphorical suggestion
has been made that he is a Judas. If anybody — I do not

IMPEACHMENT OF PRESIDENT JOHNSON 467

care how practiced he is — undertakes to become logical
with a metaphor, he will get into trouble at once; and that
was the President's difficulty. He looked around with the
eye of a logician and said, " Judas's fault was the betrayal of
all goodness. Where is the goodness that I have betrayed? "
And the moment, therefore, that you seek to be logical by
introducing the name of the Divinity against whom he had
thus sinned, of course you would produce that offence and
shock to our senses which otherwise would not have been
occasioned.

I am not entirely sure that when you make allowances
for the difference between an ex tempore speech of the Presi
dent to a mob, and a written, prepared, and printed speech
to this Court, by an honorable manager, but that there may
be some little trace of the same impropriety in that figure of
argument which presented Mr. Carpenter to your observa
tion as an inspired painter, whose pencil was guided by the
hand of Providence to the apportionment of Mr. Stanton
to perpetual bliss, and of Governor Seward to eternal pains.
But all that is matter of taste, matter of feeling, matter of
discretion, matter of judgment.

The serious views impressed upon you with so much force
by the counsel for the President who opened this cause for
us, and supported by the quotations from Mr. Madison,
present this whole subject in its proper aspect to an American
audience. I think that if our newspapers would find some
more discriminating scale of comment on speeches than to
make the lowest scale "able and eloquent," we should
have a better state of things in public addresses.

Our position in regard to the speeches is, that the circum
stances produced in truth should be considered, that words
put into the speaker's mouth from the calls of the crowd,
ideas suddenly raised by their unfriendly and impolite sug
gestions, are to have their weight, and that without apolo
gizing, for no man is bound to apologize before the law or

468 SPEECHES OF WILLIAM MAXWELL EVARTS

before the Court for the exercise of freedom of speech, it
may be freely admitted that it would be very well if all men
were accomplished rhetoricians, finished logicians, and had a
bridle on their tongues.

And now, without pausing at all upon the eleventh article,
which I leave to the observations of the honorable managers
among themselves to dispose of, I will take up the Emory
article. The Emory article is an offence which began and
ended on the 22d of February, and is comprised within a
half hour's conversation between the President and a general
of our armies.

I dare say that in the rapid and heated course of this im
peachment through the House of Representatives it may
have been supposed by rumor, uncertain and amplified,
that there had occurred some kind of military purpose or
intention on the part of the President that looked to the
use of force; but under these proofs what can we say of it
but that the President received an intimation from Secre
tary Welles that all the officers were being called away from
what doubtless is their principal occupation in time of peace,
attendance upon levees, were summoned, as they were from
the halls of revelry at Brussels to the battle of Waterloo,
and it was natural to inquire when and where this battle
was to take place; and the President, treating it with very
great indifference, said he did not know anything about
General Emory, and did not seem to care anything about it ;
but finally, when Secretary Welles said, "You had better
look into it," he did look into it, and there was a conver
sation which ended in a discussion of constitutional law
between the President and the general, in which the general,
re-enforced by Mr. Reverdy Johnson, a lawyer, and Mr.
Robert J. Walker, a lawyer, actually put down the
President entirely! Now, if he ought to be removed from
office for that, and a new election ordered for that,
you will so determine in your judgment; and if any other

IMPEACHMENT OF PRESIDENT JOHNSON 469

President can go through four years without doing some
thing worse than that, we shall have to be more careful in
the preliminary examinations in our nominating conventions.
I understand this article to be hardly insisted upon.

Then come the conspiracy articles. The conspiracy con
sists in this: It was all commenced and completed in writing;
the documents were public; they were immediately promul
gated, and that is the conspiracy, if it be one. It is quite
true that the honorable Manager, who conducted with so
much force and skill the examinations of the witnesses, did
succeed in proving that besides the written orders handed
by the President of the United States to General Thomas,
there were a few words of attendant conversation, and those
words were, "I wish to uphold the Constitution and the
laws," and an assent of General Thomas to the propriety
of that course. But by the power of our profession the
learned Manager made it evident, by the course of his
examination, in which he asked the witness if he had ever
heard those words used before when a commission was de
livered to him and received for reply that he had not, and
that it was not routine, that they carried infinite gravity of
suspicion !

What is there that we cannot believe in the power of coun
sel to affix upon innocent and apparently laudable expressions
these infinite consequences of evil surmise, when we remem
ber how, in a very celebrated trial, "chops and tomato
sauce" were to go through the service of getting a verdict
from a jury on a question of a breach of promise of
marriage? Now, "chops and tomato sauce" do not im
port a promise of marriage; there is not the least savor
of courtship nor the least flavor of flirtation, even, in
them; but it is in "the hidden meaning." And so "the
Constitution and the laws," by these two men, at mid
day, and in writing, entering into a conspiracy, mean, we
are told, bloodshed, civil commotion, and war! Well, I

470 SPEECHES OP WILLIAM MAXWELL EVARTS

cannot argue against it. Cardinal Wolsey said that in
political times you could get a jury that would bring in a
verdict that Abel killed Cain; and it may be that an American
Senate will find that in this allusion to the Constitution and
the laws is found sufficient evidence to breed from it a pur
pose of commotion and civil war.

But the conspiracy articles have but a trivial foundation
to rest upon. Here we have a statute passed at the eve of
the insurrection intended to guard the possession of the
offices of the United States from the intrusion of intimida
tion, threats, and force, to disable the public service. It is,
in fact, a reproduction of the first section of the sedition act
of 1798 somewhat amplified and extended. It is a law
wholly improper in time of peace, for, in the extravagance
of its comprehension, it may include much more than should
be made criminal, except in times of public danger. But
the idea that a law intended to prevent rebels at the south,
or rebel sympathizers, as they were called, at the north,
from intimidating officers in the discharge of their public
duty, should be wrested to an indictment and trial of a
President of the United States and an officer of the army
under a written arrangement of orders to take possession
of and administer one of the departments of the Government
according to law, is wresting a statute wholly from its
application. We are all familiar with the illustration that
Blackstone gives us of the impropriety of following the lit
eral words of a statute as against a necessary implication,
when he says that a statute against letting blood in the
street could not properly support an indictment against a
surgeon for tapping the vein of an apoplectic patient who
happened to have fallen on the sidewalk. And there is no
greater perversity or contrariety in this effort to make this
statute applicable to orderly and regular proceedings between
recognized officers of the United States in the disposition of
an office than there would be in punishing the surgeon for
relieving the apoplectic patient.

IMPEACHMENT OF PRESIDENT JOHNSON 471

I did not fully understand, though I carefully attended
to, the point of the argument of the learned Manager [Mr.
Boutwell], who, with great precision and detail, brought
into view the common law of Maryland as adopted
by Congress for the Government in the domestic and ordi
nary affairs of life of the people in this District; but if I did
rightly understand it, it was that, though there was nothing
in the penal code of the District, and although the act of
1801 did not attempt to make a penal code for the District,
yet somehow or other it became a misdemeanor for the
President of the United States, in his official functions, to do
what he did do about this office, because it was against the
common law of Maryland as applied in this District.

I take it that I need not proceed on this subject any
further. The common law has a principle that when the
common law stigmatizes a malum in se and a felony it may
be a misdemeanor at common law to attempt it and to use
the means. But the idea that when a statute makes malum
prohibition, and affixes a punishment to it if executed the
common law adds to that statutory malum prohibitum and
punishment a common law punishment, for attempting it,
when the statute itself has not included an attempt within
it, I apprehend is not supported by any authority or any
view of the law; and I must think that it cannot be supposed
in the high forum of a £ourt of impeachment as making a
high crime and misdemeanor, that the President of the
United States, in determining what his powers and duties
were in regard to filling offices, should have looked into the
common law of the District of Columbia because the offices
are inside of the District.

Then, upon the views presented of the conspiracy articles,
let us see what the evidence is. There was no preparation
or meditation of force; there was no application of force;
there was no threat of force authorized on the part of the
President; and there was no expectation of force, for he

472 SPEECHES OF WILLIAM MAXWELL EVARTS

expected and desired nothing more and nothing less than
that, by the peaceful and regular exercise of authority on his
part, through the ordinary means of its exercise, he should
secure obedience, and if, disappointed in that, obedience
should not be rendered, all that the President desired or
expected was that, upon that legal basis thus furnished by
his official action, there should be an opportunity of taking
the judgment of the courts of law.

Now, there seems to be left nothing but those articles that
relate to the ad interim appointment of General Thomas and
to the removal of Mr. Stanton. I will consider the ad
interim appointment first, meaning to assume, for the pur
pose of examining it as a possible crime, that the office had
been vacated and was open to the action of the President.
If the office was full, then there could be no appointment by
the authority of the President or otherwise. The whole
action of the President manifestly was based upon the idea
that the office was to be vacated before an ad interim ap
pointment could possibly be made, or was intended to take
effect.

The letter of authority accompanied the order of removal
and was, of course, secondary and ancillary to the order of
removal, and was only to take up the duties of the office and
discharge them if the Secretary of War should leave the office
in need of such temporary charge.

I think that the only circumstance we have to attend to
before we look precisely at the law governing ad interim
appointments is some suggestion as to any difference be
tween ad interim appointments during the session of the
Senate and during the recess. The honorable Managers,
perhaps all of them, but certainly the honorable Manager,
Mr. Boutwell, has contended that the practice of the Govern
ment in regard to removals from office covered only the case
of removals during the recess of the Senate. It will be part
of my duty and labor when I come to consider definitely the

IMPEACHMENT OF PRESIDENT JOHNSON 473

question of the removal of Mr. Stanton to consider that
point, but for the purpose of General Thomas's appointment
no such discrimination needs to be made. The question
about the right of the Executive to vacate an office, as to be
discriminated between recess and session, arises out of the
constitutional distinction that is taken, to wit: that he can
only fill an office during session by and with the advice and
consent of the Senate, and that he can during the recess, com
mission — it is not called filling the office, or appointing,—
but commission by authority, to expire with the next session.

But ad interim appointments do not rest upon the Consti
tution at all. They are not regarded, they never have been
regarded as an exercise of the appointing power in the sense
of filling an office. They are regarded as falling within
either the executive or legislative duty of providing for a
management of the duties of the office before an appoint
ment is or can properly be made. In the absence of legis
lation it might be said that this power belonged to the
Executive; that a part of his duty was, when he saw that
accident had vacated an office or that necessity had required
a removal, under his general authority and duty to see that
the laws are executed, he should provide that the public
service should be temporarily taken up and carried on. I
do not think that that is an inadmissible constitutional
conclusion.

But it might equally well be determined that it was a
casus omissus, for which the Constitution had provided no
rules and which the legislation of Congress might properly
occupy. From the beginning, therefore, as early as 1792 and
1789, indeed, provision is made for temporary occupation
of the duties of an office, and the course of legislation was
this: the eighth section of the act of 1792, regulating three
of the departments, provided that temporary absence and
disabilities of the heads of departments, leaving the office
still full, might be met by appointments of temporary per-

474 SPEECHES OF WILLIAM MAXWELL EVARTS

sons to take charge. The act of 1795 provided that in case of
a vacancy in the office there might be power in the Executive
which would not require him to fill the office by the consti
tutional method, but temporarily to provide for a discharge
of its duties. Then came the act of 1863, which in terms
covers to a certain extent but not fully both of these predica
ments; and I wish to ask your attention to some circum
stances in regard to the passage of that act of 1863. I
have said that the eighth section of the act of 1792 provides
for filling temporarily, not vacancies, but disabilities. In
January, . 1863, the President sent to Congress this brief
message, and Senators will perceive that it relates to this
particular subject:

To the Senate and House of Representatives:

I submit to Congress the expediency of extending to other
departments of the government the authority conferred on the
President by the eighth section of the act of the 8th of May, 1792,
to appoint a person to temporarily discharge the duties of Secre
tary of State, Secretary of the Treasury, and Secretary of War, in
case of the death, absence from the seat of government, or sick
ness of either of those officers.

ABRAHAM LINCOLN.
Washington, January 2, 1863.

That is to say, the temporary disability provision of the
act of 1792, which covered all the departments then in exis
tence, had never been extended by law to cover the other
departments, and the President desired to have that act
extended. The act of 1795 did not need to be extended, for
it covered "vacancies" in its terms and was applicable to
other departments, and vacancies were not in the mind of
the President, nor was there any need of a provision of law
for them. This message having been referred to the Judi
ciary Committee, the honorable Senator from Illinois [Mr.
Trumbull], the chairman of that committee, made a very

IMPEACHMENT OF PRESIDENT JOHNSON 475

brief report; I believe this is the whole of it, or rather a
brief statement in his place concerning it, in which he said:

There have been several statutes on the subject, and as the laws
now exist the President of the United States has authority tempo
rarily to fill the office of Secretary of State and Secretary of War
with one of the other Secretaries by calling some person to discharge
the duties.

The other department was the Treasury.

We received communications from the President of the United
States asking that the law be extended to the other executive
departments of the government, which seems to be proper; and
we have framed a bill to cover all of those cases, so that whenever
there is a vacancy the President may temporarily devolve the duty
of one of the cabinet ministers on another cabinet minister, or
upon the chief officer in the department for the time being.

Here there does not seem to have been brought to the
notice in terms of the Senate or of the honorable Senator the
act of 1795; nothing is said of it; and it would appear,
therefore, as if the whole legislation of 1863 proceeded upon
the proposition of extending the act of 1792 as to disabilities
in office, not vacancies, except that the honorable Senator
uses the phrase "vacancies," and that he speaks of having
provided for the occasions that might arise. The act of
1863 does not cover the case of vacancies except by resig
nation, and it is not therefore, a vacancy act in full. It
does add to the disabilities which the President had asked
to have covered, a case of resignation which he did not ask to
have covered, and which did not need to be covered by new
legislation, because the act of 1795 embraced it. But this
act of 1863 does not cover all the cases of vacancy. It does
not cover vacancies by removal, if removal could be made and
we supposed it could in 1863; it does not cover the case of
expiration of office, which is a case of vacancy, provided
there are terms to office.

476 SPEECHES OF WILLIAM MAXWELL EVARTS

Under that additional light it seems as if the only question
presented of guilt on the part of the President in respect
to the appointment to office ad interim was a question of
whether he violated a law. But Senators will remark the
very limited form in which that question arises. It is not
pretended that the appointment of Thomas, if the office
was vacant, was a violation of the civil-tenure act; that is,
it is not pretended in argument, although perhaps it may be
so charged in the articles; because an examination of the
act shows that the only appointments prohibited there, and
the infringement of which is made penal, is appointing con
trary to the provisions of that act, as was pointed out by my
colleague, Judge Curtis, and seems to have been assented to
in the argument on the other side; that an appointment
prohibited, or an attempt at an appointment prohibited,
relates to the infraction of the policy and provisions of that
act as applied to the attempt to fill the offices that are de
clared to be in abeyance under certain predicaments. I
believe that to be a sound construction of the law, whether
assented to or not, not to be questioned anywhere.

Very well, then, supposing that the appointment of General
Thomas was not according to law, it is not against any law
that prohibits it in terms, nor against any law that has a
penal clause or a criminal qualification upon the act. What
would it be if attempted without authority of the act of
1795, because that was repealed, and without authority of
the act of 1863, because General Thomas was not an
officer that was eligible for this temporary employment?
It would simply be that the President, in the confusion
among these statutes, had appointed, or attempted to
appoint, an ad interim discharge of the office without
authority of law. You could not indict him very well for
it, and I do not think you can impeach him for it. There
are an abundance of mandatory laws upon the President of
the United States, and it never has been customary to put a
penal clause in them till the civil-tenure act of 1867.

IMPEACHMENT OF PRESIDENT JOHNSON 477

But on this subject, the ad interim appointments, there is
no penal clause and no positive prohibition in any statute.
There would be, then, simply a defect of authority in the
President to make the appointment. What, then, would
be the consequence? General Thomas might not be entitled
to discharge the duties of the office; and if he had undertaken
to give a certificate as Secretary ad interim to a paper that
was to be read in evidence in a Court, and a lawyer had ob
jected that General Thomas was not Secretary ad interim,
and had brought the statutes, the certificate might have
failed. That is all that can be claimed or pretended in that
regard.

But we have insisted, and we do now insist, that the act of
1795 was in force; and that whether the act of 1795 was or
was not in force, is one of those questions of dubious inter
pretation of implied repeal upon which no officer, humble or
high, could be brought into blame for having an opinion
one way or the other. And if you proceed upon these
articles to execute a sentence of removal from office of a
President of the United States, you will proceed upon an in
fliction of the highest possible measure of civil condemnation
upon him personally, and of the highest possible degree of
interference with the constitutionally elected Executive
dependent on suffrage that it is possible for a Court to inflict,
and you will rest it on the basis either that the act of 1795
was repealed, or upon the basis that there was not a doubt
or difficulty or an ignorance upon which a President of the
United States might make an ad interim appointment of
General Thomas for a day, followed by a nomination of a
permanent successor on the succeeding day. Truly, indeed,
we are getting very nice in our measure and criticism of the
absolute obligations and of the absolute acuteness and thor
oughness of executive functions when we seek to apply the
process of impeachment and removal to a question whether
an act of Congress required him to name a head of a depart-

478 SPEECHES OF WILLIAM MAXWELL EVARTS

ment to take the vacant place ad interim or an act of Congress
not repealed permitted him to take a suitable person. You
certainly do not, in the ordinary affairs of life, rig a trip
hammer to crack a walnut.

I think, Mr. Chief Justice, that I shall be able to conclude
what I may have to say to the Senate further certainly
within the compass of an hour; and as the customary hour of
adjournment has been reached, I may, perhaps, be permitted
to say that I feel somewhat sensibly the impression of a
long argument.

FOURTH DAY, MAY 1, 1868.

Mr. Chief Justice and Senators, I cannot but feel that,
notwithstanding the unfailing courtesy and the long-suffering
patience which for myself and my colleagues I have every
reason cheerfully to acknowledge on the part of the Court
in the progress of this trial and in the long argument, you
had at the adjournment yesterday reached somewhat of the
condition of feeling of a very celebrated judge, Lord Ellen-
borough, who, when a very celebrated lawyer, Mr. Fearne,
had conducted an argument upon the interesting subject of
contingent remainders to the ordinary hour of adjournment,
and suggested that he would proceed whenever it should be
his lordship's pleasure to hear him, responded, " The Court
will hear you, sir, to-morrow; but as to pleasure, that has
been long out of the question."

Be that as it may, duties must be done, however arduous,
and certainly your kindness and encouragement relieve from
all unnecessary fatigue in the progress of the cause. We
will look for a moment, under the light which I have sought
to throw upon the subject, a little more particularly at the
two acts, the one of 1795 and the other of 1863, that have
relation to this subject of ad interim appointments. The
act of 1795 provides:

That in case of vacancy in the office of Secretary of State,

IMPEACHMENT OF PRESIDENT JOHNSON 479

Secretary of the Treasury, or of the Secretary of the Department
of War, or of any officer of either of the said departments, whose
appointment is in the head thereof, whereby they cannot perform
the duties of their said respective offices, it shall be lawful for the
President of the United States, in case he shall think it necessary,
to authorize any person or persons, at his discretion, to perform
the duties of the said respective offices until a successor be appointed
or such vacancy be filled: Provided, That no one vacancy shall
be supplied in manner aforesaid for a longer term than six months.

The act of 1863, which was passed under a suggestion of
the President of the United States, not for the extension of
the vacancy act which I have read to the other departments,
but for the extension of the temporary-disability provision
of the act of 1792, does provide as follows:

In case of the death, resignation, absence from the seat of
government, or sickness of the head of any executive department
of the Government or of any officer of either of the said depart
ments whose appointment is not in the head thereof, whereby
they cannot perform the duties of their respective offices, it shall
be lawful for the President of the United States, in case he shall
think it necessary, to authorize —

Not "any person or persons," as is the act of 1795, but —

to authorize the head of any other executive department or other
officer in either of said departments whose appointment is vested
in the President, at his discretion, to perform the duties of the said
respective offices until a successor be appointed, or until such
absence or disability by sickness shall cease : Provided, That no one
vacancy shall be supplied in manner aforesaid for a longer term
than six months.

It will be observed that the eighth section of the act of
1792, to which I will now call attention, being in 1 Statutes
at Large, page 281, provides thus:

That in case of the death, absence from the seat of government,
or sickness of the Secretary of State, Secretary of the Treasury,

480 SPEECHES OF WILLIAM MAXWELL EVARTS

or of the Secretary of the War Department, or of any officer of
either of the said departments, whose appointment is not in the
head thereof, whereby they cannot perform the duties of their
respective offices, it shall be lawful for the President of the United
States, in case he shall think it necessary, to authorize any person
or persons, at his discretion, to perform the duties of the said
respective offices until a successor be appointed, or until such
absence or inability by sickness shall cease.

I am told, or I understand from the argument, that if there
was a vacancy in the office of Secretary of War by the com
petent and effective removal of Mr. Stanton by the exercise
of the President's authority in his paper order, there has
come to be some infraction of law by reason of the Presi
dent's designating General Thomas to the ad interim charge
of the office, because it is said that though under the act of
1795, or under the act of 1792, General Thomas, under the
comprehension of "any person or persons," might be open
to the presidential choice and appointment, yet that he
does not come within the limited and restricted right of
selection for ad interim duties which is imposed by the act
of 1863; and it seems to have been assumed in the argument
that the whole range of selection permitted under that act
was of the heads of departments. But your attention is
drawn to the fact that it permits the President to designate
any person who is either the head of a department, or who
holds any office in any department the appointment of which
is from the President ; and I would like to know why General
Thomas, Adjutant General of the armies of the United
States, holding his position in that Department of War,
is not an officer appointed by the President, and open to his
selection for this temporary duty; and I would like to know
upon what principle of ordinary succession or recourse for
the devolution of the principal duty any officer could stand
better suited to assume for a day or for a week the discharge
of the ad interim trust than the Adjutant General of the

IMPEACHMENT OF PRESIDENT JOHNSON 481

armies of the United States, being the staff officer of the
President, and the person who stands there as the principal
director and immediate agent of the War Department in
the exercise of its ordinary functions?

I cannot but think it is too absurd for me to argue to a
Senate that the removal of a President of the United States
should not depend upon the question whether an Adjutant
General was a proper locum tenens or not, or whether entangled
between the horns of the repealed and unrepealed statutes
the President may have erred in that on which he hung his
rightful authority.

Let me now call your attention to an exercise of this
power of ad interim appointment as held in the adminis
tration of President Lincoln, at page 582 of the record,
before the enactment of the statute of 1863. You will
observe that before the passing of the act of 1863 there was
in force no statutory authority for the appointment of ad
interim discharge of the offices except the acts of 1792 and
1795, which were limited in their terms to the Departments
of War, of State, and of the Treasury. You have, therefore,
directly in this action of President Lincoln the question of
ultra vires, not of an infraction of a prohibitory statute with
a penalty, but of an assumption to make an appointment
without the adequate support of an enabling act of Congress
to cover it, for he proceeded, as will be found at the very
top of that page :

I hereby appoint St. John B. L. Skinner, now acting First
Assistant Postmaster General, to be acting Postmaster General
ad interim, in place of Hon. Montgomery Blair, now temporarily
absent.

ABRAHAM LINCOLN.

Washington, September 22, 1862.

The Department of the Post Office was not covered by
the acts of 1792 or 1795, and the absence of authority in

482 SPEECHES OF WILLIAM MAXWELL EVARTS

respect to it and the other later organized departments
formed the occasion of the President's message which led
to the enactment of 1863. I would like to know whether,
when President Lincoln appointed Mr. Skinner to be Post
master General, without an enabling and supporting act
of Congress to justify him, he deserved to be impeached,
whether that was a crime against the Constitution and his
oath of office, whether it was a duty due to the Constitu
tion that he should be impeached, removed, and a new
election ordered?

I cannot but insist upon always separating from these
crimes alleged in articles the guilt that is outside of articles
and that has not been proved, and that I have not answered
for the respondent nor have been permitted to rebut by
testimony. I take the thing as it is, and I regard each
article as including the whole compass of a crime, the whole
range of imputation, the whole scope of testimony and con
sideration; and unless there be some measure of guilt, some
purpose, or some act of force, of violence, of fraud, of cor
ruption, of injury, of evil, I cannot find in mistaken,
erroneous, careless, or even indifferent excesses of authority
making no impression upon. the fabric of the government,
and giving neither menace nor injury to the public service,
any foundation for this extraordinary proceeding of im
peachment.

Am I right in saying that an article is to contain guilt
enough in itself for a verdict to be pronounced by the hon
orable members of the court "guilty" or "not guilty" on
that article; guilty, not of an act as named, but "guilty of a
high crime and misdemeanor as charged," and as the form of
question adopted in the Peck and Chase trials is distinctly
set down, and not the question used in the Pickering trial
for a particular purpose, which has led the honorable mana
ger [Mr. Wilson], to denounce it as a mockery of justice, a
finding of immaterial facts, leaving no conclusions of law or
judgment to be found by anybody.

IMPEACHMENT OF PRESIDENT JOHNSON 483

There is another -point of limitation on the authority of
the President, as contained both in the act of 1795 and of
1863, which has been made the subject of some comment by
the learned and honorable manager [Mr. Boutwell]: it is
that anyhow and anyway the President has been guilty of a
high crime and misdemeanor, however innocent otherwise,
because the six months' ability accorded to him by the act
of 1795 or 1863 had already expired before he appointed
General Thomas.

The reasoning I do not exactly understand; it is definitely
written down and the words have their ordinary meaning,
I suppose; but how it is that the President is chargeable
with having filled a vacancy thus occurring on the 21st of
February, 1868, if it occurred at all, by an appointment
that he made ad interim on that day which was to run in
the future, what the suggestion that the six months' right
had expired rests upon, I do not understand. It is attempted
to connect it in some way with a preceding suspension of Mr.
Stanton under the civil-tenure act, which certainly did not
create a vacancy in the office, as by law it was prohibited
from doing, nor did it create in any form or manner a vacancy
in the office. No matter, then, whether the suspension was
under the civil-tenure-office act or the act of 1795, the office
was not vacant until the removal; and whatever there may
have been wanting in authority in that preceding action
of the President as not sufficiently supported by his consti
tutional authority to suspend, which he claims, and as
covered necessarily by the act of 1867, as is argued on the
part of the managers, I cannot see that it has anything to
do with cutting short the term during which it was com
petent for the President to make an ad interim appointment.
There remains nothing to be considered except about an
ad interim appointment as occurring during the session of the
Senate. An effort has been made to connect a discrimina
tion between the session and the recess of the Senate in its

484 SPEECHES OF WILLIAM MAXWELL EVARTS

operation upon the right of ad interim or temporary appoint
ments, with the discrimination which the Constitution makes
between the filling of an office during the session and the
limited commission which is permitted during the recess.
But sufficiently, I imagine, for the purposes of conviction in
your minds, it has been shown that temporary appoint
ment does not rest upon the constitutional provisions at all;
that it is not a filling of the office, which remains just as
vacant, as far as the constitutional right and duty remains or
is divided in the different departments of the government,
as if the temporary appointment had not been made.
When the final appointment is made, it dates as from the
time of the vacancy, and to supply the place of the person,
whose vacancy led to the ad interim appointment. That in
the very nature of things there should be no difference in this
capacity between recess and session sufficiently appears, and
the acts of Congress draw no distinction, and the practice
of the government makes not the least difference.

We are able to present to your notice on the pages of
this record, cases enough applicable to the very heads of
departments to make it unnecessary to argue the matter
upon general principles any further. Mr. Nelson, on the
29th of February, 1844, was appointed ad interim in the
State Department during the session of the Senate. This is
to be found on page 556. General Scott was appointed in
the War Department July 23, 1850, page 537, during the
session of the Senate; Moses Kelly, Secretary of the Interior,
January 10, 1861, during the session of the Senate, at page
558; and Joseph Holt, Secretary of War, on the 1st of Jan
uary, 1861, during the session of the Senate, at page 583.
Whether these were to fill vacancies or for temporary disa
bilities makes no difference on the question; nor how the
vacancy arose, whether by removal or resignation or death.

The question of the ad interim faculty of appointment
depends upon no such considerations. They were actual

IMPEACHMENT OF PRESIDENT JOHNSON 485

vacancies filled by ad interim appointment, and related, all
except that of Moses Kelly, to departments that were
covered by the legislation of 1792 and 1795. That of Moses
Kelly to the Department of the Interior was not covered
by that legislation, and would come within the Same prin
ciple with the appointment of Mr. Skinner which I have
noticed on page 582.

I now come with the utmost confidence, as having passed
through all possible allegations of independent infraction of
the statute, to the consideration of the removal of Mr.
Stanton as charged as a high crime and misdemeanor in the
first article, and as to be passed upon by this court under
that imputation and under the President's defence. The
crime as charged must be regarded as the one to be con
sidered, and the crime, as charged and also proved, to be the
only one upon which the judgment has to pass. Your
necessary concession to these obvious suggestions relieves,
very much of any difficulty and of any protracted discussion,
this very simple subject as it will appear to be.

Before taking up the terms of the article and the consid
eration of the facts of the procedure I ask your attention
now, for we shall need to use them as we proceed, to some
general light to be thrown, both upon the construction of
the act by the debates of Congress and upon the relation
of the cabinet as proper witnesses or proper aids in reference
to the intent and purpose of the President within the prac
tice of this government, and with the latter, first.

Most extraordinary (as I think) views have been pre
sented in behalf of the House of Representatives in relation
to cabinet ministers. The personal degradation fastened
upon them by the observation of the honorable manager
[Mr. Boutwell] I have sufficient <y referred to; but I recollect
that there are in your number two other honorable senators,
the honorable senator from Maryland [Mr. Johnson] and
the honorable senator from Iowa [Mr. Harlan] who must

486 SPEECHES OP WILLIAM MAXWELL EVARTS

take their share of the opprobrium which yesterday I divided
among three members of this court alone.

But as a matter of constitutional right, of ability of the
President to receive aid and direction from these heads of
departments, it has been presented as a dangerous innova
tion, of a sort of Star Chamber council, I suppose, intruded
into the Constitution, that was to devour our liberties.
Well, men's minds change rapidly on all these public ques
tions, and perhaps some members of this honorable Senate
may have altered their views on that point from the time of
the date of the paper I hold in my hand, to which I wish to
ask your attention. It is a representation that was made to
Mr. President Lincoln by a very considerable number of
senators as to the propriety of his having a cabinet that
could aid him in the discharge of his arduous executive
duties:

The theory of our government, the early and uniform practical
construction thereof, is that the President should be aided by a cabi
net council agreeing with him in political principle and general
policy, and that all important measures and appointments should
be the result of their combined wisdom and deliberation. The
most obvious and necessary condition of things, without which no
administration can succeed, we and the public believe does not
exist; and, therefore, such selections and changes in its members
should be made as will secure to the country unity of purpose and
action in all material and essential respects. More especially in the
present crisis of public affairs the cabinet should be exclusively
composed of statesmen who are cordial, resolute, unwavering sup
porters of the principles and purposes above mentioned.

There are appended to this paper as it comes to me the
signatures of twenty-five senators. Whether it was so
signed or not I am not advised; but that it was the action of
those senators, I believe, is not doubted, and among them
there are some fifteen or more that are members of this pres
ent court. The paper has no date, but the occurrence was, I

IMPEACHMENT OF PRESIDENT JOHNSON 487

think, some time in the year 1862 or 1863, a transaction and
a juncture which is familiar to the recollection of senators who
took part in it, and doubtless of all the public men whom
I have the honor now to address.

These honorable managers in behalf of the House of Rep
resentatives do not hold to these ideas at all, and I must
think that the course of this court in its administration of
the laws of evidence as not enabling the President to pro
duce the supporting aid of his cabinet, which you said he
ought to have in all his measures and views, has either pro
ceeded upon the ground that his action, in your judgment,
did not need any explanation or support, or else you had not
sufficiently attended to these valuable and useful views about
a cabinet which were presented to the notice of President
Lincoln. Public rumor has said, the truth of which I do not
vouch, as I have no knowledge, but there are many who
well know that the President rather turned the edge of this
representation, by a suggestion whether in fact the meaning
of the honorable senators was not that his cabinet should
agree with them rather than with him, Mr. Lincoln. How
ever that may be, the doctrines are good and are according
to the custom of the country and the law of our government.

We may then find it quite unnecessary to refute by any
very serious and prolonged argument the imputations and
invectives against cabinet agreement with the President
which have been urged upon your attention.

And now, as bearing both on the question of a fair right
to doubt and deliberate on the part of the President on the
constitutionality of this law, the civil-tenure act, and on the
construction of its first section as embracing or not em
bracing Mr. Stanton, I may be permitted to attract your
attention to some points in the debates in the Congress which
have not yet been alluded to, as well as to repeat some very
brief quotations which have once been presented to your
attention. I will not recall the history of the action of the

488 SPEECHES OF WILLIAM MAXWELL EVARTS

House on the general frame and purpose of the bill, nor the
persistence with which the Senate, as the adviser of the
President in the matters of appointment as well as a member
of the legislative branch of the government, pressed the
exclusion of cabinet ministers from the purview of the bill
altogether; but when it was found that the House was per
sistent also in its view, the Senate concurred with it on con
ference in a measure of accommodation concerning this
special matter of the cabinet which is now to be found in the
text of the first section of the act. In the debate on the
tenure-of-office bill the honorable senator from Oregon [Mr.
Williams], who seems to have had, with the honorable
senator from Vermont [Mr. Edmunds], some particular con
duct of the debate according to a practice apparently quite
prevalent now in our legislative halls, said this :

I do not regard the exception as of any great practical conse
quence —

That is, the exception of cabinet ministers —

because, I suppose, if the President and any head of a department
should disagree, so as to make their relations unpleasant, and the
President should signify a desire that that head of department
should retire from the cabinet, that would follow without any
positive act of removal on the part of the President. (Congres
sional Globe, 39th Congress, second session, p. 383.)

Mr. Sherman, bearing on the same point, said:

Any gentleman fit to be a cabinet minister, who receives an inti
mation from his chief that his longer continuance in that office is
unpleasant to him, would necessarily resign. If he did not resign,
it would show he was unfit to be there. I cannot imagine a case
where a cabinet officer would hold on to his place in defiance and
against the wishes of his chief. ( Ibid., p. 1046.)

But, nevertheless, this practical lack of importance in the
measures which induced the Senate to yield their opinions

IMPEACHMENT OF PRESIDENT JOHNSON 489

of regularity of governmental proceedings and permit a
modification of the bill, led to the enactment as it now
appears; and the question is how this matter was under
stood, not by one man, not by one speaker, but, so far as
the record goes, by the whole Senate, on the question of
construction of the act as inclusive of Mr. Stanton in his
personal incumbency of office or not. When the conference
committee reported the section as it now reads, as the result
of a compromise between the Senate in its firm views and
the House in its firm purposes, the honorable senator from
Michigan [Mr. Howard] asked that the proviso might be
explained. Now, you are at the very point of finding out
what it means when a senator gets so far as to feel a doubt,
and wants to know and asks those who have charge of the
matter and are fully competent to advise him. The honor
able senator, Mr. Williams, states:

Their terms of office shall expire when the term of office of the
President by whom they were appointed expires.

I have, from the beginning of this controversy, regarded this as
quite an immaterial matter, for I have no doubt that any cabinet
minister who has a particle of self-respect — and we can hardly
suppose that any man would occupy so responsible an office with
out having that feeling — would decline to remain in the cabinet
after the President had signified to him that his presence was no
longer needed. As a matter of course, the effect of this provision
will amount to very little, one way or the other; for I presume
that whenever the President sees proper to rid himself of an
offensive or disagreeable cabinet minister, he will only have to
signify that desire, and the minister will retire, and a new appoint
ment be made. (Ibid., p. 1515.)

Mr. Sherman, one of the committee of conference, states:

I agreed to the report of the conference committee with a great
deal of reluctance.

I think that no gentleman, no man of any sense of honor, would
hold a position as a cabinet officer after his chief desired his re-

490 SPEECHES OF WILLIAM MAXWELL EVARTS

moval, and, therefore, the slightest intimation on the part of the
President would always secure the resignation of a cabinet officer.
For this reason I do not wish to jeopard this bill by an unimportant
and collateral question.

He proceeds further:

The proposition now submitted by the conference conmittee —

And this was in answer to the demand of the Senate to
know from the committee what they had done, and what
the operation of it was to be. The answer of Mr. Sherman is :

The proposition now submitted by the conference committee
is that a cabinet minister shall hold his office during the life or term
of the President who appointed him. // the President dies the
cabinet goes out; if the President is removed for cause by impeach
ment the cabinet goes out; at the expiration of the term of the Presi
dent's office the cabinet goes out.

'This is found at page 1515 of the Globe of that year. Now,
how in the face of this can we with patience listen to long
arguments to show that, in regard to cabinet ministers sit
uated as Mr. Stanton is, the whole object of limitation of
the proviso and the bill to which the Senate was ready to
assent becomes nugatory and unprotective of the President's
necessary right, by a constructive enforcement against him
of a continuing cabinet officer whom he never appointed at
all? And how shall we tolerate this argument that the term
of a President lasts after he is dead, and that the term in
which Mr. Stanton was appointed by Mr. Lincoln lasts
through the succeeding term to which Mr. Lincoln was sub
sequently elected? But that is not the point. You are asked
to remove a President from office under the stigma of im
peachment for crime, to strike down the only elected head
of the government that the actual circumstances permit the
Constitution to have recourse to, and to assume to your
selves the sequestration and administration of that office ad
interim upon the guilt of a President in thinking that Mr.

IMPEACHMENT OF PRESIDENT JOHNSON 491

Sherman, in behalf of the conference committee, was right
in explaining to the Senate what the conference committee
had done. Nobody contradicted him; nobody wanted any
further explanation; nobody doubted that there was no vice
or folly in this act that, in undertaking to recognize a limited
right of the President not to have ministers retained in office
that he had not had some voice in appointing, gave it the
shape, and upon these reasons, that it bears to-day.

And I would like to know who it is, in this honorable Senate,
that will bear the issue of the scrutiny of the revising people
of the United States, on a removal from office of the President
for his removal of an officer, that the Senate has thus declared
not to be within the protection of the civil-tenure act. Agree
that, judicially, afterward it may be determined anywhere
that he is, who will pronounce a judgment that it is wrong
to doubt? Ego assentior eo, the President might well say, in
deference to the opinion of Mr. Sherman, even if that judg
ment of some inferior court, to say nothing even of the high
est, the Supreme Court, or the highest special jurisdiction,
this court, should determine otherwise.

But the matter was brought up a little more distinctly.
Mr. Doolittle having said that this proviso would not keep
in the Secretary of War and that that had been asserted in
debate as its object, Mr. Sherman, still having charge of the
matter, as representing the conference committee, proceeds :

That the Senate had no such purpose was shown by its vote
twice to make this exception. That this provision does not apply
to the present case is shown by the fact that its language is so
framed as not to apply to the present President. The senator
shows that himself, and argues truly that it would not prevent
the present President from removing the Secretary of War, the Sec
retary of the Navy, and the Secretary of State. And if I supposed
that either of these gentlemen was so wanting in manhood, in
honor, as to hold his place after the politest intimation by the
President of the United States that his services were no longer

492 SPEECHES OF WILLIAM MAXWELL EVARTS

needed, I, certainly, as a senator, would consent to his removal,
and so would we all.

That is at page 1516 of the Globe; and yet later, in con
tinuation of the explanation, the same honorable senator
says thus definitely:

We provide that a cabinet minister shall hold his office, not for a
fixed term, not until the Senate shall consent to his removal, but
as long as the power that appoints him holds office. If the principal
office is vacated, the cabinet minister goes out. (Page 1517.)

And if the principal office is not vacated by death under
our government, we certainly belong to the race of the im
mortals. Now, Senators, I press upon your consideration the
inevitable, the inestimable weight of this senatorial discus
sion and conclusion. I do not press it upon particular sena
tors who took part in it, es'pecially. I press it upon the con
curring, unresisting, assenting, agreeing, confirming, corro
borating silence of the whole Senate. And I would ask if a
President of the United States and his cabinet, having
before them the question upon their own solution of the
ambiguities or difficulties, if there be any (and I think there
are not), in this section, might not well repose upon the sense
of the Senate that they would not have agreed to the bill if
it had any such efficacy as is now pretended for it, and the
explanation of the committee, and the acceptance of it by
the Senate that it had no such possible construction or force.
Nevertheless if the President must be convicted of a high
crime and misdemeanor for this concurrence with your united
judgments, and that sentence proceeds also from your united
judgments, we shall have great difficulty in knowing which
of your united judgments is entitled to the most regard.

In the House this matter was considered in the statements
of Mr. Schenck, who with Mr. Williams and Mr. Wilson,
now among the managers, constituted the conference com
mittee, Mr. Williams having been, as is well known, one of

IMPEACHMENT OF PRESIDENT JOHNSON 493

the principal promoters of the original measure. Mr.
Schenck states upon a similar inquiry made in the House as
to what they had all done on conference :

A compromise was made by which a further amendment is
added to this portion of the bill, so that the term of office of the
heads of departments shall expire with the term of the President
who appointed them, allowing those heads of departments one
month longer, in which in case of death or otherwise, other heads
of departments can be named. This is the whole effect of the
proposition reported by the committee of conference.

And again:

Their terms of office are limited, as they are not now limited, by
law, so that they expire with the term of service of the President
who appoints them and one month after. (Congressional Globe,
second session thirty-ninth Congress, page 1340.)

Not the elected term, but "the term of service"; and if
removal by impeachment terminates the term of service, as
it certainly does, or death by a higher power equally termi
nates it, upon Mr. Schenck's view, in which apparently
Messrs. Managers Wilson and Williams concurred, the
House is presented as coming to the same conclusion with
the Senate. Nevertheless, the whole grave matter left of
crime is an impeachment by the House for making the
removal, and a condemnation sought from the Senate upon
the same ground; and we are brought, therefore, to a con
sideration of the meaning of the act, of its constitutionality,
of the right of the President to put its constitutionality in
issue by proper and peaceful proceedings, or of his right to
doubt and differ on the construction, and honestly, peace
fully to proceed, as he might feel himself best advised, to
learn what it truly meant.

And now I may here at once dispose of what I may have
to say definitely in answer to some proposition insisted upon
by the honorable manager [Mr. Boutwell]. He has under-

494 SPEECHES OF WILLIAM MAXWELL EVARTS

taken to disclose to you his views of the result of the debate
of 1789, and of the doctrines of the government as there
developed, and has not hesitated to claim that the limitation
of those doctrines was confined to appointments during the
recess of the Senate. Nothing could be less supported by
the debate or by the practice of the government. In the
whole of that debate, from beginning to end, there is not
found any suggestion of the distinction that the honorable
manager has not hesitated to lay down in print for your
guidance as its result. The whole question was otherwise,
whether or no the power of removal resided in the President
absolutely. If it did, why should he not remove at one time
as well as at another? The power of appointment was
restricted in the Constitution by a distinction between recess
and session. If, on the other hand, the power of removal was
administrable by Congress, it needed to provide for its de
posit with the President, if that was the idea, as well in time
of session as in time of recess, because the whole question and
action of the separate exercise of the power of removal from
the power of appointment would arise when the emergency
of removal dictated instant action. We understand that
when the removal is political, or on the plan of rotation in
office, as we call it, the whole motive of the removal is the
new appointment.

The new appointment is the first thought and wish. There
is no desire to get rid of the old officer except for the purpose
of getting in the new. And therefore the general practice of
the government in its mass of action, since the time of rota
tion in office began, is of this political removal, which is not
getting rid of the old officer from any objection to him, but
because his place is wanted for the new. Hence all this
parade of the action of the government showing that it has
been the habit in those political appointments to send in the
name of the new man, and by that action put him in the
place of the old, serves no purpose of argument, and carries

IMPEACHMENT OF PRESIDENT JOHNSON 495

not a penny's weight on the question. The form of the
notice as in the last one on your table, the appointment of
General Schofield, and so from the beginning of the office, is
"in place of A B," not "to be removed by the Senate," but
"of A B, removed," meaning this: "I, as President, have no
power to appoint unless there is a vacancy; I tell you that I
have made a vacancy or present to you a case of vacancy
created by my will, by removal, not death or resignation; and
I name to you C D to be appointed in the place of A B,
removed." That is the meaning of that action of the gov
ernment.

You will observe that in finding cases in the practice of the
government where there has been a separate act of removal
during session, or during recess either, we are under two
necessary restrictions as to their abundance or frequency,
which the nature of the circumstances imposes. The first is
that in regard to cabinet officers you can hardly suppose an
instant in which a removal can be possible, because in the
language of honorable senators, you can hardly conceive of
the possibility of a cabinet officer's not resigning when it is
intimated to him that his place is wanted; and, therefore,
all this tirade of exultation that we found no case of removal
of a cabinet officer save that of Timothy Pickering rests upon
Senator Sherman's proposition and Senator Williams's prop
osition that you cannot conceive of the possibility of there
being a cabinet minister that would need to be removed, and
the practice of our government has shown that these honor
able senators were right in their proposition, and that there
never have been, from the foundation of the government to
the present time, but two cases where there were cabinet
ministers that on the slightest intimation of their chief did
not resign. Now, do not urge on us the paucity of the cases
of removal of heads of departments as not helping the prac
tice of the government when that paucity rests upon retire
ment whenever a President desires it.

496 SPEECHES OF WILLIAM MAXWELL EVARTS

Mr. Pickering, having nothing but wild land for his sup
port and a family to sustain, flatly told Mr. Adams that he
would not resign, because it would not be convenient for him
to make any other arrangements for a living until the end of
his term; and the President, without that consideration of
domestic reasons which perhaps Mr. Pickering hoped would
obtain with him, told him that he removed him, and he did;
and he went, I believe, to his wild land and was imprisoned
there by the squatters, and came into very great disaster
from this removal. Mr. Stanton, under the motives of public
duty, it is said, takes the position that for public reasons he
will not resign. These are the only two cases in our govern
ment in which the question has arisen, and in one of them,
before the passage of the civil-tenure act, the Secretary was
instantly removed by the power of the President, and in the
other it was attempted after long sufferance.

We can find in the history of the government — for we
should hardly expect to escape the occurrence when we have
so many officers — instances enough of removal by Executive
authority during the session of the Senate of subordinate
officers of the government who derived their appointment
from the President, by the advice and consent of the Senate,
and every one of those cases is pertinent and an instance.
You will observe in regard to them, as I said before, how
peculiar must be the situation of the officer and office and
of the President toward them when this separate, independ
ent, and condemnatory removal needs to take place. In the
first place, there must be some fault in the conduct of the
officer, not necessarily crime, and not necessarily neglect of
office, but some fault in manner at least, as of that collector
down in Alabama, who, when he was asked by the Secretary
of the department how far the Tombigbee ran up, answered
that it did not run up at all; and he was removed
from office for his joke on the subject of the Tombigbee
river not running up, but, as other rivers do, running down.

IMPEACHMENT OF PRESIDENT JOHNSON 497

It does not do to have these asperities on the part of inferior
officers. So, too, when the fault arises of peculation, of
deficiency of funds, or what not, the sureties know of it,
come forward and say to the officer, "You must resign; we
cannot be sureties any longer here"; and in nine cases out
of ten, where an occurrence would lead to removal, it is met
by the resignation of the inferior officer. Therefore the prac
tice of the government can expect to suggest only the pecu
liar cases where promptitude and necessity of the rough
method of removal are alike demanded from the Executive.
I will ask the attention of this honorable court to the cases
we have presented in our proofs, with the page and instance
of each removal during the session of the Senate. That is
the condition of this list — the whole of it:

Year Page

Timothy Pickering 1800 357

Thomas Eastin, navy agent at Pensacola 1840 569

Isaac Henderson, navy agent 1864 571

James S. Chambers, navy agent 1864 572

Amos Binney 1826 573

John Thomas 1841 573

Samuel F. Marks 1860 581

Isaac V. Fowler 1860 581

Mitchell Steever 1861 581

I think the honorable senators must give their assent to
the propositions I have made that in regard to cabinet offi
cers it is almost impossible to expect removal as a separate
act; that political removals necessarily have for their first
step the selection and presentation of the new man for whose
enjoyment of office the removal is to take place; that in
regard to criminality and necessity requiring instant re
moval of subordinate officers, resignation will then be re
quired by their sureties or by their sense of shame or their
disposition to give the easiest issue to the difficulty in which
they are placed; and when with the circumstances of the

34

498 SPEECHES OF WILLIAM MAXWELL EVARTS

matter reducing the dimensions of the possibility and the
frequency within these narrow limits I present to you on
behalf of the respondent these evidences of the action of this
government during the session of the Senate, I think you
must be satisfied with the proposition assented to by every
statesman — I think assented to by every debater on the
passage of this civil-tenure act: that the doctrine and the
action and the practice of the government had been that the
President removed in session or in recess, though some dis
crimination of that kind was attempted; but the facts, the
arguments, the reasons all show that removal, if a right and
if a power, is not discriminated between session and recess.
Look at it in regard to this point: the Senate is in session,
and a public officer is carrying on his frauds at San Fran
cisco or at New York, or wheresoever else, perhaps in Hong
Kong or Liverpool, and it comes to the knowledge of the
Executive; the session of the Senate goes on; the fact of his
knowledge does not put him in possession of a good man to
succeed him either in his own approval or in the assent of
the new nominee; and if it is necessary under our Constitu
tion that the consul at Hong Kong or at Liverpool, or the
sub-treasurer at New York, or the master of the mint at
San Francisco, should go on with his frauds until you and
the President can find a man and send him there and get his
assent and his qualifications, very well. It is not a kind of
legislation that is adapted to the circumstances of the case
is all that I shall venture to suggest. Whatever your positive
legislation has done or attempted to do, no construction and
no practice of the government while the executive depart
ment was untrammelled by this positive restriction has ever
shown a discrimination between session and recess. Of
course, the difference between session and recess is shown in
the political appointments where, the object being the new
appointment, the commission goes out in the recess; where,
during the session, the object being the new appointment, it
must proceed through the concurrence of the Senate.

IMPEACHMENT OF PRESIDENT JOHNSON 499

And now that I come to consider the actual merits of the
proceeding of the President and give a precise construction
to the first section of the bill, I need to ask your attention to
a remarkable concession made by Mr. Manager Butler in his
opening, as we regarded it, that if the President, having this
wish of removal, had accomplished it in a method the pre
cise terms of which the honorable manager was so good as
to furnish, then there would have been no occasion to have
impeache.d him. It is not then, after all, ihefortiter in re on
the part of the President that is complained of, but the
absence of the suaviter in modo-9 and you, as a court, upon
the honorable manager's own argument, are reduced to the
necessity of removing the President of the United States not
for the act, but for the form and style in which it was done,
just as the collector at Mobile was removed for saying that
the river Tombigbee did not run up at all.

But more definitely the honorable manager [Mr. Bout-
well] has laid down two firm and strong propositions — I will
ask your attention to them — bearing on the very merits of
this case. We argue that if this act be unconstitutional we
had a right to obey the Constitution, at least in the intent
and purpose of a peaceful submission of the matter to a
court, and that our judgment on the matter, if deliberate,
honest, and supported by diligent application to the proper
sources of guidance, is entitled to support us against an in-
crimination. To meet that, and to protect the case against
the injury from the exclusion of evidence that tends to that
effect, the honorable manager [Mr. Boutwell] does not hesi
tate to say that the question of the constitutionality or
unconstitutionality of the law does not make the least differ
ence in the world where the point is that an unconstitutional
law has been violated, and for a President to violate an
unconstitutional law is worthy of removal from office. Now,
mark the desperate result to which the reasoning of the
honorable managers, under the pressure of our argument,

500 SPEECHES OF WILLIAM MAXWELL EVARTS

has reduced them. That is their proposition, and the reason
for that proposition is given in terms. If that is not so; if
the question of constitutionality or unconstitutionality in
fact is permitted to come into your considerations of crime,
then you would be punishing the President for an error of
judgment, or releasing him or condemning him according as
he happened to have decided right or wrong, and that the
honorable manager tells us is contrary to the first principles
of justice. Let us, before we get through with this matter,
have some definite meeting of minds on this subject between
these honorable managers and ourselves.

At page 814, in the argument of the honorable manager
[Mr. Boutwell], we are told that "the crime of the President
is not, either in fact or as set forth in the articles of impeach
ment, that he has violated a constitutional law; but his
crime is that he has violated a law, and in his defence no
inquiry can be made whether the law is constitutional," and
that the Senate in determining innocence or guilt is to render
no judgment as to the constitutionality of the act. I quote
the results of his propositions, not the full language. At
page 815, this is the idea:

If the President may inquire whether the laws are constitutional,
and execute those only which he believes to be so, then the govern-
ernment is the government of one man. If the Senate may in
quire and decide whether the law is in fact constitutional, and
convict the President if he has violated an act believed to be con
stitutional, and acquit him if the Senate think the law unconsti
tutional, then the President is, in fact, tried for his judgment, to
be acquitted if, in the opinion of the Senate, it was correct judg
ment, and convicted if, in the opinion of the Senate, his judgment
was erroneous. This doctrine offends every principle of justice.

That doctrine does with us offend every principle of
justice, that a President of the United States should be con
victed when honestly, with proper advice, peacefully and
deliberately, he has sought to raise a question between the

IMPEACHMENT OF PRESIDENT JOHNSON 501

Constitution and the law; and the honorable manager can
escape from our argument on that point in no other mode
than by the desperate recourse of saying that constitutional
laws and unconstitutional laws are all alike in this country
of a written Constitution, and that anybody who violates an
unconstitutional law meets with some kind of punishment
or other. This confusion of ideas as to a law being valid for
any purpose that is unconstitutional I have already suffi
ciently exposed in a general argument. At page 815 he
says:

It is not the right of any senator in this trial to be governed by
any opinion he may entertain of the constitutionality of the law in
question.

You may all of you think the law is unconstitutional, and
yet you have got to remove the President! "It has not been
annulled by the Supreme Court." And you may simply
inquire whether he has violated the law.

That is pretty hard on us that we cannot even go to the
Supreme Court to find out whether it is unconstitutional,
and we cannot regard it on our own oath of office as uncon
stitutional and proceed to maintain the obligation to sustain
the Constitution, and you cannot look into the matter at all,
but the unconstitutional law must be upheld!

Nor can the President prove or plead the motive by which he
professes to have been governed in his violation of the laws of the
country.

What is the reason for that? He has taken an oath to
preserve the Constitution, and therefore he cannot say that
he acted under the Constitution and not under the law. His
oath strikes him so that he cannot maintain the Constitu
tion, and the Constitution cannot protect him.

A man who breaks an unconstitutional law on the ground
that it is unconstitutional and that he has a right to break
it, is "a defiant usurper."

502 SPEECHES OF WILLIAM MAXWELL EVARTS

Those are the propositions, and I think the honorable
manager is logical; but the difficulty is, that his logic drives
him to an absurdity which, instead of rejecting, he adopts —
a fault in reasoning which certainly we should not expect.

On the question of construction of the law, what are the
views of the honorable managers as to the point of guilt or
innocence? We have claimed that if the President in good
faith construed this law as not including Mr. Stanton under
its protection, and he went on upon that opinion, he cannot
be found guilty. The honorable manager [Mr. Boutwell], at
page 839, takes up this question and disposes of it in this
very peculiar manner:

If a law —

I ask your attention to this:

If a law passed by Congress be equivocal or ambiguous in its
terms, the Executive, being called upon to administer it, may
apply his own best judgment to the difficulties before him. or he
may seek counsel of his advisers or other persons; and, acting
thereupon without evil intent or purpose, he would be fully justi
fied—

We never contended for anything stronger than that —

he would be fully justified, and upon no principle of right could
he be held to answer as for a misdemeanor in office.

Logic is a good thing, an excellent thing; it operates upon
the mind without altogether yielding to the bias of feeling;
and as we press an argument, however narrow it may be,
if it be logical, the honorable managers seem obliged to bend
to it, and in both cases have thrown away their accusation.
Tell me, what more do we need than this, an ambiguous and
equivocal law which the President was called on to act
under, and might, as we tried to prove, "seek counsel from
his official advisers or other proper persons, and acting there
upon without evil intent or purpose he would be fully justi-

IMPEACHMENT OF PRESIDENT JOHNSON 503

fied, and upon no principle of right could he be held to
answer as for a misdemeanor in office?" And what is the
answer which the honorable managers make to this logical
proposition? Why, that this act is not of that sort; it is as
plain as the nose on a man's face, and it was nothing but
violent resistance of light that led anybody outside of this
Senate to doubt what it meant! The honorable manager
who follows me [Mr. Bingham] will have an opportunity to
correct me in my statements of their propositions, and to
furnish an adequate answer, I doubt not, to the views I have
had the honor now to present.

And now take the act itself, which is found at page 430 of
the edition of the statutes I have before me. It is provided —

That every person holding any civil office, to which he has been
appointed by and with the advice and consent of the Senate, and
every person who shall hereafter be appointed to any such office,
and shall become duly qualified to act therein, is and shall be en
titled to hold such office until a successor shall have been in like
manner appointed and duly qualified, except as herein otherwise
provided.

Then the "provision otherwise" is:

Provided, That the Secretaries of State, of the Treasury, of War,
of the Navy, and of the Interior, the Postmaster General, and the
Attorney General, shall hold their offices respectively for and dur
ing the term of the President by whom they may have been ap
pointed, and for one month thereafter, subject to removal by and
with the advice and consent of the Senate.

That is the operative section of this act of erecting and
limiting the new arrangement of offices. The section of
incrimination, so far as it relates to removal, I will read,
omitting all that relates to any other matter; the sixth
section:

That every removal . . . contrary to the provisions of
this act ... shall be deemed, and is hereby declared to be, a
high misdemeanor —

504 SPEECHES OF WILLIAM MAXWELL EVARTS

I alter the plural to singular —

And upon trial and conviction thereof, every person guilty
thereof shall be punished by a fine not exceeding $10,000, or by
imprisonment not exceeding five years, or both said punishments,
in the discretion of the court.

You will observe that this act does not affix a penalty to
anything but a "removal," an accomplished removal. Acts
of a penal nature are to be construed strictly ; and yet when
ever we ask that necessary protection of the liberty and of
the property and of the life of a citizen of the United States
under a penal statute, we are told that we are doing some
thing extraordinary for a lawyer in behalf of his client. All
principles, it seems, are to be changed when you have a
President for a defendant; all the law retires, and will and
object and politics assume their complete predominance and
sway, and everything of law, of evidence, and of justice is
narrow and not enlarged. That may be. All I can say is
that if the President had been indicted under this act, or
should hereafter be indicted under this act, then the law of
the land would apply to his case as usually administered, and
if he has not removed Mr. Stanton he cannot be punished for
having done it. You might have punished an attempt to
remove. See what you have done in regard to appointments :

Every appointment or employment made, had, or exercised
contrary to the provisions of this act, and the making, signing,
sealing, countersigning, or issuing of any commission or letter of
authority for, or in respect to any such appointment or employ
ment, shall be deemed, and is hereby declared to be, a high mis
demeanor.

There you have made not only an appointment, but an
attempt on movement of the pen toward an appointment a
crime, and you will punish it, I suppose, some day or other.
But removal stands on act and fact. Now, what does the
article charge in this behalf? for I believe as yet it has not

IMPEACHMENT OF PRESIDENT JOHNSON 505

been claimed that it is too narrow to insist that the crime as
charged in the article shall be the one you are to try. "Re
moval" is not charged in the articles anywhere; the allega
tion is that Andrew Johnson did unlawfully and in violation
of the Constitution "issue an order in writing for the removal
of Edwin M. Stanton, with intent to violate" the civil-tenure
act, and "with intent to remove him, the Senate being in
session." If you had had a section of this statute that said
"any removal, or the signing of any letter, or order, or paper,
or mandate of removal, shall be a crime," then you would
have had an indictment and a crime before you; but you
have neither crime nor indictment, as appears from this first
article. And yet it may be said that in so small a matter as
the question of the removal of a President it does not do to
insist upon the usual rules of construction of a criminal law.
I understand the proposition to be this : that here is a crimi
nal law which has been violated; that by the law of the land
it has been violated, so that indictment could inculpate, ver
dict would find guilt, and sentence would follow at law; and
that thereupon, upon that predicament of guiltiness, the
President of the United States is exposed to this peculiar
process of impeachment; and if I show that your law does
not make punishable an attempt to remove, or a letter of
removal, and that your article does not charge a removal,
and that is good at law, then it is good against impeachment,
or else you must come back to the proposition that you do
not need a legal crime.

So much for the law. What is the true attitude of Mr.
Stanton and of the President of the United States towards
this office and this officer at the time of the alleged infraction
of the law? Mr. Stanton held a perfectly good title to that
office by the commission of a President of the United States
to hold it, according to the terms of the commission, "during
the pleasure of the President for the time being." That is
the language of the commission. He held a good title to the

506 SPEECHES OF WILLIAM MAXWELL EVARTS

office. A quo warranto moved against him while he held that
commission unrevoked, unannulled, and undetermined would
have been answered by the production of the commission.
"I hold this office during the pleasure of the President of the
United States for the time being, and I have not been re
moved by the President of the United States." That was
the only title he held up to the passage of the civil-tenure
act. By the passage of the civil-tenure act it is said that a
statutory title was vested in him not proceeding from the
executive power of the United States at all, not commis
sioned by the Executive of the United States at all, not to
be found, ascertained, or delegated by the Executive of the
United States at all, but a statutory title superadded to his
title from the executive authority which he held during
pleasure, which gave him a durable office determinable only
one month after the expiration of some term of years or
other.

We are not now discussing the question whether he is
within it or not. That being so, the first question to which I
ask your attention is this, that the act is wholly unconsti
tutional and inoperative in conferring upon Mr. Stanton or
anybody else a durable office to which he has never been
appointed. Appointment to all office proceeds from the
President of the United States, or such heads of department
or such courts of law as your legislation may repose it in.
You cannot administer appointment to office yourselves, for
what the Constitution requires the President to have con
trol of you cannot confer anywhere else. The appointment
of Secretary of War is one which cannot be taken from the
President and conferred upon the courts of law or the heads
of department. Whatever may be the action of Congress
limiting or contriving the office, as you please, the office itself
is conferable only by the action of the Executive. And when
Mr. Stanton holds or anybody else holds an office during
pleasure, which he has received by commission and authority

IMPEACHMENT OF PRESIDENT JOHNSON 507

of the President of the United States, a sufficient title to,
you can no more confer upon him by your authority and
appointment a title durable and in invitum as against the
President of the United States, you can no more confer it
upon him because he happens to be holding an office during
pleasure than you could if he was out of office altogether.
I challenge contradiction from the lawyers who oppose us
and from the judgment of honorable and intelligent lawyers
here. Where are you going to carry this doctrine of legisla
tive appointment to office if you can carry it to find a man
whom the President has never asked to hold an office except
from day to day and can enact him into a durable office for
life? You may determine tenures if you please; I am not
now discussing that; you may determine tenures for life; but
you cannot enact people into tenures for life. The President
must appoint; and his discretion and his judgment in ap
pointing to an office for life are very different from his dis
cretion and his appointing to an office during his pleasure,
which he can change at will. Now you will sweep all the
offices of the country not only into the Senate but into Con
gress if you adopt this principle of enacting people into
office; and if, upon the peg that there is an office at sufferance
or at will, you can convert it in favor of the holder by an act
of Congress into an estate for life or for years, you will ap
point to office; and of that there can be no doubt.

The next question, and the only question, of constitu
tionality or construction (for the general question of the
constitutional power to restrict appointments I shall not
further trouble the Senate with) is, whether the Secretary
of War is within the first section. The office of the Secretary
of War is within the first section undoubtedly. The ques
tion, therefore, is whether the provisions concerning the
office of Secretary of War applicable to that office are in their
terms, giving them full force and effect, such as to hold Mr.
Stanton in that office against the will of the President by

508 SPEECHES OP WILLIAM MAXWELL EVAETS

the statutory term that is applicable to that office, and is or
is not applied to him.

The argument that if Mr. Stanton is not within the pro
viso then he is within the body of the section stumbles over
this transparent and very obvious, as we suppose, fallacy;
the question of the law is whether the office of Secretary of
War is within the proviso or not. You have not made a law
about Mr. Stanton by name. The question, then, whether
he is within one or the other terms of the alternative, is
whether the office of Secretary of War is within the section
or within the proviso; and will anybody doubt about that?
It is on the same footing with the other secretaryships; it is
on the same footing as an office with every other department.
The question whether the office of Mr. Stanton or the office
of Mr. Browning is within one or the other alternative of the
section is not a question of construction of law, but a ques
tion of whether the facts of the tenure and holding of the
actual incumbency of the one or the other bring him within
the proviso. If he is not brought within the proviso, his
office being there, the fact that he is not in does not carry
his office back into the first part, because his office would be
back there for the future as well as for the past and for the
present.

It is a statute made for permanent endurance, and the
office of Secretary of War, now and forever, as long as the
statute remains upon the book, is disposed of one way or the
other within the first part or within the proviso. And yet
we have been entertained, in public discussions as well as in
arguments here, with what is supposed to be a sort of trium
phant refutation, that Mr. Stanton's office in his actual
incumbency is not protected by the proviso; that then his
office is carried back under the body of the section. There
is no doubt about the office being under the proviso. It
says so:

IMPEACHMENT OF PRESIDENT JOHNSON 509

Provided, That the Secretaries of State, of the Treasury, of War,
of the Navy, and of the Interior, the Postmaster General, and the
Attorney General, shall hold their offices respectively, etc.

That does not mean the men; it means the offices shall
have that tenure. Having got along so far that this office of
Secretary of War, like the office of Secretary of the Interior,
must always remain under that proviso, and is never gov
ernable or to be governed by the body of the section, we have
but one other consideration, and that is whether the proviso,
which is the only part of the section that can operate upon
the office of Secretary of War, so operates upon that office
as to cover Mr. Stanton in a durable tenure for the future;
and that turns upon the question whether the durability of
tenure provided as a general rule for the office is in the terms
of its limitation such as to carry him forward, or whether its
bound has already been reached and he is out of it. That
is the question of fact in the construction of the proviso. He
either stays in the proviso or he drops out of the proviso; and
if he personally drops out of the proviso in his present incum
bency he cannot get back into the operative clause, because
he cannot get back there without carrying his office there,
and his office never can get back.

Is it not true that this proviso provides a different tenure
for the cabinet officers from what the first and operative part
of the section provides? If this office or this officer goes back,
this very incumbent goes back; he gets a tenure that will last
forever, that is, until the Senate consents to his removal.
How absurd a result that is, to give to this poor President
control of his cabinet, that those he appointed himself, if he
should happen to be re-elected, he could get rid of in a month,
and those that Mr. Lincoln appointed for him from the
beginning, and before he had any choice in it, he must hold
on to forever, till you consent that they shall go out; that
those in regard to whom he had the choice of nomination he
may by the expiration of the statutory term be freed from,

510 SPEECHES OF WILLIAM MAXWELL EVARTS

but those that he had nothing to do with the appointment of
shall last forever, till you consent to release him specifically
from them. That is the necessary result of carrying him
personally back, and Mr. Stanton would hold under the next
President — if any of you can name him, I will supply in the
argument his name — I can name several; whether it is the
President that is to come in by removal from office, or the
President by the election of the people in the autumn. Either
way he would have a choice to relieve himself from the Secre
taries. No; I think they would all then be in a shape for
him, all having been appointed by somebody that had pre
ceded him, and he would not have any chance at all.

Such absurdity, either in reasoning or practical result, can
never be countenanced by the judgment of this court. If
the office of the Secretary of War is within the proviso, and
it certainly is, as it is not contended that the other Secreta
ries are not in their offices within it, then Mr. Stanton is or
is not protected by the proviso. If he is not protected by the
proviso his case is not provided for. Now, suppose this pro
viso had contained a second proviso following after the first,
"and provided further, that the persons now holding the
offices of Secretary of War, etc., who were appointed and
commissioned by Mr. Lincoln, shall not be deemed within
the above proviso, which regulates the tenure of those
offices," that would not have carried the offices back under
the new tenure of the operative section, but simply have
provided that, the offices being governed by the proviso, the
incumbents, under the particular circumstances of their case,
should not be even protected by the proviso; and this is the
necessary construction of the act.

If this be the real construction, there is the end of the
crime. If the construction be equivocal or ambiguous, the
honorable manager [Mr. Boutwell] says it would be abhor
rent to every sense of justice to punish the President for
having erred in its construction; but being so plain a case

IMPEACHMENT OF PRESIDENT JOHNSON 511

that nobody can say two words on the one side or the other
of it, it is mere assumption to say that there is a doubt or
difficulty, and that an argument is necessary. Well, we cer
tainly have belied on the one side and the other the proposi
tion of this absolute plainness, for we have spent a great
many words on this subject on the one side and the other.
This being so, let us consider what the President did; and
assuming that the statute covers Mr. Stanton's case, assum
ing that the removal of Mr. Stanton is prohibited by it under
the penalties, let us see what the President did.

I have said to you that Mr. Stanton had a title to this
office dependent on the President's pleasure. He claimed, or
others claimed for him, that he had a tenure dependent on
the statute. The question of dependence on the statute was
a question to be mooted and determined as a novel one; the
question of tenure by appointment was indubitable; and the
President proposed to put himself in the attitude of reducing
the tenure of Mr. Stanton to his statutory tenure at least.
He therefore issues a paper which is a revocation of his com
mission, a recall of his office, as it depends on presidential
appointment. Without that no question ever could be raised
by any person upon the statutory tenure, because the presi
dential tenure would be an adequate answer to a quo war-
ranto. The President then, peaceably and in writing, issued
a paper which is served upon Mr. Stanton, saying, in effect,
"I, the President of the United States, by such authority as
I possess, relieve or remove you from the office of Secretary
of War"; and that that recalled and terminated the com
mission and the title that was derived from presidential
appointment nobody can deny.

Did the President proceed further? When Mr. Stanton,
as he might reasonably have expected; when, as upon the
evidence he did probably calculate, instead of adhering to
his opinion that the tenure-of -office act was unconstitu
tional and that the tenure-of-office act did not include his

512 SPEECHES OF WILLIAM MAXWELL EVARTS

title, refused to yield the only title that on Mr. Stanton's
profession he held, to wit, the presidential appointment, to
this recall, did the President then interpose force to termi
nate his statutory title, or did he, having thus reduced him
to the condition of his statutory title then propose and then
act either in submission to the power which Mr. Stanton had
over him, or did he wish to have the question of the statutory
title determined at law? It is enough to say that he did not
do anything in the way of force; that he expected in advance,
as appears by his statements to General Sherman, that Mr.
Stanton would yield the office. Why should Mr. Stanton
not yield it? The grounds on which he had put himself in
August were that his duty required him to hold the office
until Congress met; that is to hold it so that the presidential
appointment could not take effect without your concurrence.
Congress had met and was in session, and this "public duty"
of Mr. Stanton, on his own statement had expired. Mr.
Stanton had told him that the act was unconstitutional and
had aided in writing the message that so disclosed the presi
dential opinion to you.

He had concurred in the opinion that he was not within
the act. His retirement on this order would be in submis
sion to these views, if not in submission to the views Senators
here had expressed that no man could be imagined who
would refuse to give up office in the cabinet when desired by
the President; but if that predicament was excusable while
this Senate was not in session to prevent a bad appointment,
if that was feared, how could it be a reason when this Senate
was in session? Mr. Stanton having stated to General
Thomas on the first presentation of his credential that he
wanted to know whether he desired him to vacate at once,
or would give him time to remove his private papers, and
that having been reported to the President, the President
regarded it as all settled, and so informed his cabinet, as you
have permitted to be given in evidence. After that, after

IMPEACHMENT OF PRESIDENT JOHNSON 513

the 21st, what act is charged in this article? Up to and
through the 21st and the written order of removal and its
delivery to Mr. Stanton, and the repose of the President
upon that posture in which Mr. Stanton left it, what was
done by the President about that office? Nothing whatever.
There was a desire, an effort to seize upon a movement made
by Mr. Stanton, based upon an affidavit, not that he had
removed from office, but sworn to on the 21st, and again on
the early morning of the 22d, that he was still in the office
and held it against General Thomas, and instantly the Presi
dent said, "Very well, the matter is in Court."

It might have gone into Court on the trial of an indictment
against Thomas ; but a speedier method was arrived at in the
consultations of the President with his counsel, to have a
habeas corpus carried forward before the Supreme Court, and
jump at that. Then Mr. Chief Justice Carter, who, I take
it, all who know him understand to be one who sees as far
into a millstone as most people, put that cause out of his
Court by its own weight and the habeas corpus fell with it.
That is all that is proved and all that is done. I submit to
you, therefore, that the case of a resistance or violation of
law does not at all arise. We do not even get to the position
of whether a formal and peaceable violation, for the purpose
of raising the question before the Supreme Court, was allow
able. A revocation of the presidential title of Stanton was
allowable; a resistance of the statutory title was not at
tempted; and the matter stood precisely as it would stand
if a person was in the habit of cutting wood on your lot, and
claimed a title to it, and meant to have a right to cut wood
there, and before you went to law with him to determine the
right in an action of trespass you were careful to withdraw a
license terminable at will which you had given him and under
which he was cutting wood. Withdraw your license before
you bring your action of trespass or you will be beaten in it.
Withdraw your license, and then he cuts upon his claim of

35

514 SPEECHES OF WILLIAM MAXWELL EVARTS

right, and your action of trespass has its course and deter
mines title. That was the situation.

All that is said about the right to violate unconstitutional
laws never can have the footing for consideration, where all
that is done by anybody is to put upon paper the case out
of which, as an instance, the judgment of a Court can be
called for as to a violation or no violation. If there must be
an intervention of force, then a law may be said to be vio
lated and an offender must suffer, accordingly as it shall
prove to be constitutional or unconstitutional. But where
there is a Constitution as the predominant law, the statute
as an inferior law, and an executive mandate is issued by the
President in pursuance of either one law or the other, accord
ing to which is in force, for they both cannot be, we suppose,
then he commits no violation of the law in thus presenting
for consideration and determination the case.

We must, then, come either to intent, purpose, motive,
some force prepared, meditated, threatened, or applied, or
some evil invasion of the actual working of the department
of the Government in order to give substance to this allega
tion of fault. No such fact, no such intent, no such purpose
is shown. We are prevented from showing the attendant
views, information, and purpose upon which the President
proceeded; and if so, it must be upon the ground that views,
intent, and purpose do not qualify the act. Very well, then,
carry it through so; let the managers be held to the narrow
ness of their charges when they ask for judgment as they
are when they exclude testimony, and let it be determined
upon their reasoning on an article framed upon this plan,
"that the President of the United States, well knowing the
act to be unconstitutional, as in fact it is, undertook to make
an appointment contrary to its provisions and conformable
to the Constitution of the United States, with the intent that
the Constitution of the United States should prevail in regard
to the office in overthrow of the authority of the act of Con-

IMPEACHMENT OF PRESIDENT JOHNSON 515

gress, and thereupon and thereby, with an intent against
which there can be no presumption, for he is presumed to
have intended to do what he did do, we ask that for that
purpose of obeying the Constitution rather than an invalid
law he should be removed from office!"

And this absurdity is no greater than — for it is but a state
ment of — the propositions of law and of fact to which the
honorable managers have reduced themselves in their theo
ries of this cause, which exclude all evidence of intent or
purpose and of effect and conduct, and take hold upon mere
personal infraction of a statute of the United States, grant
ing, for the purpose of argument, that it may be unconstitu
tional, and insisting that, under your judgments, it shall not
make any difference whether it is unconstitutional or not. If
that be so, then we have a right to claim that it is unconsti
tutional for the purposes of your judgment; and they agree
that if you cannot so treat it and find us guilty, then it would
be against the first principles of justice to punish us for an
erroneous or mistaken opinion, concerning constitutionality

Now, the review of the evidence I do not purpose to weary
you with. It all lies within the grasp of a handful on either
side, and it will astonish you, if you have not already perused
the record, how much of it depends upon the arguments or
the debates of counsel, how little upon what is included in the
testimony. Already your attention has been turned to the
simplicity and folly, perhaps, of the conduct of General
Thomas; already your attention must have fixed itself upon
the fact that to prove this threatened coup d'etat to over
throw the Government of the United States and control the
Treasury and the War Department you had to go to Dela
ware to prove a statement by Mr. Karsner that twenty days
afterward Thomas said he would kick Stanton out. That is
the fact ; there is no getting over it. A coup d'Stat in Wash'ng-
ton on the 21st of February, meditated, prepared, planned by
military force, is proved by Karsner, brought from Delaware

516 SPEECHES OF WILLIAM MAXWELL EVARTS

to say that on the 9th of March, in the east room, Genera]
Thomas said he meant to kick Stanton out. That phrase,
disrespectful as it is, and undoubtedly intimating force, is
rather of a personal than of a national act. I submit
that criticism is well founded. I think so. It comes up
to a breach of the peace, provided it has been perpetrated.
But it does not come up to that kind of proceeding
by which Louis Napoleon seized the liberties of the
French republic; and we expected, under the heats under
which this impeachment was found, that we should find
something of that kind. The managers do not neglect little
pieces of evidence, as is shown by their production of Mr.
Karsner; and if they find this needle in a haystack and
produce it as the sharp point of their case, there is nothing
else, there is no bristling of bayonets under the hay-mow,
you may be sure. Are there, then, any limits or discrimina
tions in transactions of state? Are there public prosecutions,
public dangers, public force, public menace? Undoubtedly
there might be, and undoubtedly many who voted for im
peachment supposed there were; and undoubtedly the people
of the United States, when- they heard there had been an
impeachment voted, took it for granted there was something
to appear. We have gone through it all. There is no defect
of power nor of will. Every channel of the public informa
tion, even the newspapers, seem to be ardent and eager
enough to aid this prosecution. Everybody in this country,
all the people of the United States, are interested. They
love their liberties; they love their Government; and if any
body knew of anything that would bear on that question of
force, the coup d'Stat, we should have heard it. We must,
then, submit, with great respect, that upon this evidence and
upon these allegations there is no case made out of evil pur
pose, of large design of any kind, and no act that in form is
an infraction of any law.

Now, what is the attitude which you must occupy toward

IMPEACHMENT OF PRESIDENT JOHNSON 517

each particular charge in these articles? Guilty or not guilty
of a high crime and misdemeanor by reason of charges made
and proved in that article; guilty of what the Constitution
means as sufficient cause for removal of a President from
office within that article. You are not to reach over from
one article to another; you are to say guilty or not guilty
of each as it comes along; and you are to take the first one
as it appears; you are to treat it as within the premises
charged and proved; you are to treat the President of the
United States, for the purpose of that determination, as if
he were innocent of everything else, of good politics and good
conduct; you are to deal with him under your oath to ad
minister impartial justice within the premises of accusation
and proof as if President Lincoln were charged with the
same thing, or General Grant, if the proposition that political
gratitude is a lively sense of benefits expected leads men's
minds forward rather than backward in the list of Presi
dents; you are to treat it as if the respondent were innocent,
as if he were your friend, as if you agreed in public senti
ment, in public policy; and nevertheless the crime charged
and proved is such as that you will remove General Wash
ington or President Lincoln for the same offence.

I am not to be told that it was competent for the managers
to prove that there were coup d'Stats, hidden purposes of evil
to the State, threatened in this innocent and formal act
apparently. Let them prove it, and then let us disprove it,
and then judge us within the compass of the testimony and
according to the law governing these considerations. But I
ask you if I do not put it to you truly that within the prem
ises of a charge and proof the same judgment must go against
President Lincoln with his good politics, and General Wash
ington with his majestic character, as against the respondent?

And so, as you go along from the first to the second article
will you remove him for having made an error about the
repeal or non-repeal of statutes in regard to appointments

518 SPEECHES OF WILLIAM MAXWELL EVARTS

to office, if you can find a fault? I cannot see any fault under
any of the forms of the statutes. If the power of removal of
Mr. Stanton under the former practice of the Government
and unrestricted by this civil-tenure act existed, it existed
during the session as well as during the recess. If that were
debatable and disputable the prevailing opinion was that it
covered, and the practice of the Government shows that it
covered, the removal during the session. At any rate, you
must judge of this as you would have judged of Mr. Lincoln,
if he had been charged with a high crime in appointing Mr.
Skinner to be Postmaster General when there was not any
authority under the appointment acts of the United States.
And this brings me very properly to consider, as I shall
very briefly, in what attitude the President stands before
you when the discussion of vicious politics or of repugnant
politics, whichever may be right or wrong, is removed from
the case. I do not hesitate to say that if you separate your
feelings and your conduct, his feelings and his conduct, from
the aggravations of politics as they have been bred since his
elevation to the Presidency, under the peculiar circumstances
which placed him there, and your views in their severity,
governed, undoubtedly, by the grave juncture of the affairs
of the country, are reduced to the ordinary standard and
style of estimate that should prevail between the depart
ments of this Government, I do not hesitate to say that upon
the impeachment investigations and upon the impeachment
evidence you leave the general standing of the President un
impaired in his conduct and character as a man or as a
magistrate. Agree that his policy has thwarted and opposed
your policy, and agree that yours is the rightful policy;
nevertheless, within the Constitution and within his right,
and within his principles as belonging to him and known and
understood when he was elevated to the office, I apprehend
that no reasonable man can find it in his heart to say that
evil has been proved against him here. And how much is

IMPEACHMENT OF PRESIDENT JOHNSON 519

there in his conduct toward and for his country that up to
this period of division commends itself not only to your ap
proval but to the approval and applause of all his country
men? I do not insist upon this topic, but I ask you to agree
with me in this : that his personal traits of character and the
circumstances of his career have made him in opinion what
he is, without learning, as it is said by his biographers, never
having enjoyed a day's schooling in his life, devoted always
to such energetic pursuits in the service of the State as com
mended him to the favor of his fellow-citizens and raised
him step by step through all the gradations of the public
service, and in every trial of fidelity to his origin and to the
common interests proved faithful, struggling always in his
public life against the aristocratic influences and oppressions
which domineered so much in the section of country from
which he came. He was always faithful to the common
interest of the common people, and carried by his aid and
efforts as much as any one else the popular measure of the
homestead act against the southern policy and the aristo
cratic purposes of the governing interests of the south.

And I ask you to notice that, bred in a school of Tennessee
democratic politics, he had always learned to believe that the
Constitution must and should be preserved; and I ask you
to recognize that when it was in peril, and all men south of
a certain line took up arms against it, and all men north
ought to have taken up arms in politics or in war for it, he
loved the country and the Constitution more than he loved
his section and the glories that were promised by the evil
spirits of the rebellion. I ask you whether he was not as
firm in his devotion to the Constitution when he said, in
December, 1860.

Then let us stand by the Constitution; and, in saving the
Union, we save this, the greatest Government on earth.

And whether, after the battle of Bull Run, he did not show
as great an adhesion to the Constitution when he said:

520 SPEECHES OF WILLIAM MAXWELL EVARTS

The Constitution — which is based on principles immutable,
and upon which rest the rights of men and the hopes and expec
tations of those who love freedom throughout the civilized world —
must be maintained.

He is no rhetorician and no theorist, no sophist and no
philosopher. The Constitution is to him the only political
book that he reads. The Constitution is to him the only
great authority which he obeys. His mind may not expand;
his views may not be so plastic as those of many of his coun
trymen; he may not think we have outlived the Constitu
tion, and he may not be able to embrace the Declaration of
Independence as superior and predominant to it. But to
the Constitution he adheres. For it and under it he has
served the State from boyhood up — labored for, loved it.
For it he has stood in arms against the frowns of a Senate;
for it he has stood in arms against the rebellious forces of
the enemy; and to it he has bowed three times a day with a
more than eastern devotion.

And when I have heard drawn from the past cases of
impeachment and attempts at deposition, and five hundred
years have been spoken of as furnishing the precedents ex
plored by the honorable managers, I have thought they found
no case where one was impeached for obeying a higher duty
rather than a written law regarded as repugnant to it, and
yet, familiar to every child in this country, as well as to every
scholar, a precedent much older comes much nearer to this
expected entanglement. When the princes came to King
Darius and asked that a law should be made that "whoso
ever shall ask any petition for thirty days, save of thee, O
king, he shall be cast into the den of lions"; and when the
plea was made that "the law of the Medes and Persians
altereth not," and the minister of that day, the great head
and manager of the affairs of the empire, was found still to
maintain his devotion to the superior law, which made an
infraction of the lower law, then was the case when the

IMPEACHMENT OF PRESIDENT JOHNSON 521

question was whether the power to which he had been
obedient was adequate to his protection against the power
that he had disobeyed; and now the question is whether the
Constitution is adequate to the protection of the President
for his obedience to it against a law that the princes have
ordained that seeks to assert itself against it. The result of
that impeachment we all know, and the protection of the
higher power was not withheld from the obedient servant.

The honorable Manager, Mr. Wilson, in the very interest
ing and valuable report of the minority of the Judiciary Com
mittee, entertains and warns the House of the fate of im
peachment as turning always upon those who were ready
with its axe and sword to destroy. He gives, in the language
of Lord Caernarvon on Lord Danby's trial, a history of the
whole force of them, and everybody is turned against in his
turn that draws this sword. In this older case that I have
referred to you may remember in the brief narrative that we
have a history of the sequel of the impeachers :

And they brought those men which had accused Daniel, and
they cast them into the den of lions, them, their children, and their
wives; and the lions had the mastery of them, and brake all their
bones in pieces or ever they came at the bottom of the den.

This, then, Senators, is an issue not of political but of per
sonal guilt, within the limits of the charge and within the
limits of the proof. Whoever decides it must so decide, and
must decide upon that responsibility which belongs to an
infliction of actual and real punishment upon the respondent.
We all hold one the other in trust; and when the natural life
is taken He who framed it demands "Where is thy brother?"
And when under our frame of Government, whereby the
creation of all departments proceeds from the people, which
breathes into these departments, executive and judicial, the
breath of life; whose favor is yours as well as the President's,
continuing force and strength, asks of you, as your sentence
is promulgated, "Where is thy brother in this government

522 SPEECHES OF WILLIAM MAXWELL EVARTS

whom we created and maintained alive?" no answer can be
given that will satisfy them or will satisfy you, unless it be
in truth and in fact that for his guilt he was slain by the
sword of the Constitution upon the altar of Justice. If that
be the answer you are acquit; he is condemned; and the Con
stitution has triumphed, for he has disobeyed and not
obeyed it, and you have obeyed and not disobeyed it.

Power does not always sway and swing from the same
centre. I have seen great changes and great evils come from
this matter of unconstitutional laws not attended to as un
constitutional, but asserted, and prevailing, too, against the
Constitution, till at last the power of the Constitution took
other form than that of peaceful, judicial determination and
execution. I will put some instances of the wickedness of
disobeying unconstitutional laws and of the triumph of those
who maintained it to be right and proper.

I knew a case where the State of Georgia undertook to
make it penal for a Christian missionary to preach the gospel
to the Indians, and I knew by whose advice the missionary
determined that he would preach the gospel and not obey
the law of Georgia, on the assurance that the Constitution
of the United States would bear him out in it; and the mis
sionary, as gentle as a woman, but as firm as every free citi
zen of the United States ought to be, kept on teaching to
the Cherokees.

And I knew the great leader of the moral and religious
sentiment of the United States, who, representing in this
body, and by the same name and of the blood of one of its
distinguished Senators now [Mr. Frelinghuysen], the State
of New Jersey, tried hard to save his country from the
degradation of the oppression of the Indians at the instance
of the haughty planters of Georgia. The Supreme Court of
the United States held the law unconstitutional and issued
its mandate, and the State of Georgia laughed at it and kept
the missionary in prison, and Chief Justice Marshall and

IMPEACHMENT OF PRESIDENT JOHNSON 523

Judge Story and their colleagues hung their heads at the
want of power in the Constitution to maintain the depart
ments of it. But the war came, and as from the clouds from
Lookout Mountain swooping down upon Missionary Ridge
came the thunders of the violated Constitution of the United
States and the lightnings of its power, over the still home of
the missionary Worcester, and the grave of the missionary
Worcester, taught the State of Georgia what comes of vio
lating the Constitution of the United States.

I have seen an honored citizen of the State of Massachu
setts, in behalf of its colored seamen, seek to make a case by
visiting South Carolina to extend over those poor and feeble
people the protection of the Constitution of the United
States. I have seen him attended by a daughter and grand
child of a signer of the Declaration of Independence and a
framer of the Constitution, who might be supposed to have
a right to its protection, driven by the power of Charleston
and the power of South Carolina, and the mob and the gen
tlemen alike, out of that State and prevented from making
a case to take to the Supreme Court to assert the protection
of the Constitution. And I have lived to see the case thus
made up determined that if the Massachusetts seamen, for
the support of slavery, could not have a case made up, then
slavery must cease; and I have lived to see a great captain
of our armies, a General of the name and blood of Sherman,
sweep his tempestuous war from the mountain to the sea,
and returning home trample the State of South Carolina
beneath the tread of his soldiery; and I have thought that
the Constitution of the United States had some processes
stronger than civil mandates that no resistance could meet.
I do not think the people of Massachusetts suppose that
efforts to set aside unconstitutional laws and to make cases
for the Supreme Court of the United States are so wicked as
is urged here by some of its representatives; and I believe
that if we cannot be taught by the lessons we have learned

524 SPEECHES OF WILLIAM MAXWELL EVARTS

of obedience to the Constitution in peaceful methods of find
ing out its meaning, we shall yet need to receive some other
instruction on the subject.

The strength of every system is in its weakest part. Alas
for that rule! But when the weakest part breaks, the whole
is broken. The chain lets slip the ship when the weak link
breaks, and the ship founders. The body fails when the
weak function is vitally attacked; and so with every struc
ture, social and political, the weak point is the point of dan
ger, and the weak point of the Constitution is now before
you in the maintenance of the co-ordination of the depart
ments of the Government, and if one cannot be kept from
devouring another then the experiment of our ancestors will
fail. They attempted to interpose justice. If that fails,
what can endure?

We have come all at once to the great experiences and
trials of a full-grown nation, all of which we thought we
should escape. We never dreamed that an instructed and
equal people, with freedom in every form, with a Government
yielding to the touch of popular will so readily, ever would
come to the trials of force against it. We never thought that
what other systems from oppression had developed — civil
war — would be our fate without oppression. We never
thought that the remedy to get rid of a despotic ruler fixed
by a Constitution against the will of the people would ever
bring assassination into our political experience. We never
thought that political differences under an elective Presi
dency would bring in array the departments of the Govern
ment against one another to anticipate by ten months the
operation of the regular election. And yet we take them all,
one after another, and we take them because we have grown
to the full vigor of manhood, when the strong passions and
interests that have destroyed other nations, composed of
human nature like ourselves, have overthrown them. But
we have met by the powers of the Constitution these great

IMPEACHMENT OF PRESIDENT JOHNSON 525

dangers — prophesied when they would arise as likely to be
our doom — the distractions of civil strife, the exhaustions
of powerful war, the intervention of the regularity of power
through the violence of assassination. We could summon
from the people a million of men and inexhaustible treasure
to help the Constitution in its time of need. Can we sum
mon now resources enough of civil prudence and of restraint
of passion to carry us through this trial, so that whatever
result may follow, in whatever form, the people may feel
that the Constitution has received no wound ! To this Court,
the last and best resort for this determination, it is to be left.
And oh, if you could only carry yourselves back to the spirit
and the purpose and the wisdom and the courage of the
framers of the Government, how safe would it be in your
hands ! How safe is it now in your hands, for you who have
entered into their labors will see to it that the structure of
your work comports in durability and excellency with theirs.
Indeed, so familiar has the course of the argument made us
with the names of the men of the convention and of the first
Congress that I could sometimes seem to think that the
presence even of the Chief Justice was replaced by the serene
majesty of Washington, and that from Massachusetts we
had Adams and Ames, from Connecticut Sherman and Ells
worth, from New Jersey Paterson and Boudinot, and from
New York Hamilton and Benson, and that they were to
determine this case for us. Act, then, as if under this serene
and majestic presence your deliberations were to be con
ducted to their close, and the Constitution was to come out
from the watchful solicitude of these great guardians of it
as if from their own judgment in this high court of impeach
ment.

VI

ARGUMENT IN THE UNITED STATES SUPREME
COURT, ON BEHALF OF THE GOVERNMENT,
IN HEPBURN VS. GRISWOLD (LEGAL TENDER

CASE)

NOTE

By the legislation of Congress in 1862 the notes of the United
States were made legal tender for the payment of private debts.
The case of Hepburn vs. Griswold (Supreme Court Reports, 8
Wallace 603) brought squarely before the Supreme Court the
question of the power of Congress under the Constitution to enact
the measures in question and whether they were applicable to debts
contracted prior to the enactment. This case was argued at the
same time as the case of Bronson vs. Rodes (7 Wallace, 229).
Both cases involved controversies between private litigants that
turned upon the effect of the legal tender legislation. The cases
were argued and re-argued, and upon the re-argument, December
9 and 10, 1868, Mr. Evarts, being then Attorney General of the
United States, delivered the following argument on the public
questions involved, to sustain in behalf of the Government the
Constitutionality of the legal tender act, at the same time filing
with the Court his brief in the cases. Mr. Clarkson N. Potter
appeared as his opponent. When the legal tender question was
brought before the Supreme Court, unusual public interest was
aroused from the fact that Mr. Chase, who as Secretary of the
Treasury had, during the Civil War, urged upon Congress the im
portance and necessity of this legislation to support the credit
of the Government under the stress of the war, was now the
Chief Justice of the Court that was to determine the Constitu
tional validity of its provisions. It was in these cases that the
Chief Justice by his influence and vote in a divided court con
demned as unconstitutional and void the very measures that his
influence at the head of the finances of the Government had been
largely instrumental in procuring from Congress. The case was

526

LEGAL TENDER CASE 527

subsequently reversed in Knox vs. Lee (12 Wallace 457) and the
legal tender legislation was upheld.

Mr. Evarts, in his eulogy on Chief Justice Chase, thus speaks of
this incident in Mr. Chase's career:

"And now, when, after repeated argument at the bar, and long
deliberations of the Court, the decision was announced, the de
termining opinion of the Chief Justice, in an equal division of the
six associate justices, pronounced the legal tender acts unconstitu
tional, as not within the discretion of the political departments of
Government, Congress, and the Executive, to determine this very
question of the necessity of the juncture as justifying their enact
ment.

"The singularity of the situation struck everybody, and greatly
divided public sentiment between applause and reproaches of the
Chief Justice, as the principal figure both in the administrative
measure and in its judicial condemnation. But soon, a new phase
of the unsettled agitation on the merits of the constitutional ques
tion, drew public attention, and created even greater excitement of
feeling and diversity of sentiment. The Court, which had been
hostile to the appointing power of President Johnson, had been
again opened by Congress to its permanent number, and its vacan
cies had been filled. A new case, involving the vexed question,
was heard by the Court, and the validity of the disputed laws was
sustained by its judgment. The signal spectacle of the Court,
which had judged over Congress and the Secretary, now judging
over itself, gave rise to much satire on one side and the other, and
to some coarseness of contumely as to the motives and the means
of these eventful mutations in matters, where stability and uni
formity are, confessedly, of the highest value to the public inter
ests, and to the dignity of Government.

"Confessing to a firm approval of the final disposition of the
constitutional question by the Court, I concede it to be a subject of
thorough regret that the just result was not reached by less un
certain steps. But, with this my adverse attitude to the Chief
Justice's judicial position on the question, I find no difficulty in
discarding all suggestions which would mix up political calculations
with his judicial action. The error of the Chief Justice, if, under
the last judgment of the Court, we may venture so to consider it,

528 SPEECHES OF WILLIAM MAXWELL EVARTS

was in following his strong sense of the supreme importance of re
storing the integrity of the currency, and his impatience and despair
at the feebleness of the political departments of the Government
in that direction, to the point of concluding that the final wisdom
of this great question, — inter apices juris, as well as of the highest
reasons of state — was to deny to the brief exigency of war, what was
so dangerous to the permanent necessities of peace. But a larger
reason and a wider prudence, as it would seem, favor the prevailing
judgment, which refused to cripple the permanent faculties of
Government for the unforeseen duties of the future, and drew back
the Court from the perilous edge of law-making, which, overpassed,
must react to cripple, in turn, the essential judicial power. The
past, thus, was not discredited, nor the future disabled."

ARGUMENT

// the Court please: At the last term of this Court, in two
cases which had been argued before it, and, doubtless, ably
and thoroughly argued, to which the United States was not
a party, and which were held under advisement by the Court,
your Honors were pleased to direct a re-argument as between
the parties, and also to extend a leave to the Attorney Gen
eral to be heard on the part of the United States. This
permissive invitation of the Court —

THE CHIEF JUSTICE: It is proper to be said that the
Government asked to be heard. Your predecessor, Mr.
Stanbery appeared in Court with a letter from the Secretary
of the Treasury, asking that the Government might be
heard through its Attorney General on these questions.

MR. EVARTS: I was proceeding, if your Honors please,
to state as much. The re-argument, as I understand, was
ordered by the Court, at least, that is the effect of the
order. I am not advised of the motives of the Court in
making the order.

This permissive invitation to the law officer of the Govern
ment to be heard in the causes was understood to be founded
upon a representation that the public interests involved

LEGAL TENDER CASE 529

were such as were regarded by the executive department as
proper to be presented in behalf of the Government to the
consideration of the Court.

Now, this permission to the Attorney General must be
understood, of course, to extend only to the public question
that is involved and upon unfolding the records of this con
troversy between these private parties, it is discovered that
the public question, involved in the discussion of their rights,
is the constitutionality and construction of a certain act of
Congress — the act of February 25, 1862. The point in
which that act comes to touch these private interests in
controversy, and thus to be involved in the forensic discus
sion and the judicial decision of these private controversies,
has to do with that portion of the act which imparts to a
certain class of the public securities of the United States, in
favor of the public creditor, the function or usefulness of
service as money in the payment of private debts, at the will
of the debtor. This faculty in favor of the public securities
and the public credit, is imparted by that clause which
provides that they shall be lawful money and a legal tender
for all private debts within the United States.

In these private litigations to which I have referred, and
in consequence of which the question is now to be discussed
in the public interests, rights were alleged on the one side,
and opposed on the other, which depended for their support
upon the validity of this act of Congress. Now, in this dis
cussion which I shall undertake, I shall not be unobservant
of the posture of this question. It is not an original inquiry
before your Honors, that is now being instituted. I enter a
field in which the harvest has already been reaped by the
sharp sickles of the lawyers, and has been bound into sheaves
in the judgments of the subordinate courts. I am, there
fore, not to treat it except so far as I may in aid of what light
has already been shed upon the subject. Besides the con
fidence in the investigations of the bar which have preceded

36

530 SPEECHES OF WILLIAM MAXWELL EVARTS

me in this question, more than in almost any other, which is
yet to be passed upon by the highest tribunal of the land,
we have the most extensive, the most satisfactory, the most
fruitful, the most elaborate judicial examinations, on the
one side and on the other of this controversy, in the judg
ments of some of the ablest and most distinguished State
Courts in the country. I think no one can hesitate to say
that, in the judgments of the Court of the State of New York,
of Pennsylvania, and of Kentucky, in each one there being
divided and dissenting opinions, there has been, under the
responsibility of judicial and impartial investigation and
discussion, as thorough, as learned, and as faithful an
examination of the topics that must be passed upon by this
Court, as it lies in the resources of the intellect of man to
furnish.

Now, that we may not argue too much on generalities,
when the subject is so inviting to general discussions both of
economy and of political power, and that we may under
stand precisely the action of this Government that is brought
in question before this Court, thus invoking its highest
function to be applied, in its reason and judgment, to cor
rect the power of the country if it has erred, let us inquire
what it is that this act of the political authority of the
United States supported by an immense majority of the
Representatives of the people in the lower House, passed by
a vote of thirty to seven in the Senate, and approved by the
Executive of the United States, has undertaken to do, and
in what right or claim of the public interests and duty, it
has sought to perform the office of good government, accord
ing to its terms, over the people of this country.

The act is entitled "An Act to authorize the Issue of
United States Notes, and for the Redemption or Funding
thereof, and for Funding the Floating Debt of the United
States." It is, then, a measure, in its title and in its subject,
of the largest connection and importance with regard to the

LEGAL TENDER CASE 531

public credit, the public resources, the means, and agencies
and powers of Government.

Its operative section only, as the main feature and inci
dent in the enactment, present to the notice of the Court
and of the nation this particular provision, which is supposed
to militate against the guaranties of the Constitution, against
the private rights of the citizen. It is a provision that there
may be issued "on the credit of the United States, one
hundred and fifty millions of dollars of United States notes,
not bearing interest, payable to bearer at the Treasury of
the United States" and of convenient denominations; and
then this value, this service, this support to currency, is
imparted to this form of the public debt: "such notes herein
authorized shall be receivable in payment of all taxes, in
ternal duties, excises, debts and demands of every kind due
to the United States, except duties on imports."

The Government thus spreads them among the people as
being, not only evidence of its debt to them, but as accept
able in discharge of their debts to it — "of all claims and
demands against the United States, of every kind whatso
ever, except for interest upon bonds and notes which shall
be paid in coin." It professes to say to the subjects of the
Government, "this form of our indebtedness to you shall
be received by you in liquidation, or settlement and dis
charge, of all other forms of our indebtedness to you, except
our debts in the shape of bonds and notes, which shall be
payable in coin."

Then it is also provided that they shall be "lawful money
and a legal tender in payment of all debts, public and private,
within the United States, except duties on imports and inter
est as aforesaid." — a tender for all debts which the Govern
ment owes the citizen, and all debts that the citizen owes
the public, the Government.

In this financial arrangement proposed by the act is this
further feature, by which as I shall submit to the Court,

532 SPEECHES OF WILLIAM MAXWELL EVARTS

the Government undertakes to deal on its part, with one
side of the obligation, and with the citizens as a mass on the
other. It is provided that as among the citizens these
notes shall have the same virtue and faculty of liquidating
debts among them. So that, finally, all the authority for
the payment of debts shall end in securing to the parties
the possession of this credit of the Government, issued in
this form; and the Government professes, and, in fact, is
held for, the payment finally, in the liquidation as between
Government and the people, of these securities in coin.

But the scope and purpose of the financial arrangement
does not end here; for it is provided that any holder of these
notes to the amount of fifty dollars or any multiple of fifty,
may present them to the Treasurer of the United States,
and by an arrangement to facilitate the transaction, they
are entitled to receive bonds of the United States with inter
est payable semi-annually at six per cent per annum, re
deemable at certain dates. "Such United States notes shall
be received the same as coin, at their par value, in payment
for any loans that may be hereafter sold or negotiated by the
Secretary of the Treasury, and may be re-issued from time
to time as the exigencies of the public interests shall require."

As I understand it, of all that this act undertakes to ac
complish in the financial obligations of the Government to
the people and of the people to the Government, there is no
feature of it, the constitutionality of which is brought in
doubt, except the single and peculiar vigor, imparted to
these securities, of service in the liquidation between debtor
and creditor in private transactions, as money. All the
judicial opinions, all the forensic disputations, agree that,
although these notes do come distinctly up to the description
defined by a phrase, in our early constitutional period, of
"bills of credit," and although the Constitution contains no
express authority to emit bills of credit, although this act
purports, not only to give these notes currency in dis-

LEGAL TENDER CASE 533

charge of all obligations to the Government, except duties
on imports, but also compulsory power to liquidate, and to
settle and discharge, in a certain sense, all obligations of the
Government to the citizens ; yet, all that is constitutional. It
is within the authority of Congress, within the power of this
Government, and the question of appropriateness or of
adaptation or of wisdom, in these financial arrangements, up
to this point, is not open to any judicial disputation upon
any reason that can be found in the Constitution of the
United States.

There, then, remains for consideration only this point,
and it is much narrower than the discussion of whether the
Government of the United States has plenary authority
over the subject of legal tender in the United States, or
plenary authority over the question of money in the United
States; it is not at all a question whether the United States
Government can make, on its own motive and for its own sake,
tobacco or cotton a legal tender ; it is not a question whether,
upon its own motive and for its own sake, it can provide for
any arrangement of money, except the most restricted one
contemplated by the Constitution in any construction that
has been pretended; it is a quesiton whether, in dealing
with the public debt and the public taxes, the public re
sources of income and the public sources of expenditure —
whether, in grasping within its comprehension the whole
sphere of its duties and of the obligations of the citizen, in
reference to the financial authority, means, and adminis
tration of the Federal Government, they can interpose be
tween this issue — this form of credit — and this final pay
ment in gold that is to result according to the promise, —
whether they can interpose this expedient for sustaining
that credit, between the points of the issue and of the final
redemption and satisfaction; and distribute the equality of
the burden, which the necessities of the Government require
to be borne somewhere, between these points of issue and of

534 SPEECHES OF WILLIAM MAXWELL EVARTS

redemption, by this transfusion and impartial distribution
throughout the mass of the community, and in the trans
action of private debt and credit.

Now, if the Court please, it will be seen at the outset,
that this subject has the closest connection with the subject
of money, and with that feature in the subject of money
which relates to its being a compulsory legal tender in
liquidation of debt.

My first proposition, then, is that to determine what shall
be the money of a country, and how it shall serve its purposes as
a measure of value and a medium of exchange, including its
efficacy as a legal tender in satisfaction of debts, belongs to
government. So, too, to determine whether anything besides
money shall be a legal tender in satisfaction of debts among its
subjects or citizens belongs to government; for, to determine
that tobacco or cotton shall serve as a legal tender under the
authority of government, does not make it the money of
the Government necessarily. It is a provision, in terms and
in substance, that something besides money shall, under
some emergency and special motive to justify it, answer the
purposes of money. Now, I do not imagine that any phi
losopher or statesman or politician would ever think of
holding that this subject of the determination of what should
be the money of a country, or how it should perform its
services in respect to legal tender or otherwise, possibly
belonged to that domain of private rights which should be
withdrawn from all government. It is not a matter which
touches our relations, which are deeper and higher than those
of government. It does not affect the relations between
man and God, nor the questions of personal liberty or of
inalienable rights, or in any manner touch what philosophers
and moralists and statesmen consider should, in the advance
of society, be more and more largely withdrawn from the
domain of government, as liberty of conscience and liberty
of speech, and the right to property, to life, and to the pur-

LEGAL TENDER CASE 535

suit of happiness. This is social, this is public, this is gov
ernmental; this is wholly circumstantial, wholly modal;
and if there is anything that a community in coming to
gether submit to the regulation of a common authority, it is
this establishment of money, and this regulation of legal
tender.

So, too, I submit to the Court, that the actual regulation
of money and of legal tender in satisfaction of debts, is
neither a principal nor a substantive power of government.
It is a subordinate and administrative means, in aid of, in
connection with, some principal and substantive end and
duty of government. It has been employed, for its own
sake, upon its own motives only, but always as a means, as
a method, as a contrivance, for accomplishing some general
duty, some general obligation. And I submit that the whole
judgment to be passed upon the regulations by any govern
ment of this subject of the discharge of debt through the
medium of money or whatever else shall be established as
legal tender to that end, must be in reference to the wisdom
or the justice of the means.

Now, in saying that, properly, in discussions of polity or
of government, this matter of the money or of the legal
tender of a country in the discharge of debts, is not to be
regarded as a principal end or as a substantive power of gov
ernment, but as only a means towards an end, a faculty in
aid of a power, we are not to be understood as disparaging
the importance of the subordinate and administrative au
thority, or of the limits which morality, which justice, may
impose upon a government, or of the importance to the
people of some adequate guaranties for the establishment
and regulation of this means to an end, of this aid in execu
tion of a power necessary to the public interests and the
general welfare.

I have attempted to secure your Honors' assent to the
general introductory proposition, that, in its own nature,

536 SPEECHES OF WILLIAM MAXWELL EVARTS

the regulation of the legal tender of the country was in the
power of its government, and it was neither an end nor
characteristic of government in any political or philosophical
or public sense; but that it was an administrative and sub
ordinate means at the service of government for the execu
tion of some of its powers and some of its duties.

The learned counsel who argued against the constitu
tionality of this law, Mr. Potter, of New York, and attracted
the attention of all of us to the force and dignity of his ob
servations upon the general as well as upon the special
considerations of the case, was disposed to question this in
that form of criticism which has been often insisted upon,
namely, that this is not an inherent power of sovereignty.
These are general terms, — inherent power of sovereignty.
He then proceeds to say that it is not an inference that it
belongs inherently to government because governments
(and this he admits) have always possessed it.

It seems to me, when you admit that in the experience of
human affairs, in the arrangement of what belongs to the
Government, and what to personal rights not to be sub
jected to government, this power of regulation of tender has
always been in the possession of government, you admit
almost all that is necessary to show that, in its nature, it
belongs to government. But being still more specific, he
says that it may be reserved to the people. It may be
reserved from government, it may be denied and prohibited
to government; but if it should be, then it is obliterated
from the functions of society. Because, to say that the
individual possesses the power of regulating the legal tender
for the community or the power to have the legal tender con
form to what suits his conscience and his interests, is simply
to say that there shall be no legal tender at all; for it is by
its compulsory feature of authority and of law, imposed by
the consent of the community within which it prevails,
that it comes to be legal tender, which authority is expressed

LEGAL TENDER CASE 537

and enforced by that representation to which they commit
what belongs to their common consent, that is, to government.

Let us not, then, confound this step of the argument which
is to show that this power, this faculty, this means, this con
trivance, subordinate and administrative, which always
has been, and of necessity always must be, in the service of
the government for its general purposes, — does belong to
government in its very nature, with a subsequent step,
which is to show that it has not been withheld by the people
from the Government and thus obliterated from its functions,
and has not been denied in the principal and organic law of
our Government, the Constitution, so as to be no longer open
to this particular, subordinate legislation concerning it
which has been attempted. Both of these features might
be found in any government established by man upon the
consent of the governed, one that legal tender was with
drawn from governmental control, and the institution,
therefore, no longer at the service of Government, and in the
organic law itself, the Constitution itself, it had been estab
lished by positive enactment and within restricted and
definite rules and laws of prescription which terminated the
action of Government on the subject.

If it be, then, in the very nature of this subject, that the
regulation of legal tender is a means and appliance of gov
ernment, that it is impossible to range it within the personal
rights and immunities which are withdrawn from all govern
ment and not left to the control of the consenting will of
the people, the only question left for us then to determine,
is, whether, in our Government, this authority to the extent
and in the form and effect with which it has been attempted
to be exercised in the act of Congress in question is within
the permissive authority of Congress accorded by the Con
stitution. Now, this exercise of power by Congress may
exceed its true authority under our complex system of
government, for one of three reasons:

538 SPEECHES OF WILLIAM MAXWELL EVARTS

First, for the reason that the whole power is accorded by
the Constitution to the States, and therefore any interven
tion by the Federal Government in regulating legal tender
is beyond the powers conferred by the Constitution.

Second, because, though a certain measure of power over
the subject is accorded to the Federal Government, this
particular exercise of it, is beyond that permissive power.

Third, because this exercise of it, though within the per
missive powers conferred upon Congress as a means to their
execution, and, but for the prohibition, supported by due
constitutional authority, is found to be prohibited by some
express hi junction of the Constitution.

I submit to the Court that, upon the established rules of
constitutional construction, in dividing powers and in as
signing or accepting means towards powers, familiar to the
Court, it must be for one or other of these reasons, if at all,
that, this exercise of authority attempted in this act con
cerning a subject which belongs to the sphere of government,
is unconstitutional. Now, I submit that this exercise of
authority by Congress is no encroachment upon any con
stitutional power of the States concerning the subject of
legal tender. Whether or not it be withheld from the Fed
eral Government, whether or not it be prohibited to the
Federal Government, its exercise is no encroachment upon
any authority concerning the subject that is reserved to the
State Governments. It must pass out of the domain of all
government, if it does not exist in the Federal Government
and is not to be found in the State governments.

The principal argument in support of the pretension that
the regulation of legal tender falls of itself, without regard
to particular provisions in the Constitution on the subject,
within the domain of State authority, is, that it has to do
with, and is at the service of, the government that has
charge of the general mass of personal, domestic rights and
interests, which belong confessedly to the administration

LEGAL TENDER CASE 539

of the State go vernments ; that, in the contracts of the people,
the relations of debtor and creditor, and the enforcement
of the laws for the collection of debts, fixing the standard at
which debts are to be measured when pursued at law, and
when the authority of the government is to be exercised
for their compulsory collection, it belongs to the State
governments.

Now, at the outset, let us say that this presumption en
tirely fails of due support in the nature and reason of the
case, in regard to all that mass of personal rights and inter
ests that, in the very frame of the Federal Constitution, and
at the bottom of the motive which led to its formation, were
to be withdrawn from absolute State control. I refer to all
those private interests and relations as they arise between
citizens of different States, and as they arise between citizens
of the United States and foreigners. So far, then, as it
seems appurtenant to the administration of private rights
and interests, there is no presumption that the regulation of
legal tender in the settlement of transactions between citi
zens of different States, or citizens of the United States and
foreigners, should be accorded to the State governments.
The presumption is all the other way — that the final deter
mination of these rights and interests by the impartiality of
the General Government, should draw into the Federal
authority a control over the State tribunals and the State
laws, in regulating commerce by statute, as well as by judi
cial decision, between the States and with foreign nations.

But that presumption which, at the outset, is thus divided,
ceases to have any weight, I submit, in the judicial mind
when we find that the whole regulation of the money of the
country, has been deliberately, exclusively, peremptorily
assigned to the General Government, and that legal tender,
which, as Mr. Mills says, in his Political Economy, seems to
be inseparable from the idea of money, should be left, in
the distribution of powers between the two forms of admin-

540 SPEECHES OF WILLIAM MAXWELL EVARTS

istration, to two different and independent' authorities, can
scarcely be predicable of any rational scheme of govern
ment. Show me, in the arrangements between domestic
authority and general control, a deliberate conclusion that
the money of the country shall be carried over to the Federal,
and not left to the State authorities, and I deduce a presump
tion, I respectfully submit, that whatever is to be done by
law and government concerning legal tender, must by the
same reasoning, and on the same motives of duty and neces
sity, be carried to the General Government. Confessedly,
then, whatever general authority the States have left with
them concerning contracts, debts, duties, rights, and inter
ests, between citizen and citizen, and the enforcement of
them by law, so far as all these feel the modifications, the
influence, the operation of the money power of the country,
they must feel it as lodged in the General Government. We
understand, I think, the wisdom of our ancestors in making
this distribution of authority. We are to make a nation of
many States as towards the world; we are to make a nation
of many States as among the States themselves. We are to
bring together in bonds that unite, all that belongs to the
necessary conditions of union; and while we will leave, will
sedulously leave, all that is of local and domestic administra
tion, without interfering with what must properly belong to
the concerns they have in common, we will, nevertheless, as
sedulously and as firmly, insist in grouping under the powers
of the Federal Government all that should subtend the
entire area of the Union. While, therefore, they have the
arrangement of their courts and laws, of their process and
their methods of proceeding, yet the subject of the solution
of debt by money, we hold as appurtenant to the interests
which bring them into one union, — that therefore the Gen
eral Government must control it.

Now, has not Congress — has not the Federal Govern
ment — the whole power over the money of this country? I

LEGAL TENDER CASE 541

am not now arguing that it has the plenary power that may
be assigned to sovereignty theoretically, that it is not curbed.
But has it not all the power that there is? Have the States
any power? "Congress shall have power to coin money,
regulate the value thereof and of foreign coin." "To pro
vide for the punishment of counterfeiting the securities and
current coin of the United States." "No State shall coin
money; emit bills of credit."

Now, if the constitutional money of the country is that
which, in its nature, is susceptible of coinage, if that is all
the money that there may lawfully be in this country, which
is one part of the assumption of those who oppose the con
stitutionality of this law, then confessedly the Federal
Government has the complete control over the subject.
Whatever laws, therefore, may be made for the collection of
debt by the different States, however feeble or vigorous their
processes may be, when the obligation reaches the point of
debt measured in money, it is measured in the money of the
Federal Union.

But more closely than this, though, as I say, we must,
almost by a necessary presumption, hold that, if the power
of legal tender is not suppressed and is not modified or curbed
by positive provision in the Constitution, all that there is of
it must be in the Federal Government from the fact that the
money power is wholly in it, yet we see that the subject of
legal tender, to avoid any controversy on the subject, has
been, as I shall submit, wholly taken away from the States.

Now, the express prohibition upon the States is in a form
which carries an implication, I agree, that they may have
some authority on the subject of legal tender — an implica
tion, which, if it stood alone, would need to be observed as a
substantial faculty in the State governments — namely,
that they have some control on the subject. It reads, "No
State shall make anything but gold and silver coin a tender
in payment of debts."

542 SPEECHES OF WILLIAM MAXWELL EVARTS

There might have been a prohibition in the Constitution
that no State should make any law regarding legal tender.
But that, if the Court please, would have carried the pro
hibition into a region where it should not reach; for it would
have covered the laws as to the time and manner and mode
and circumstances in which a tender, to be effectual in
judicial cognizance, should be accomplished, with which we
have nothing to do; for instance, that it should be in the
presence of witnesses, that it should be with so many days
notice, or any other minor arrangements that properly
belong to the administration of local justice. Therefore,
this prohibition having only the object of securing the State
against the interference from what should be the subject of
legal tender, so far as they were concerned, their authority
took this form: "No state shall make anything but gold
and silver coin a tender in payment of debts." But this
implication, that the State may have something to say in its
legislation concerning the legal tender, provided it be kept
within gold and silver coin, is manifestly controlled from
any diversity or contradiction in its legislation as to the
legal tender which gold and silver coin shall serve, by the
prescription in the affirmative authority in the General
Government, of the whole regulation of gold and silver coin.
Regulation both of its production by coinage and of its
value as legal tender, is the regulation that is designed by
this ascription of authority to the Federal Government.

It is, therefore, impossible to place your finger upon a
single authority left in the States, to decry or to exalt any
form of the legal money of the United States, or to pre cribe
a rule or manner in which the coinage of the United States
or the foreign coinage regulated by the United States, shall
serve as a tender, otherwise than as according to the regu
lation and the coinage which the Federal Government shall
have established.

I submit that this argument which will be found running

LEGAL TENDER CASE 543

through these cases that, without an act of Congress, in
terms undertaking to say that a certain amount of gold
bullion pressed into the shape of an eagle, having the image
and superscription of our Government's authority, shall be
a legal tender at its face, without any such express assign
ment of efficacy to it when it is coined into eagles, — that it
is when coined into eagles — this value of bullion — ten dol
lars — made a legal tender all over the United States wherever
ten dollars is the measure of obligation. And if this author
ity is exercised only in this form and to this extent of coin
age and regulation of value for gold and then for silver by
the Federal Government, may I be told that a State has a
right to say that the gold dollars, the gold eagles, to which
you have assigned this value, shall not be a legal tender, and
that the silver dollars only shall? Is not that decrying the
regulation and the money regulated by the Federal Govern
ment, if the gold eagles are proscribed from service as a
measure of debt? Any implication, therefore, that, in the
States, there is left any authority to legislate concerning
legal tender in regard to the weight or value, or efficacy or
preference of gold or silver coins, either foreign or of our
Federal coinage, is wholly illusory. The prohibition to the
States does, by implication, give authority concerning the
form and circumstances of law regulating tender, as respects
the time of day at which it may be made, the presence of
witnesses, the presence of the coin, the substitute of paper
money as adequate, if no demand is made by the creditor
that the coin shall be produced, and other regulations of
that kind. But of all that relates to the measure and effi
cacy of gold and silver in the payment of debts in any State
of the Union, the Federal Constitution by the prohibition on
the States to make anything but gold and silver coin as
tender, and by the ascription to the Federal Government
of the whole regulation of the gold and silver coin of the
country, has left nothing in the States.

544 SPEECHES OF WILLIAM MAXWELL EVARTS

And this, if the Court please, is precisely what, a priori,
we should have expected. Certainly you are not to have
two governmental regulations in this country about legal
tender. If you have two, and one of these is capable of
being diversified into varieties of policy by forty different
States, what have you accomplished in assigning the
money power to the Federal Government? What have you
done in giving Congress the control over commerce between
the States and with foreign nations, if this first implement
of traffic, money, the measure of value and medium of ex
change, is not capable of regulation by Congress? It falls
within the general policy, therefore, that what could not be
left to diversity of legislation must be lodged where unity
could have dominion.

I may be permitted to refer, as a very brief indication
that this was the effect, and this the motive, of the provision
on this subject in the Federal Constitution, to a short pas
sage in a letter of the Connecticut delegates to that State,
commending the Federal Constitution to it for adoption.
They were Mr. Sherman and Mr. Ellsworth. It is quoted
on page 9 of my brief, as follows: "The restraint on the
legislatures of the several States, respecting emitting bills
of credit, making anything but money a tender in payment
of debts, or impairing the obligation of contracts by ex post
facto law, was thought necessary as a security to commerce in
which the interest of foreigners, as well as of the citizens of
different States, may be affected."

It was, then, within that motive which carried a large
body of principal powers, and of necessary means in execu
tion of those powers, to the Federal Government that this
provision was incorporated in the Constitution, and the
rigor with which, in the consideration of the subject when
framing the Constitution, all possible authority, even with
the consent of Congress, was withheld from the States, is
shown by the course of the debates. As it stood in the

LEGAL TENDER CASE 545

report of the "Committee on Detail," the provision was
this: "No State, without the consent of the legislature of the
United States, shall emit bills of credit, or make anything
but specie a tender in payment of debts." But this was
rejected under the peremptory motive, that what belonged
to the Federal Government should not be yielded tempora
rily, under any possible consideration, to the dominion of a
State.

Having thus disposed of any scintilla of governmental
power on the subject of legal tender, in the value and in the
substance to be used, being lodged hi the States, it is neces
sary now to see whether there are any positive prohibitions
upon the Federal Government defining, limiting, curbing,
its authority on the subject. And I am sure I need not argue
in support of this proposition, that the Constitution con
tains no word of prohibition, of limitation, or of exception
touching either of these questions.

First, the regulation of tender in payment of debts. It
would have been very easy to have included in the Constitu
tion an absolute prohibition or a modifying authority and
restrictive power; but there is not one word of prohibition,
of limitation or of exception in regulation of this means and
appliance of government, to wit, legal tender, to be found
in the Federal Constitution.

Second, there is not one word of prohibition, limitation, or
exception, in regulation of money, its currency, and its
efficacy in the payment of debts. There may be a limita
tion as to what money is or may be; but there is none affixed
to this affirmative authority concerning it.

Third, it is equally true that there are no such words of
restriction, limitation, or prohibition, touching the form,
vehicles, terms, or conditions, in and on which the public
credit can be issued by the Government in the performance
of its constitutional duties or the exercise of its constitutional
powers — none whatever; no limitation of the amount, no

37

546 SPEECHES OF WILLIAM MAXWELL EVARTS

limitation of the terms, or of the conditions, or of the means,
to constitute currency, to give credit, and to accomplish
the objects imperatively demanded to be executed by the
Government.

Fourth, there is no such prohibition, limitation or excep
tion touching the regulation of contract by the General
Government, except indeed what would be implied from the
nature of government, that all its bankrupt laws are to be
uniform. We have thus far cleared the subject of two impor
tant considerations: first, the States have no authority in
the premises; second, the Federal Government, in terms,
submits to no restriction, no limitation, no prohibition in
the regulation of this subject.

Now, I contend, may it please the Court, that these prop
ositions alone exclude the conclusion that the Federal
Government has not authority in the matter of legal tender,
as inconsistent with all established rules of constitutional
construction. The general notion of our Government is
this: that, as between the Federal Government and the
States, the Constitution is to divide the powers of govern
ment as the welfare of the people has suggested to the wisdom
of its framers; that what the States should not retain or
possess, the General Government should have; that what
the General Government does not have, the States should
possess. Then there is another fundamental, perfectly
intelligible idea running through, not only our Constitution
but the constitution of every free people or of every people
advancing to freedom, and that is, that a certain area of
personal rights and personal immunities shall be withheld
from all government and left to the individual, independent :
rights of conscience, freedom of speech, freedom of the press,
which has come to be added as another form of freedom of
speech — all those ideas with which we are so familiar, which,
in the important stages of the progress of political science
are not accorded to any government. But, in the original

LEGAL TENDER CASE 547

design of the Federal Constitution, it was not thought very
important to take notice of this area of individual and per
sonal rights, because so long as the General Government took
only the powers accorded to it, and left the rest to the States,
it was for the States in their constitution to discriminate
between what they would regard as properly within the
service of government and what should be left to the free
dom of the citizens. In that way it is explained that the
original Constitution had scarcely anything that could be
regarded in the nature of a bill of rights. And although
contemporaneously, that defect was noticed, and its supply
promised in some way, should the Constitution be adopted,
it was not until the amendments were introduced that any
thing in the nature of a bill of rights in the Federal Constitu
tion was found. That necessity and wisdom, for such I
regard it, came from this : that, although the original idea of
leaving the States to discriminate between their powers of
government and what they would leave to their people, was
just, yet the very nature of the frame of the Government, of
limited scope, yet with sovereign powers within that scope,
carried a possibility and a peril of encroaching, in the exer
cise of the powers within that scope, upon the rights of the
citizen.

However, it was feared that, although there was no ex
press power given to Congress whereby it could make a law
respecting religion or abridging the freedom of the press,
yet there might be found in the exercise of the affirmative
powers accorded to it, a temptation, or a need, in the opin
ion of the legislature, to encroach upon this domain of indi
vidual rights. It was, consequently, provided, in limita
tion of the express powers, that they should not be construed
to contemplate a possibility of the invasion of this sphere of
personal rights. But, when we are dealing with a subject
that has no concern with personal rights, is no part of indi
vidual manhood, but is, in its very nature, a regulation

548 SPEECHES OF WILLIAM MAXWELL EVARTS

framed for society and under its authority, then you have
this only to consider, whether this power, belonging to
government, is limited in the Constitution or is assigned to
the States.

Now, to hold otherwise is to hold that a certain subordi
nate, administrative means, familiar to the experience of all
government as a part of its financial system, as well as its
regulation of justice among the citizens, has been expressly
prohibited to the State governments, has not been added to
the immunities of the citizens, has not been withheld by any
express prohibition from the General Government, and yet
by some insensible, unnoticed evaporation in the process of
distributing powers between the two Governments, passed
out of the resources of government altogether. Now, do
we not all know that, if this exercise of legislative authority,
which Congress has deemed to be lawful, was needed and
was useful, and yet was not permitted to the Federal Gov
ernment, the State governments could not have given us any
aid? The Constitution prohibited it. It is, then, left out
of government.

Now, I submit that the true presumption and implication
is, that when the prohibition of what belongs to government,
is applied to the States, it is understood to belong to the
General Government — I say, what belongs to government,
what is necessarily a part of government. If that be denied
to a State, the presumption then arises that it falls within
the means and appliances that should be at the service of
the general and common powers of government applied to
the common interests. There may be a presumption that,
if the sum of political authority which is necessary and use
ful in government has been diminished and curtailed in the
division of it between the States and the Union, you may
find more of it on one side or more of it on the other ; you may
have rules of construction, prejudices, theories, that will
carry more on the one side or more on the other; but there

LEGAL TENDER CASE 549

is no presumption that the arm of government is shortened
by this division of its authority, unless you add it to the
immunities of the individual. As a matter of direct con
stitutional authority, the mode of suppressing a power of
government, that is, within the ordinary means and appli
ances of government, is by a prohibition to both the Federal
Government and the State governments.

Now, I do not by this carry any conclusion or argument
that principal powers of government go by inference, but
that what are means and appliances in aid of government
enure to the service of that government that has the prin
cipal duty imposed upon it, in the absence of prohibition.
There are several instances of this double prohibition by
which there is a suppression of a certain faculty of govern
ment. Both the Federal Government and the State gov
ernments are prohibited from granting any title of nobility;
both are prohibited from passing any ex post facto law; both
are prohibited from passing a bill of attainder. All these
proceed upon the ground that either of these governments,
within its powers and duties, might have had recourse to
one or the other or all of these subordinate and administra
tive applications of authority: the General Government, in
support of its duties to build up and strengthen the national
polity, might claim to make distinctions of rank in the army
or in the civil service that should have a permanent charac
ter; the States, within their dominion, might claim the same
as a subordinate, ancillary administrative means. So
with ex post facto laws; and so with bills of attainder — each
passing bills of attainder within the sphere of treason per
petrated against either government. There you have a
suppression of certain powers of government which are not
left in our system at all, just as you have an enlargement of
the area of personal immunities by provisions affirmatively
in the nature of a bill of rights. But our Constitution con
tains one instance of this double prohibition of what must

550 SPEECHES OP WILLIAM MAXWELL EVARTS

be regarded, in its nature, as a subordinate means. I refer
to the prohibition of exacting revenues from exports. Now,
what is more in the nature of a subordinate means than that?
Apparently that should be at the service of every simple
government. Under what motive was that prohibition
made? It was made in view of the difficulties of determin
ing whether the States or the National Government should
control duties on exports. The power was denied to both
as a source of revenue, with this limitation, that a State may
lay a duty on exports in support of its inspection laws; but
the revenue arising therefrom must go into the Treasury
of the United States. Practically, revenue on exports is
excluded from the powers of both governments, not by
inference, but by express prohibition. This was fully under
stood during the late Civil War when the propriety and
necessity of looking to exports for some measure of revenue,
was considered by Congress, and the express prohibition in
the Constitution was regarded, as every express prohibition
should be, as final on the subject.

The Tenth Amendment of the Constitution seems to
me, hi its just construction, to support this implication from
the denial of a power to the State governments, that it is
in its nature subordinate to administration under the general
power of the Federal Government, that it is with the Gen
eral Government; for the language of that amendment was
intended to be, and justly, a barrier against implications of
affirmative powers. This is the provision: "The powers
not delegated to the United States by the Constitution, nor
prohibited by it to the States are reserved to the States
respectively, or to the people."

Of course, then, anything that is prohibited to the States,
you cannot treat as reserved to the States ; and as to whether
it is reserved to the people, that primarily is a question be
tween the States and their people. If it is wholly withheld
from the States, it cannot be a question whether the people
should have it as between them and their State government.

LEGAL TENDER CASE 551

Never overlooking the principle that this is a Govern
ment of affirmative powers to be found in the Constitution,
I submit that, under the language of this Tenth Amend
ment, a means prohibited to the State is presumptively
within the authority of the Federal Government or within
the limits of its principal powers. If, then, whatever regu
lation of legal tender is possible in our Government, is with
the General Government, there are but three ways in which
it can be disposed of: either the Constitution has fixed it,
which it might have done; it might have declared in so many
words, that legal tender in payment of debts, as the supreme
law of the land, is and shall be current coin authorized by
the General Government; or, there is no legal control what
ever; or, Congress has some authority in the premises, and
whether that measure of authority be large or small, all of it
resides in the General Government.

Now, it is very plain, as I have heretofore stated, that
there is nothing in the Constitution, in terms, fixing the
legal tender of the country. If the power to create money
and fix its value carries any power of legislation, — if the
other enumerated powers of Congress carry any power of
legislation, then, as within, anii in aid of, those powers,
Congress has it. We come, then, down to the question,
whether under the description of legal and necessary legis
lation in support of and in execution of the powers of this
Government, Congress has that power.

Now, I do not hold that these notes of the Government are
coined money, or that their issue or authority depends at all
upon the fact that they are coined money. They are
promises of the Government; they are debts of the Govern
ment. They are expressed in dollars as the measure of the
Government's debt and promise, and those dollars thus
named as the measure of the Government's debt and prom
ise, are the dollars of the Federal Constitution. A promise
is not performance, and the dollar is yet to appear if these

552 SPEECHES OF WILLIAM MAXWELL EVARTS

promises are redeemed in performance of the promise — and
the dollar is a coined dollar of the United States or of foreign
countries accepted by the United States legislation. "The
United States will pay the bearer ten dollars. Payable at
the Treasury of the United States in New York." And
"This note is a legal tender for all debts, public and private,
except duties on imports and interest on the public debt, and
is receivable in payment of all loans made to the United
States."

As I have said, the issue of that promise is constitutional;
it is within the authority of Congress to provide for its per
formance; it is within the authority of Congress, provided
no excess of power is resorted to for that purpose, to secure
its acceptance and currency with the people as a promise of
the Government to pay dollars. There is this further pro
vision, covered by the legislative promise in the section under
which this currency is issued, that at any time this form of
the public debt may be converted in sums of fifty dollars or
multiples of fifty into another form of the public debt — a
postponed loan — the interest of which is payable in coin and
the principal in coin. These are the provisions, and all, I
submit, are constitutional.

The Government has proceeded to say further and inter
mediate to the issue of this form of public debt and its pres
entation by the holder for redemption in money or for con
version into the postponed loan of the Government, it shall
pass from hand to hand among the people of this country as
a satisfaction of their private debts. This is the feature to
be considered. Now, what are some of the principal pur
poses of money? It is a measure of value and also a medium
of exchange. As a measure of value money may rest in
account; there may be money of account, which has no coin
to represent it, but which serves the purpose of a measure of
value in computation ; so that a bale of cotton or a cask of
wine which you cannot in their material bulk make a common

LEGAL TENDER CASE 553

measure of value, yet being worth so many pounds and shill
ings may be deemed sufficient in account. As a medium of
exchange, which is the purchasing power of money, the great
science of money is that it should retain this purchasing
power in the confidence of the community, and provided
that permanent confidence at a fixed standard can be se
cured in favor of any money, the less the intrinsic value of
wealth that is put into money, the better for all. The gold
money, the silver coin, is, as Mr. Mill, in his Political Econ
omy, says, but a form of tickets or orders by which the holder
is authorized to obtain whatever he needs, and the confi
dence that these tickets and orders will, under all circum
stances, obtain what he needs, is the value of the contrivance
of money as adopted by civilized nations; and, as he adds,
aside from this, and he is no partisan of paper money, he
abhors inconvertible paper money as much as any one can
do, — as a contrivance merely to adjust these relations,
money, he says, is the most insignificant thing in the world.
The intrinsic value of metallic money serves only this
purpose: there is this self-acting check against its excessive
use, that no more of it can be issued than there is, and none
of it can be got except by labor, which makes it a standard
of value. It is that self-acting check which makes the
metallic money the basis of circulation, to which the whole
currency of every safe and just government should be an
chored. But, as we all know, political science has shown
that, because you must have your currency anchored to this
natural and self-limited measure of value and medium of
exchange, it does not follow that you must limit the service
of exchange and of measure of value to that money, and have
only the transactions to which the specie of the country may
be applied bodily and by transportation in every transaction.
Whenever you can give to forms of public or private credit
the true hope and guarantee that they shall bring all the
money that they purport to represent, then you have en-

554 SPEECHES OF WILLIAM MAXWELL EVARTS

larged the means and stimulated the activities of commerce
and of trade without having shaken the basis of specie as a
measure and as a medium. The distinction, therefore, be
tween currency and money is perfectly understood; bills of
exchange being the first form of currency distinct from
money, then promissory notes, then public emissions of
promises of Government, then private bank notes — all being
different forms of credit or confidence that the money they
promise shall be forthcoming whenever the holder needs it.
So that the expression of Mr. Mill is clear, when he says that
these different forms of credit either in the less manageable
form of book debts, or bills of exchange or promissory notes,
are really currency, and in the form of bank notes and of
public notes of exchequer, are a form of credit which, as it
seems, he very aptly describes as coined credit, while the
other forms of credit are, so to speak, credit in the ingot or
mass, and very aptly describe paper money in its relation
both to credit or promise and to value or intrinsic faculty of
purchasing.

Now, every nation coming into the modern system of civili
zation at least and having currency by necessity for the free
dom of the movements of its people not limited to gold and
silver coinage, but to credit mixed with it in all the manifold
forms that ingenuity and the science of political economy has
invented and approved, has to deal with that whole subject
of money per se, and credit that enters into currency in aid of,
pari passu with, any expansion of the money arrangements of
the country. It has to deal with it in peace and in war; it
has to deal with it under circumstances of the greatest di
versity. It has to deal with it according to the powers of
government and its wisdom, under stress financial and na
tional.

When government, therefore is charged with these duties
and responsibilities, the question is, of any attempted exer
cise of authority, whether it be within its power and be serv-

LEGAL TENDER CASE 555

iceable to its duty or not, and that question is to be answered
according to the nature of the exercise, the motive, the serv
ice intended, and the circumstances under which it is situ
ated, by the Government. Let me now call the attention of
the Court for a moment to the difference in operation of an
express power and of an implied power. An express power
whenever accorded to the Federal Government can be
exercised upon its own motives and with no other reason or
object of duty, except that it is within the express power.
Take the subject of emitting bills of credit which was dis
cussed in the Constitutional Convention as to whether it
should be assigned as a substantive, enumerated power to the
Government of the United States, and was omitted after full
consideration from that list. If it had been inserted as an
express and substantive power, then the issue of bills of
credit for any purpose would have been within the power of
the Government, that is so far as their emission went. Their
motive might have been to ease the finances of the country
under any circumstances, and in any exercise of any power or
duty of the Federal Government. It was excluded. Take
the power of chartering corporations. That was postponed
as a substantive power by Mr. Pinckney and again by Mr.
Madison, with certain limitations. This was excluded as a
substantive power. If it had been included in the Consti
tution then Congress could have established corporations in
its discretion. If that had been inserted as a substantive
power, then Congress would have had power upon its own
responsibility of reason and motive, without any judicial
amenability whatever, to establish corporations of any
diversity and on any subject. That was excluded.

How is it, now, about this legal tender question, which is
specially under consideration? These notes, if not made
legal tender for private debts, yet are an emission of bills of
credit within the meaning of the Constitution of the United
States which is prohibited to the States and which is not

556 SPEECHES OF WILLIAM MAXWELL EVARTS

expressly conferred on the Federal Government. The two
cases of Craig vs. the State of Missouri and Brisco vs. The
Bank of Kentucky, in 4 Peters & 11 Peters, discussions
familiar to the Court, show that emissions of public debts
are bills of credit and would be the very things covered by
the clause in the Constitution, "emit bills of credit."

If a State does it, they are invalid, and if the United States
does it, they may be valid although no express power is given
them, but, on the contrary, an express power was withheld
from them in the Constitution, after debate. Here you have
all the grounds, all the arguments, which bear upon the
matter of legal tender, on this subject. The incorporation
of the Bank of the United States was a subject which came
up for discussion, and with it these facts in constitutional
history, that there is no express power to establish a bank,
and that when it was proposed to the convention to confer
an express power of incorporation, it was withheld. What
is the reasoning of the Court? As an express or substantive
power, justifiable upon its own motives and for its own sake,
it has no place in the Constitution of the United States.
You must bring it within the terms of means or of legislation
necessary and proper, within the scope of some express power
and upon its reason and within its motives, or it does not
exist. And the incorporation of the Bank of the United
States was held to be constitutional because under the mo
tives and upon the reason and within the limits as means to
ends, adapted and conducive and appropriate, which are
within the service of enumerated powers at the disposal of
the Government. And so bills of credit, if they came up
nakedly without this question of legal tender and private
debt, would stand upon the same reasoning and have never
been questioned as being unconstitutional.

The difference, therefore, between express and implied
power, is not an unsubstantial difference, although the very
thing that might have been raised to the dignity of sub-

LEGAL TENDER CASE 557

stantive powers upon its own motives, has been withheld,
and the same thing is introduced into legislation as means to
ends. The difference, I repeat, is essential and important,
and no true liberty of means towards ends, of appliances in
aid of powers, ever can enlarge the powers of the Constitu
tion of the United States; for the judicial and political theory
of these means and appliances, as being lawful, is that they
are included in the service and in the aid of the substantive
powers.

Now, the authority to make coined money a legal tender
by law is included within the express power of regulating the
value of money; and cannot and has not been disputed. It
is for me to satisfy your Honors, if such be the true construc
tion of the Constitution, that the making of these emitted
bills of credit of the United States a legal tender in trans
actions between private parties, is within the authority of
Congress, as a means necessary and proper, appropriate and
adapted, to the discharge of the duties thrown upon the
Government of the United States, by the Constitution and
in exercise of the powers accorded to it; knowing as we do,
that unless it resides in the Government of the United States,
it does not reside in the power of the States, and that the
political and financial situation in which this recourse, always
possessed by governments, though denied to ours, is left
without remedy and without succor.

Now, I believe that the framers of the Constitution may
be well understood to have formed their Government for the
actual affairs of men and the vicissitudes of national fate.
They did not expect to change the nature of man or to con
trol events, and they did not frame a government to escape
them, but to meet them. They were familiar with the con
ditions of peace and war by the most recent experience, and
they knew, not as matter of theory, but as matter of fact, the
diversity between the burdens and responsibilities and duties
which belong to one state of the nation and the other. War

558 SPEECHES OF WILLIAM MAXWELL EVARTS

is the state of a nation which prosecutes its right by force;
peace is the state of a nation in which its law prevails by its
authority. It is not saying too much, that, without impos
ing any qualities upon these two conditions of peace and war,
except what by inexorable necessity is demanded for war, as
in time of peace all the force of the country is but the aid and
minister of its law, so in time of war all the law of a country
is but the aid and minister of its force; it is the situation of
the nation when its force must be displayed and exercised
and marshaled and directed only under the conditions that
it be adequate, proper, and seasonable, to maintain the
public safety.

I give to the law of the country no extension beyond what
its fundamental charter gives it; but, within its power, the
occasions and duties of a state of war are that the whole
strength of the nation shall be marshaled by its legislation
in the most effective and useful way to preserve the national
existence and to attain peace. The laws by which private
conduct is governed when the person is safe and life secure,
are one thing; the laws of self-preservation in the individual
are another; and one law yields to another in morality
according to the situation. "Thou shalt not kill" is the law
of peace and safety to the individual. In preservation of
life, you may kill, is the doctrine and sanction of conduct
under those circumstances. Our life is to be preserved,
that it may be regulated by morality, and the morality of its
preservation is, that whatever means in strength, in wisdom,
are at our service, may be exercised according to the stress of
the emergency in which we are placed.

I shall give these principles no extravagant operation. I
agree that the final law of this Government, found in the
Constitution, is the curb and limit of the political authority
just as much as the strength which nature has given to man
is the curb and limit of his efforts in self-preservation. I
only ask that you shall accord to the framers of the Consti-

LEGAL TENDER CASE 559

tution, in the judgment of their work as applied to this
emergency in the national situation, the wisdom and cir
cumspection that belong to them, and that is, that they
deemed a state of war as within the fortunes of the nation
they were founding, and that they were familiar with the
stress of war in its demands upon the strength of the nation,
natural and financial.

Now, in the main design in the Constitution, to carry to
the General Government all that was of common concern,
there is nothing more prominent than this : all that belonged
to a state of war was and should be of common concern; in
peace there was a distribution of administration between the
General Government and the States, but all the exercise of
power and strength in war was adopted by the terms of the
Constitution as being of general concern and not of State
authority, and was comprehended in that larger reason
which carried over whatever was general, in the power of the
Federal Government.

They had in their minds, also, under the freshest ex
perience, as among the consequences of impressions that
war produces in a nation, that the whole system of money,
currency and credit, public and private, legal tenders, con
tracts and their enforcement, and the compulsory payment
of debts, are subject to the shock of war as much as any
other of the interests and operations of a nation, and that the
pressure upon the powers and duties of the Government in
the event of war, in respect to all these subjects, was en
tirely different from what it was in peace. They were not
insensible to that fact; they had experienced that very
situation in the conduct of the Revolutionary War, that
while the Federal Government was charged under the con
federation with the operations of war and their control, it
had to look to the States for the execution of power to aid it.
Among the very points, therefore, bearing upon the exercise
of the authority of war, this question of legal tender was in

560 SPEECHES OF WILLIAM MAXWELL EVARTS

their experience, and in this precise form; that while they
had authority to pledge the public credit by the emission of
the public securities, they had not power to make them a
legal tender, and they had found that that was a necessary
reinforcement of their currency and their value; that is, in
their judgment, it was. Whether they judged wisely or not,
is a political question. In their judgment, they did. They
were obliged to ask the States, just as they were, to con
tribute by their legislation this aid and help to the credit of
the country by their passing laws in aid of the emissions of
the confederation, being legal tender, and the States did it,
putting it upon the ground, as in the legislation referred to
by Mr. Potter, of upholding by penal sanctions the currency
of the money of the confederation, proscribing as an enemy
to the country any man, who should say or act in derogation
of this faculty of the money, the emissions of the confedera
tion debt, being a legal tender. This then was the experience
of the framers of the Constitution. That is, of all other
nations, so of this, as in the past so in the future, the exigen
cies of war which demand the marshaling of the whole physi
cal strength and all the financial resources of the country in
aid of the country struggling against foreign or domestic
foes, there must be a resort to the means of legal tender as
one of the resources of government; and they knew that in
the confederacy they had to ask the State- for it, as the
States had it, and they knew what they were going to do on
the subject of leaving that authority with the States.

Now, too, it is not to be disguised that the temptations
and mischiefs and dangers and disgraces of an inconvertible
paper currency were equally pressed upon the attention of
the framers of the Constitution. The actual condition of
the country in the collapse and in the delirium, if you please,
that had followed the exhausting war in which the liberties
of the people had been maintained, and all the evils of the
public and private credit of the country that the actual

LEGAL TENDER CASE 561

situation of affairs exhibited, were in their minds also. They
knew that this potent service of paper money in a need, was
in danger of being a master too strong to be thrown off, sud
denly at least, when the need had reached its limit.

Now, I say, the most opulent nation, and ours was not an
opulent nation when the Constitution was formed, that the
most opulent nations had been obliged under the stress of
war to resort to this invigoration of the coined credit of the
country to aid the purchasing power of its public debt. This
was familiar to them also, and they knew after the war had
passed, and this means had been resorted to, that in the
experience of other nations as well as their own, the danger
of expanding it as a power, or the exercise of the power
beyond that need, was a thing to be considered, and care
fully and firmly dealt with.

I submit to the Court, therefore, that the true construc
tion of the arrangement of these conflicting interests and
arguments of the Federal Constitution, is plain, and further
that it was wise, though, whether it be wise or not, if it be
plain, the judicial duty is satisfied by enforcing it. It is,
that the States of this country, who were relieved by the new
Constitution from all the burdens and responsibilities of the
legislation and management of war, should have no author
ity that could make legal tender out of anything but intrinsic
value. Whatever stress in time of peace may go unprovided
for, for disasters may happen, earthquakes may happen, great
destruction by pestilence, by flood, by fire, may disorder the
natural condition of the people almost as much as war, — but
the feature of peace was not of that kind or nature, and as
the States had none of the powers and responsibilities of legis-
ation and management for a state of war, this faculty
should be suppressed in them, although some particular un
foreseen stress might have shown that a more circumspect
and more farsighted civil prudence would have given a
faculty of meeting this strange emergency. But practically

562 SPEECHES OF WILLIAM MAXWELL EVARTS

they dealt with it in this manner; that the States have no
power, as we all know, to liberate the legal tender and con
form it to any exigencies ; but that the General Government,
whose money and credit — that is all that it is — are to fur
nish all the financial sinews of every possible war, should
have at its disposal in this service, in this necessity and within
this duty, this financial expedient of making the public
securities a legal tender; else, what is not to be tolerated in
any form of society, an inexorable need and a peremptory
duty should miss a commensurate power. I do not care
what structure it is, mechanical or civil, if you send it forth
to meet an inexorable need and under a peremptory duty,
you must furnish the necessary power, and in so far as you fail
to do this, your structure is imperfect and falls under the law
of its own creation as inadequate to its own obligations and
necessities. Such structures may be deliberately made,
such structures, in the imperfection of human affairs, are
made. A ship may be sent across the ocean for aught I
know, under a deliberate determination that, if the wind
blows thirty knots an hour, it shall go to the bottom of its
own structure. But when I have a list of the specifications
of the ship's structure and equipment, I want to have
pointed out to me the limit that made it necessary she should
be a thirty knots-an-hour gale ship, and not one to meet a sea
on which she was launched where the wind blows swifter than
that. So with a government that is launched to keep the
seas perpetually, over every commotion of the ocean of life,
and through every storm of the future. I wish when the
perils are known and measured and foreseen, to have express
evidence that it should yield rather than resort to some
energy to save it. If it be so, then let it founder according
to the predestined law of its creation.

This power of legal tender, necessary for emergencies,
pernicious as a ready resource, shall not be placed among the
enumerated powers of the Constitution, because it would

LEGAL TENDER CASE 563

either be at the service of the Government as a financial
expedient on its own motive and upon any representation
that it was useful in the service of the community — a posi
tion which Mr. Madison came very near taking in his mes
sage to Congress when he recommended an emission of bills
of credit without the legal tender clause, when the credit of
the country no longer required it, but as a convenience, as a
medium of exchange. That illustrates the difference. I
suppose the emission of bills of credit, if an enumerated
power in the Constitution, would have been within the
faculties of the General Government upon the motive of
providing a currency merely without regard to the needs of
the Government or by aiding it by such an emission.

I have no doubt, Congress never doubted, that if within
the implied powers of government, it reposes there as a
means at its disposal in aid of the credit of the country, upon
its authority to lay taxes, to raise revenue, and to borrow
money, and to administer the finances of the country. So,
too, this power of resort to legal tender, as a servant of
special duties and of authorities of the General Government,
I place in the implied fitness and necessity of it as a means
under emergencies of supporting the power of the Govern
ment in performing its duties, within its recognized obliga
tion and in aid of its recognized authority. Such, I think, is
the adjustment in the Constitution of these conflicting
interests and arguments, and I am at a loss to perceive why
anything in the history of this country should show, either
in the general course of the Government or in this last
emergency, when its safety required all its power, any reason
to question the wisdom or forecast and prudence of the
framers of the Constitution, if this be its true construction.
Under it, certainly, we have had eighty years of government,
carrying us through peace with all its vicissitudes and through
the pressure of foreign war without resorting to this as a
means in aid of any necessity. It is only when we come to a

564 SPEECHES OF WILLIAM MAXWELL EVARTS

civil war, the vastness of whose proportion and the intensity
of whose energy, have crowded within five years, expendi
tures from this Government equal to the revenues of fifty
years of peace, that this exceptional and excessive expedient
spoken of in the ordinary affairs of the nation, has been
resorted to.

Now, it is idle to say, as is often said in the course of the
argument, that our experience of eighty years of peace, and
of wars somewhat severe, certainly, upon our financial
abilities — the War of 1812 and the War with Mexico, for
instance — have been gone through without a resort to this
expedient, and that this should prove a reason and be a
guide in the construction of the Constitution, that no such
expedient can be resorted to. I submit that it is only when
some adequate and equal comparison that shows a nation
saved through a stress and pressure equal to that through
which we have passed in the last five years, without a resort
to this expedient, is presented to us, that, in the experience of
human affairs, we find any justification for thinking that the
perils in which this country was placed could have been
passed through without this resort. No simple government
that the world ever saw, as far as my knowledge or estimate
of history goes, has ever been able to subdue a revolt cover
ing so vast a territory and so large a population of equal
character and condition with the loyal population who came
to the aid of the Government, as ours has done. I be
lieve that no simple government would be equal to it, and
that it is to the Federal distribution of authority that made
loyal States cope with disloyal States through the common
agency of the Federal Government to which the loyal State
adhered, that our success is due.

I am, in the profoundest and extreme doctrine, an admirer
of the State constitutions, their vigor, energy and protection.
But you might as well say that the sick man argued wisely
who recounted to his physician that he passed through the

LEGAL TENDER CASE 565

diseases of childhood and had never taken calomel as a reason
under the congestive fever of the marshes, why he should sub
mit to no other stronger doses than had saved him from the
mumps and chickenpox. Necessities impose their own meas
ure: diseases their own remedy; and though you may be
misguided and though the remedy may be sometimes worse
than the disease, this false reasoning of refusing to make the
measure conform to the actual situation before you and sub
mitting to the wisdom that must be the master of the dis
cretion and the remedy — such reasoning I never can under
stand. .

We must now understand, if the Court please, how it is and
why it is, that the Federal Government, being charged, as I
have said, with all the duty and all the responsibility of the
conduct of the nation in time of war, all such things being
absolutely denied to the States as well as affirmatively de
volved upon the Federal Government, — how it is that this
situation of the nation may justify, may necessitate, within
a national and legal estimate of the adaptation and appro
priateness of means to ends, the particular measure which was
adopted by our Government in the year 1862. I will but
call attention to the powers I have collected in the 8th propo
sition of my brief, as making up the sum of powers as well as
those distributively accorded, I suppose, to the support of
this exercise of legislative authority. The Government then
has power "To lay and collect taxes, duties, imposts, and
excises, to pay the debts and provide for the common defence
and general welfare of the United States:" "To borrow
money on the credit of the United States"; "To regulate
commerce with foreign nations and among the several
States"; "To coin money, regulate the value thereof, and of
foreign coin"; "To declare war"; "To raise and support
armies"; "To provide and maintain a navy"; "To pro
vide for calling forth the militia to execute the laws of the
Union, suppress insurrections, and repel invasions"; "To

566 SPEECHES OF WILLIAM MAXWELL EVARTS

provide for organizing, arming, and disciplining the militia
and for governing such part of them as may be employed in
the service of the United States"; To guarantee republican
governments to the States and protect them against invasion
and domestic violence.

I will not draw attention to the inhibitions upon the
States to engage in war or keep the means of war. A war as
between themselves was, of course, denied to them in the
very nature of the institution of a common government; a
war against foreign nations was denied to them as belonging
to the General Government to regulate all the relations and
to determine upon the condition of peace and war, ad extra.
Here, then, you have collected in this mass of powers all the
duties, all the authorities, all the responsibilities both in re
gard to military operations and array, and to financial man
agement, that any nation ever had.

I do not now discuss the distribution between executive and
legislative power in the Government of the United States. I
say that, as between the General Government and the States,
and as between the General Government and foreign nations,
all the powers, all the duties, all the obligations, that any
nation ever had or could have, are deposited with the General
Government. Again, by an express provision in the Con
stitution as well as by necessary intendment, all the legisla
tion that is necessary and appropriate to the performance of
those duties, the exercise of those powers, the discharge of
those responsibilities, and the crowning end of all, the safety
of the nation, should belong and does belong to the General
Government. So far we must all agree.

Now, the judicial criterion of the appropriateness and the
adaptation of means or of legislation to ends, and in support
of the powers and duties of the Government I need not en
large upon. It is not a political criterion; it is not a criterion
of wisdom or distinction. It is but a judicial criterion — that
so long as we treat our Constitution as a Constitution of

LEGAL TENDER CASE 567

limited authority, subject to judicial interpretation and to
judicial curb of all violations of it, it must be guarded and
must be bravely and firmly administered by this Court;
but not beyond the judicial criterion as laid down by the
celebrated Chief Justice who framed so much of the opera
tive power of our Constitution in his elucidation of its prin
ciples and wisdom, and of its methods. This rule acceptable
to all for its intrinsic and perfect reason, has been established :
"The sound construction of the Constitution must allow to
the national legislature that discretion with respect to the
means by which the powers it confers are to be carried into
execution, which will enable that body to perform the high
duties assigned to it in the manner most beneficial to the
people."

Let us look at that rule, as it contemplates a state of war,
the duty of the General Government in time of war, and the
powers assigned to it in discharge of those duties. "There
must be the means which will enable Congress to perform
the high duties assigned to it in the manner most beneficial
to the people"; not that it may use such means as barely to
accomplish the object, but to use them in a manner, to be
most beneficial to the people. Again, "Let the end be legiti
mate, let it be within the scope of the Constitution and all
the means which are appropriate, which are plainly adapted
to the end; which are not prohibited, but consist with the
letter and spirit of the Constitution, are constitutional."
Under that the Bank of the United States was sustained
in time of peace; under that the embargo was sustained in
time of war. Under that in the case of the United States vs.
Fisher, in 2 Cranch, the duty of the General Government to
pay its debts, was held to sanction legislation, that what was
owed to the Government should have priority in payment
over other creditors in cases of insolvency. Look at that for
a moment. The duty of the Government is to pay the debts
of the Union. It must, then, have the means of raising

568 SPEECHES OF WILLIAM MAXWELL EVARTS

revenue for that purpose; it must have the power to buy, as
in that case it did, a bill of exchange for the transmission of
funds, and when the debtor on the bill of exchange failed, it
had a right to say that the Government of the United States
should be paid out of his assests before any other creditor
was paid. That is the power over obligations which the
Government has in collection of its debts, from the fact that,
having occasion and duty to pay the debts of the Govern
ment it needs financial expedients and methods, as bills of
exchange and other forms of contingent liability. It, there
fore, shall have the power to assert its right over other cred
itors, against all legislation of the States governing these
general heads of private rights.

Looking at the largeness and appropriateness of adapta
tion covered by that decision — appropriateness might be
narrowed down to raising revenue to pay the debts, and
appropriateness of adaptation might be held not to require
anything more than the money in the Treasury and having
it transmitted by messengers. But no; all the ordinary
expedients by which this duty is to be performed of paying
debts, and so of deriving the means to pay debts, admits of
such general guaranteeing legislation of safety over the
Government's funds, as, in the case of failure of a debtor,
shall place the Government's claim on a different footing
from that of the States themselves and of their citizens.

Now, who shall say that this making of the Government's
promises a legal tender in the temporary services of the
finance of the country, is not an appropriate means to in
vigorate the resources of the country in time of war? How
do we judge of appropriateness in the affairs of private life,
except by the conduct of men in similar situations? How
do we judge of the appropriateness of a public contrivance
in aid of the public finances under the immediate pressure of
the necessities of war except by the conduct of other nations
under similar stress? I do not argue for a power because

LEGAL TENDER CASE 569

other nations have done it. I only argue that if this nation
has appropriate and adapted means, we can determine by
the experience and conduct of other nations under similar
political and national conditions, what appropriate means
are. Every nation under the modern system of society, for
reasons which I shall point out briefly, but I think, dis
tinctly, always has found and always will find it, in the cul
mination of terror and of danger that war brings to all the
relations of any society involved in it, necessary to be master
of the question of legal tender in private transactions, as a
part of the financial system of the nation, or else legal tender
in private transactions will be the master of the fate and
financial resources of the Government. You must have
authority somewhere; and where there is an inexorable law
that the Government cannot break, that inexorable law in
the private interest that controls it, is the master of the
Government. Its wisdom, as I have said, is not to be con
sidered judicially. Wisdom after an event is always wiser
than wisdom during it; for it has more experience. But
wisdom of action in the presence of events cannot be post
poned to have the light of the upshot of it, without the ex
pedient being resorted to, to guide you whether it should be
resorted to. Wisdom does not live wholly, any more than
it will die wholly, with the judiciary. Legal authority in
construction on judicial criteria, as to the conduct of the
Government belongs to the judiciary; but to judge over the
action of government on political criteria of wisdom or rash
ness, of skill or clumsiness, does not belong to the courts.
And if the whole experience of human affairs shows that
this method has been so appropriate, that it has never failed
to be resorted to when the pressure was up to the point
where it came in, its appropriateness is determined and its
wisdom is determined and its wisdom is with the legislature
that is to act.

How is it that a Government situated as ours was on the

570 SPEECHES OF WILLIAM MAXWELL EVARTS

25th of February, 1862, in reference to its duties to lay and
collect taxes, its duties to sustain the public credit, its duties
to carry on the powers of war, its duties to preserve peace and
strength in the loyal portions of the country, and its duty to
account to this people for the trust confided to it and to it
alone, impossible of execution by any other public authority,
impossible of execution by the people in their primary ca
pacity without revolution and destruction — how is it that
the sober, just, rational, judicial exploration of these powers
and duties will find occasion for the legislature to be of opin
ion that this was an appropriate resort? The argument, on
our side is entitled in determining this judicial criterion to the
political postulate, that the Government of the United
States could not have been sustained in the judgment of the
authority charged with its maintenance without a resort to
this financial expedient which had been at the service of
other governments and was familiar in our own past history.
Otherwise you get into a discussion of the opportuneness or
rashness or wisdom or circumspection on the part of Con
gress, never possible to become judicial questions. You must
have the situation in which without this resort, the national
legislature thought the Government would fall; with it, that
it would be saved, and the experience we have is, that it was
resorted to and that the country was saved. What would
have happened by greater abstinence from this power, can
only be matter of debate. Safety has been secured. The
means aiding in that must now be deemed appropriate, unless
plainly to be shown to have been excessive, extravagant and
perverse.

At this time we had no internal taxes. On the 25th of
February, 1862, we had no internal revenue provided for even
for future collection, the first act having been passed July 1,
1862. At this period we had no system of paper currency at
the service of and controlled by Federal legislation; for the
national bank system was not brought into existence even

LEGAL TENDER CASE 571

prospectively until an act just one year later, February 25,
1863, and the war was pressed by the rebellion with no
observance of our financial system or our imperfect legisla
tion. They did not wait to press the columns of their power
upon us until they saw that we had provided legislation to
meet it. They did not wait to attempt the exhaustion of our
financial resources and of financial patience and subordina
tion of our people, until we had provided an apparatus of
taxation and received the inflowing treasures, or an appara
tus of paper money controlled by the Federal Government
and received its aid in support of the volume of currency to
strengthen the Government and relieve the people. They
took us as we were, without internal revenue and without
paper money controlled by the Federal Government, and the
question then was, How shall this Government possess itself
by taxation from the people either in the form of immediate
exaction or of loan? For a public loan is nothing but a dis
count of taxation; it is to support by a future taxation the
confidence of capitalists of the country and of the world
which secure the loan — how shall the Government furnish
itself by taxation with means to carry on the war? Nay,
how shall it furnish the people, willing, loyal, faithful, able
and energetic as they, with the medium, with the faculty of
paying the taxes of the Government in the immense volume
that they need to be precipitately poured into the treasury?
How, either in the form of the exacted tax or in the form of
the anticipated tax by loan on public credit, shall this people
have the medium to aid their Government? The States can
do nothing for it. If the inexorable law of private right can
demand the maintenance of the legal tender between man
and man in gold and silver, while the Government has no
power to pay gold or silver in its public transactions, and no
power to exact gold and silver from the public debtor, and
there be collision between this private power of compulsory
exaction of debts interfering with the operations of the

572 SPEECHES OF WILLIAM MAXWELL EVARTS

Government in laying taxes, in borrowing money, in paying
troops, then I submit there is presented nothing but sheer
conflict between the power of the Government to accommo
date this measure of private law to its necessity, and the
power of the private creditor to exact the measure of his
authority in defeat and prostration of the public finance
and of the public safety. I know that fallacy in reasoning
too well, which is satisfied with looking at the mischief of any
course of procedure and which does not look at the force and
effect of the evils which are to attend the opposite course of
action or inaction.

Now, what are you going to do with the public finances of
the country that require in some sort or shape, effectively,
the means of expenditure under the exigencies imposed by a
public enemy, and not measured by wisdom or duty — ex
penditures, as I have said, in five years, equal to the volume
of our revenue for fifty years of peace at the highest measure
they have reached? You have got to get that amount by
taxation. Your people have got to have the means after a
fashion at least, of paying it, and you have got to have
it consistently with the maintenance as far as may be, of the
business and the habits of the commercial people, and of the
natural circulation of the resources of the country in trade
and in industry, which furnish after all, the final measure
and the ultimate basis of the public credit and of the public
strength.

It is asked in some of the judicial opinions and is advanced
in the way of argument, why resort to this method outside of
direct agency and bearing upon private interests and obliga
tions so injuriously, when the Government had power to
exact the last dollar of the money of the country by taxa
tion? Well, agreed. The Government of the country had
a right to lay a tax of one hundred per cent, payable in ten
days, upon all the property within its limits. An excellent
faculty! And when it had been done, where would have

LEGAL TENDER CASE 573

been the property of the country? In the hands of the citi
zens still or in the public treasury? It has the power of con
scription, of taking all the physical strength suitable for the
military service of the country into warlike array without
paying a dollar. I do not think we would venture to carry
it to the extent of not feeding the soldiers, but we might re
quire them to feed themselves. And what .does all that
amount to? It is a faculty and a power, absurd and impos
sible. So, too, they say you may use your money to pay
your debts. You may pay your troops in the field, a million
of men, with that money, and paying them they may send
it to their wives and families at home to pay the butcher and
the baker; and the butcher and baker may cast their wives
and families into jail because they .offer them only the money
that the Government has paid the soldiers, and not the gold
and silver that has fled from the country in the presence and
dangers of war, either for safety abroad, or hoarded in the
secret coffer of the timid and the sordid. That is what may
be done. And how long would it be before the soldiers, told
the money is good enough for them, and yet cannot buy
bread and meat with it for their families, would say, if good
enough for us and not for the butcher and baker at Lome,
we will go home and send the butcher and baker here to take
it and we will have better money? They say it, not in mu
tiny, not in violence, but in the natural protest that no
government can disregard.

If you admit that the basis of affairs in this country can
not be carried on in the transactions of public taxation and
of public payments upon the measure of gold and silver, by
reason of your needing to anticipate the resources of your
Government and making debt at once and its securities,
money of the country — if you admit that, then you must
admit that the private relations of life, which furnish after
all, the basis and the gauge upon which the public duties can
be performed by the taxpayers, and the public obligations of

574 SPEECHES OF WILLIAM MAXWELL EVARTS

the Government ought to be measured, and must be, upon
the same standard.

I have been at a loss to find in the judicial arguments of
the courts below, or in those made in the briefs here, or in
the oral arguments, however interesting, valuable and
thorough, they have been, presented to your Honors, any
substitute for this financial expedient, which instead of
exacting taxes in solido for the whole amount at once, in
stead of exacting them in specie, exacted them but furnishing
at the same time a promise of the Government, that whoever
would supply them should be repaid, and thus turned into a
loan or anticipation of taxes instead of absolute present
exaction. Was specie payment continued by moneyed
corporations in the United States? No. Could it be? No.
A nation brought up with metallic and paper currency mixed,
and placed under circumstances when the volume of its finan
cial transactions becomes fabulous compared with all past
operations of the Government, which was furnished with no
system of paper money and having no immediate possible
mode of establishing it except on the public credit, under
takes to distribute the pressure over the future industry of
the country, by making it a loan instead of an exaction of
present taxes, and to distribute it in the burden and adjust
ment of society to it, by making it the measure of dealing
between the just and the unjust, the loyal and the disloyal,
the brave and honest friends of government and the timid
and cowardly deserters of duty, by saying "y°u shall bear
this now as a loan, and it shall serve but as an arrangement of
a great clearing house for all the finances of this country,
private and public, until this war is over." We promise to
pay the dollars that have intrinsic value, and the public
faith is pledged for them, and when the public resources are
adequate they shall be paid at the will of the holder. They
may be digested and changed into the postponed loan having
interest payable in coin, and future payment in solido at a

LEGAL TENDER CASE 575

period when the Government shall be in possession by taxa
tion, of means. In the meanwhile all this loan thus fur
nished you and taken from you, for that is its double char
acter, the public credit is advanced to the taxpayers that
they may use it in paying taxes; the public loan is exacted
from the people by requiring them to take this money or
nothing — in the meanwhile this shall be a loan to you as a
whole; there shall be no power for one to have an advantage
over the other, but what we under this necessity impose
upon our creditors, what we thus in necessity limit our de
mand for from our debtors, shall be the measure of debt and
credit as between you, and the final settlement shall be made
by the holders with the Treasury of the United States.

Now, the mischiefs and injuries have been held up as if
they were the objects of the legislation of this country.
These are its objects: A government having power to exact
in solido by present tax, all the property of the people, having
power to exact in solido the military strength of the country
without pay, subject only to the physical strength to enforce
these exactions, chooses thus to administer, thus to measure,
thus to moderate its processes. And this is said to be a
trifling with private rights because, in the jostling of this
settlement, it happens that a man gets less for his oats, or
less for his farm, or less for his gold, than he would otherwise
get. This disturbance of contracts in this administrative,
conservative, preservative form, the best possible under the
circumstances, is decried and condemned because the Gov
ernment instead did not take the tax payers by the throat
and exact the uttermost farthing. The Government is the
creditor of the people for all that they have and are, in its
hour of danger. The man who goes to fight for his country
pays a debt; the man who yields his treasure to the country
pays a debt; and when the nation forgives this enormous
debt by reason of the infirmity or inability to pay it on the
part of the debtors, unless it have patience with them until

576 SPEECHES OF WILLIAM MAXWELL EVARTS

they can pay it all, and thus deals with them in mercy, is to
be restrained from withholding this debtor, thus forgiven,
from going to his fellow-servant and taking him by the throat
and casting him into prison until, in gold and silver, he shall
pay the uttermost farthing.

I submit that that is the situation of the country; that is
the obligation of the citizens; and yet because, as an inci
dental pressure in the wave of this great financial tide neces
sary to float the ship of state over the breakers, some cock
boat is crushed, it is said the power of the Government was
inadequate to it, and the sacredness of contracts and obliga
tions is thus incidentally interfered with. Why, the Gov
ernment, in this hour of its stress, may separate the bride
groom from the bride at the foot of the altar, thus impairing
the obligation of the sincerest contract of human society. I
may beckon the son from the dying bed of his mother, thus
impairing the highest obligation of nature, and trespassing
upon the commandment of God we promise to obey. But
it cannot say to the butcher and the baker at home, that the
money which it pays to its soldiers in the field shall feed their
families until the war is over.

The truth is that the argument and the invective alike
deal with an incidental evil as if it was the appropriate and
expected end. It mistakes the suffering of the patient under
the surgeon's knife for the quivering anguish of the victim
under the blade of the assassin. It mistakes the knife and
cautery, that are to save, for the fire and sword that are to
destroy, and asks unblushingly if a government founded on
justice can compel a dealer to take less than his contract and
to have it in anything but gold, even if the preservation of
these peaceful and just relations when possible must yield
when they become impossible.

What followed from this measure of the Government?
Taxes were possible to be paid; services and supplies were
possible to be obtained; and the faith of this people in their

LEGAL TENDER CASE 577

Government did give an intrinsic value to the promise to
pay in gold and silve • when the Government should be able
to pay. The people lying ready to meet, anxious to be mar
shaled to meet the terrible array found in this administra
tion of finance, as in the military distribution of strength,
their means of safety; and when they sat imploring at the
gate of our temple of liberty and the Government said,
"Silver and gold have I none, but such as I have, give I
thee," they rose and walked and saved the country under
this benign adjustment of means to ends.

The judicial opinions given in the cases with great force,
with great judgment, with great plenitude, illustrate all
these financial operations. It is enough for me to say the
relation is obvious, the result is natural and useful, and unless
you will point me to a constitution that says in so many
words, "This government shall be preserved only up to the
legal tender point and then it shall fall, for it is better that
gold and silver should be our masters than that our con
stituted liberties should be maintained at the disturbance of
the legal tender," I shall be justified in approving, the finan
cial agent of the Government will be justified in administer
ing, this subjection of the compulsory payment of debts in
private contracts to the compulsory execution in war of the
obligations of Government.

But, if the Court please, if it should be held that this act
was without authority from the Constitution of the United
States, as it stood at the time of the passage of the law, in
this, that that feature of the statute providing for the issue
and funding of the public debt was without authority, I
submit that that defect of law can no longer be urged under
the 14th amendment of the Constitution, for that has rati
fied every act of Congress, according to its fair intent and
meaning, that has executed an issue of the public debt. The
language of that clause of the 14th amendment to which I
advert, states, page 20 of my brief, "The validity of the

578 SPEECHES OF WILLIAM MAXWELL EVARTS

public debt of the United States, authorized by law, including
debts incurred for payment of pensions and bounties for
services in suppressing insurrection or rebellion, shall not be
questioned."

Now, what does that mean? We do not pass constitu
tional amendments to say that laws of Congress that have
been passed conformably to the old Constitution shall not be
questioned, because we should have to pass another amend
ment to say that this amendment shall not be questioned,
and so forth and so forth. We pass it, according to the
force of the terms used, for a questionable measure of law
regarding the public debt, and say it shall not be questioned
hereafter.

The supreme, the deliberate authority of the people, execut
ing their reserved powers, if they had them, over legal tender
or whatever else, looking backward and applying indemnity
to the public agents and approval to the public means, says
that the laws which during the stress of war, have been
passed in aid and support of the public credit, shall not be
questioned; they shall not be questioned in court or places
or arguments or theories. Whatever you find on the law
book of this nation, by its faithful servants deemed at the
time needed and useful in aid of the public credit, shall in
here as an unquestionable feature in the form and effect of its
securities, according to the tenor of the law. No narrow
scope, no less efficient authority, will answer as the notice
for which this intervention of the supreme will of the Amer
ican people was asked and was rendered. I am sure I do not
know, as matter of fact, in judicial or practical affairs, that
there is one single point in which the debt of the United
States, in the form and effect in which the legislation has
issued and maintained it, has been or is questioned, except
in this mere fact of the legal tender feature. Can you limit
the word questioned to its political sense by the action of
Congress repealing, subverting, neglecting or thwarting the

LEGAL TENDER CASE 579

public debt? Why, if there be any element at all in what is
universal, it must include the judicial question of validity
in what Congress has heretofore done. We survey now the
past situation; we look at the debt as it is, or look at the
laws as they are and their feature, and the vigor that has
been given to the public securities, and we say now in our
plenary sovereignty that that debt, as read in the letter of
the law, shall never be questioned.

I have but to ask the attention of the Court, not so much
to the discussion, as to my abstinence from discussion, of the
secondary questions involved here. They have been very
ably and very ingeniously presented both by Mr. Townsend
and Mr. Potter, in exhibition of the inconveniences, the in
congruities and the disappointments which will grow out of
this or that form of construction of the degree of efficacy
that shall be given to this money in the discharge of past
contracts or obligations arising substantially ex delicto. A
great part of the criticism, ingenious and interesting, will be
found after all to be but a form of that criticism we all must
submit to, the imperfection of human justice; for in the very
case that his honor, Judge Nelson, put of the oats bought in
Canada and lost on the North River, the rule, undisturbed
now by this question of medium value, as he rightly holds,
is, that in the phrase of law, the invoice price is to furnish
the value. Very well. I bought my oats at fifty cents in
gold in Canada, and a week after without any disturbance
in the currency they are worth one dollar by the rise of oats,
and my oats which are worth a dollar to me are paid, by the
tort feasor in the collision, at fifty cents. General rules are
necessary. The oats may have fallen to twenty-five cents;
the tort feasor instead of doing the particular justice of re
storing my oats which he might do at twenty -five cents,
which is the exact restoration of my situation, provided it be
immediate, is obliged to pay fifty cents for oats sunk worth
only twenty-five cents.

580 SPEECHES OF WILLIAM MAXWELL EVARTS

This is the imperfection of natural and human tribunals.
A man trusts his jaw to a dentist and it is broken. The
courts instead of giving him a new jaw, gives him so much
money in his pocket. So in a variety of ways. It is but
the imperfection of human justice. A great many of the
cases, I am persuaded, will not stand the test of law. If I
deliver a bag of gold to my clerk or porter to pay duties,
and he sells it by the way, and brings, as Mr. Potter supposes,
for the money, legal tender notes and pays his debt to me,
that will not save him from the State prison for having em
bezzled my gold as he did on the way. There are a great
many cases where an injudicious selection of agents for
definite trusts results, in spite of all the law can do, to dis
appointment of confidence reposed. But all these modifica
tions being applied and the matter reduced to what belongs
to it, this same general necessity of law which I have
adverted to, when this disturbing element of the measure of
damages being changed does not come in, requires us to
apply only the same possible completeness of justice to this
disturbing element if it be a legal one.

You must give a judgment on a contract. If it be a con
tract sounding in debt, there is no question of evidence and
none for a jury. The law then must pass upon it. It is in
dollars of our currency. That contract of law will sustain
a judgment only for the number of dollars claimed in it.
When the law says that the metallic currency shall be met in
dollars of legal tender then the judgment of the court must
be so, and it would not escape injustice if it did the other and
gave de presenti in its judgment of to-day a measure of value
in paper money adequate to the gold unless it be specific per
formance of judgment, which it cannot do, for the specific
performance of the judgment would be that it should be paid
in gold, unless paper money equal in value should be ten
dered. If when gold is 280, an obligation to pay a hundred
dollars in gold is to result in a judgment for $280, why the

LEGAL TENDER CASE 581

judgment creditors can exact $280 in greenbacks when $100
of them are equal to his debt.

You must, therefore, have a general rule of law, and press
ing that upon the Court, and insisting upon this and this
alone as necessary in the public administration of the ques
tion, I say that whenever in contract a debt is liquidated in
money of our currency called dollars judgment payable in
legal tender according to law can be only for that amount.
But when you liquidate it in judgment, not being liquidated
in contract or arising from tort, and evidence is admissible
either to prove what foreign money is worth or to prove what
the value converted or the measure of trespass should be
accounted in, then the court by the established rules of law
liquidate it on the judgment of a jury finding on the fact.
And that judgment is then for the first time the liquidation
in dollars of the United States of the obligation, to show that
it becomes a debt. All other difficulties, if your Honors
please, of adjustment or interpretation as to what belongs to
notes payable in commodities and how they are to be liqui
dated in commodities, as they are payable in commodities
when they describe gold and silver dollars, are matters of
private right submitted to the jurisdiction of this Court,
with which the public, as now represented in this presenta
tion of the matter, to which your Honors have done me the
favor to listen, and which is submitted on their behalf, has
nothing to do.

VII

ARGUMENT BEFORE THE INTERNATIONAL
TRIBUNAL OF ARBITRATION AT GENEVA

NOTE

By the Treaty of Washington of May 8, 1871, all claims against
Great Britain in behalf of the citizens of the United States who,
during the Civil War, had suffered loss through the depredations
upon the high seas of the Confederate cruisers, built, equipped
and manned in the ship-yards of England, were referred to arbitra
tion. The principal offender among these cruisers was the "Ala
bama" and all these claims thus arising were called generically the
Alabama Claims. An important article of the treaty relating to
this subject provided that the arbitrators in deciding the matter
submitted to them should be guided by the following rules :

"A neutral government is bound, first, to use due diligence to
prevent the fitting out, arming, or equipping, within its jurisdiction,
of any vessel which it has reasonable ground to believe is intended
to cruise or to carry on war against a power with which it is at
peace; and also to use like diligence to prevent the departure from
its jurisdiction of any vessel intended to cruise or carry on war as
above, such vessel having been specially adapted in whole or in
part, within such jurisdiction to war-like use. Secondly, not to
permit or suffer either belligerent to make use of its ports or waters
as the base of naval operations against the other, or for the purpose
of the renewal or augmentation of military supplies or arms, or
the recruitment of men. Thirdly, to exercise due diligence in its
own ports and waters, and, as to all persons within its jurisdiction,
to prevent any violation of the foregoing obligations and duties."

The arbitrators named pursuant to the treaty were as follows:
Mr. Charles Francis Adams, United States Minister at London
during the Civil War, appointed by President Grant; Sir Alexander
Cockburn, Chief Justice of the Queen's Bench, appointed by Queen
Victoria; Count Frederick Sclopis, an eminent Italian jurist and
statesman, appointed by the King of Italy; Mr. Jacob Staempfli, a

582

THE ALABAMA CLAIMS 583

former President of the Swiss Confederation, appointed by the
President of that Government; and Baron d' Itajuba, Brazilian
minister at Paris, appointed by the Emperor of Brazil.

The sessions of the tribunal were held in the "Salle des Con
ferences" of the ancient Hotel de Ville at Geneva, Switzerland.
This room has since been called "Salle de I'Alabama," and a
tablet commemorating the momentous transactions of the arbitra
tion has been placed upon its walls.

Great Britain was represented before the tribunal by Lord Ten-
terden, the Agent of his Government, and by Sir Roundel Palmer,
afterwards Lord Chancellor Selborne, as counsel, with whom was
associated Mr. Montague Bernard. The Agent for the United
States was Mr. J. C. Bancroft Davis, and the counsel, three in
number, were Caleb Gushing, for many years among the foremost
at the bar, Morrison R. Waite, afterwards Chief Justice of the
United States Supreme Court, and Mr. Evarts.

The first meeting of the Tribunal was held December 15, 1871,
when the printed cases of the two governments with the accompa
nying evidence were presented, the arbitrators designating the
15th of the following April as the time for presenting their re
spective counter cases. The final session of the Tribunal was on
the 14th of September, 1872.

At the session of the Tribunal held July 25, 1872, in the language
of Protocol XIV of the conference:

"On the proposal of Baron d'ltajuba, as one of the arbitrators,
the Tribunal decided to require a written or printed statement or
argument from the Counsel of Great Britain upon the following
questions of law:

"1. The question of due diligence, generally considered;

"2. The special question as to the effect of the commissions of
Confederate ships of war entering British ports;

"3. The special question, as to the supplies of coal in British
ports to Confederate ships; with the right to the other party to
reply either orally or in writing, as the case may be."

On July 29 the printed argument of Sir Roundel Palmer, Counsel
for the British Government, was filed with the arbitrators pursuant
to the direction of the Tribunal, and on the 5th and 6th of August
Mr. Evarts delivered the following oral argument in reply:

584 SPEECHES OF WILLIAM MAXWELL EVARTS

ARGUMENT
FIRST DAY, AUGUST 5, 1872

In the course of the deliberations of the Tribunal, it has
seemed good to the arbitrators, in pursuance of the provi
sion of the fifth article of the Treaty of Washington, to in
timate that on certain specific points they would desire a
further discussion on the part of the Counsel of Her Bri
tannic Majesty for the elucidation of those points in the
consideration of the Tribunal. Under that invitation, the
eminent Counsel for the British Government has presented
an argument which distributes itself, as it seems to us, while
dealing with the three points suggested, over a very general
examination of the argument which has already been pre
sented on the part of the United States.

In availing ourselves of the right, under the treaty, of
replying to this special argument upon the points named by
the Tribunal, it has been a matter of some embarrassment
to determine exactly how far this discussion on our part
might properly go. In one sense, our deliberate judgment
is, that this new discussion has really added but little to the
views or the argument which had already been presented on
behalf of the British Government, and that it has not dis
turbed the positions which had been insisted upon, on the
part of the United States, in answer to the previous discus
sions on the part of the British Government, contained in its
case, counter-case, and argument.

But to have treated the matter in this way, and left our
previous argument to be itself such an answer as we were
satisfied to rely upon to the new developments of contrary
views that were presented in this special argument of the
British Government, would have seemed to assume too con
fidently in favor of our argument, that it was an adequate
response in itself, and would have been not altogether re
spectful to the very able, very comprehensive, and very

THE ALABAMA CLAIMS 585

thorough criticism upon the main points of that argument,
which the eminent Counsel of Her Majesty has now pre
sented. Nevertheless, it seems quite foreign from our duty,
and quite unnecessary for any great service to the Tribunal,
to pursue in detail every point and suggestion, however perti
nent and however skilfully applied, that is raised in this new
argument of the eminent Counsel. We shall endeavor,
therefore, to present such views as seem to us useful and
valuable, and as tend in their general bearing to dispose of
the difficulties and counter propositions opposed to our
views in the learned Counsel's present criticism upon them.

The American argument, presented on the 15th of June,
as bearing upon these three points now under discussion,
had distributed the subject under the general heads of the
measure of international duties; of the means which Great
Britain possessed for the performance of those duties; of the
true scope and meaning of the phrase "due diligence," as
used in the treaty ; of the particular application of the duties
of the treaty to the case of cruisers on their subsequent visits
to British ports; and, then, of the faults, or failures, or short
comings of Great Britain in its actual conduct of the trans
actions under review, in reference to these measures of duty,
and this exaction of due diligence.

The special topic now raised for discussion, in the matter
of "due diligence" generally considered, has been regarded
by the Counsel of the British Government as involving a
consideration, not only of the measure of diligence required
for the discharge of ascertained duties, but also the discus
sion of what the measure of those duties was; and, then, of
the exaction of due diligence as applicable to the different
instances or occasions for the discharge of that duty, which
the actual transactions in controversy between the parties
disclosed. That treatment of the points is, of course, suit
able enough if, in the judgment of the learned Counsel,
necessary for properly meeting the question specifically under

586 SPEECHES OF WILLIAM MAXWELL EVARTS

consideration, because all those elements do bear upon the
question of "due diligence" as relative to the time, and
place, and circumstances that called for its exercise. Never
theless, the general question, thus largely construed, is really
equivalent to the main controversy submitted to the disposi
tion of this Tribunal by the treaty, to wit, whether the re
quired due diligence has been applied in the actual conduct
of affairs by Great Britain to the different situations for and
in which it was exacted.

The reach and effort of this special argument in behalf of
the British Government, seem to us to aim at the reduction
of the duties incumbent on Great Britain, the reduction of
the obligation to perform those duties, in its source and in
its authority, and to the calling back of the cause to the posi
tion assumed and insisted upon in the previous argument in
behalf of the British Government, that this was a inatter,
not of international duty, and not of international obliga
tion, and not to be judged of in the court of nations as a
duty due by one nation, Great Britain, to another nation,
the United States, but only as a question of its duty to itself,
in the maintenance of its neutrality, and to its own laws and
its own people, in exerting the means placed at the service
of the Government by the Foreign Enlistment Act for con
trolling any efforts against the peace and dignity of the
nation.

We had supposed, and have so in our argument insisted,
that all that long debate was concluded by what had been
settled by definitive convention between the two nations as
the law of this Tribunal, upon which the conduct and duty
of Great Britain, and the claims and rights of the United
States, were to be adjudged, and had been distinctly ex
pressed, and authoritatively and finally established, in the
three rules of the treaty.

Before undertaking to meet the more particular inquiries
that are to be disposed of in this argument, it is proper that,

THE ALABAMA CLAIMS 587

at the outset, we should take notice of an attempt to dis
parage the efficacy of those rules, the source of their author
ity, and the nature of their obligation upon Great Britain.
The first five sections of the special argument are devoted
to this consideration. It is said that the only way that these
rules come to be important in passing judgment upon the
conduct of Great Britain, in the matter of the claims of the
United States, is by the consent of Her Majesty that, in
deciding the questions between the two countries arising out
of these claims, the arbitrators should assume that, during
the course of these transactions, Her Majesty's Government
had undertaken to act upon the principles set forth in these
rules and in them announced. That requires, it is said, as
a principal consideration, that the Tribunal should deter
mine what the law of nations on these subjects would have
been if these rules had not been thus adopted. Then it is
argued that, as to the propositions of duty covered by the
first rule, the law of nations did not impose them, and that
the obligation of Great Britain, therefore, in respect to the
performance of the duties assigned in that rule, was not
derived from the law of nations, was not, therefore, a duty
between it and the United States, nor a duty the breach of
which called for the resentments or the indemnities that
belong to a violation of the law of nations. Then, it is
argued that the whole duty and responsibility and obliga
tion in that regard, on the part of Great Britain, arose under
the provisions of its domestic legislation, under the provi
sions of the Foreign Enlistment Act, under a general obliga
tion by which a nation, having assigned a rule of conduct
for itself, is amenable for its proper and equal performance
as between and towards the two belligerents. Then, it is
argued that this assent of the British Government, that the
Tribunal shall regard that Government as held to the per
formance of the duties assigned in those rules, in so far as
those rules were not of antecedent obligation in the law of

588 SPEECHES OF WILLIAM MAXWELL EVARTS

nations, is not a consent that Great Britain shall be held
under an international obligation to perform the rules in
that regard, but simply as an agreement that they had under
taken to discharge, as a municipal obligation, under the pro
visions of their Foreign Enlistment Act, duties which were
equivalent, in their construction of the act, to what is now
assigned as an international duty; and this argument thus
concludes :

When, therefore, Her Majesty's Government, by the sixth article
of the Treaty of Washington, agreed that the arbitrators should
assume that Her Majesty's Government had undertaken to act
upon the principles set forth in the three rules (though declining
to assent to them as a statement of principles of international law,
which were in force at the time when the claims arose), the effect
of that agreement was not to make it the duty of the arbitrators
to judge retrospectively of the conduct of Her Majesty's Govern
ment, according to any false hypothesis of law or fact, but to
acknowledge, as a rule of judgment for the purposes of the treaty,
the undertaking which the British Government had actually, and
repeatedly given to the Government of the United States, to act
upon the construction which they themselves placed upon the
prohibitions of their own municipal law, according to which it was
coincident in substance with those rules. — British Special Argu
ment, sec. 5.

Now we may very briefly, as we think, dispose of this sug
gestion, and of all the influences that it is appealed to to
exert throughout the course of the discussion in aid of the
views insisted upon by the learned Counsel. In the first
place, it is not a correct statement of the treaty to say, that
the obligation of these rules, and the responsibility on the
part of Great Britain to have its conduct judged according
to those rules, arise from the assent of Her Majesty thus
expressed. On the contrary, that assent comes in only sub
sequently to the authoritative statement of the rules, and
simply as a qualification attendant upon a reservation on

THE ALABAMA CLAIMS 589

the part of Her Majesty, that the previous declaration shall
not be esteemed as an assent on the part of the British Govern
ment, that those were in fact the principles of the law of
nations at the time the transactions occurred.

The sixth article of the treaty thus determines the author
ity and the obligation of these rules. I read from the very
commencement of the article:

"In deciding the matters submitted to the arbitrators
they shall be governed by the following three rules which
are agreed upon by the high contracting parties as rules to
be taken as applicable to the case and by such principles of
International Law not inconsistent therewith"; and then
the rules are stated.

Now, there had been a debate between the diplomatic rep
resentatives of the two Governments, whether the duties
expressed in those rules were wholly of international obliga
tion antecedent to this agreement of the parties. The
United States had from the beginning insisted that they
were; Great Britain had insisted that, in regard to the out
fit and equipment of an unarmed ship from its ports, there
was only an obligation of municipal law and not of inter
national law; that its duty concerning such outfit was
wholly limited to the execution of its Foreign Enlistment
Act; that the discharge of that duty and its responsibility
for any default therein, could not be claimed by the United
States as matter of international law, nor upon any judg
ment otherwise than of the general duty of a neutral to
execute its laws, whatever they might be, with impartiality
between the belligerents.

To close that debate, and in advance of the submission of
any question to this Tribunal, the law on that subject was
settled by the treaty, and settled in terms which, so far as
the obligation of the law goes, seem to us to admit of no
debate, and to be exposed to not the least uncertainty or
doubt. But in order that it might not be an imputation

590 SPEECHES OF WILLIAM MAXWELL EVARTS

upon the Government of Great Britain, that while it pres
ently agreed that the duties of a neutral were as these rules
express them, and that these rules were applicable to this
case, that a neutral nation was bound to conform to them,
and that they should govern this Tribunal in its decision —
in order that from all this there might not arise an imputa
tion that the conduct of Great Britain, at the time of the
transactions (if it should be found in the judgment of this
Tribunal to have been at variance with these rules), would
be subject to the charge of a variance with an acknowledg
ment of the rules then presently admitted as binding, a
reservation was made. What was that reservation?

Her Britannic Majesty has commanded her High Commis
sioners and Plenipotentiaries to declare that Her Majesty's Govern
ment cannot assent to the foregoing rules as a statement of princi
ples of international law which were in force at the time when the
claims mentioned in Article I arose, but that Her Majesty's Gov
ernment, in order to evince its desire of strengthening the friendly
relations between the two countries, and of making satisfactory
provision for the future, agrees that in deciding the questions
between the two countries arising out of these claims, the arbitra
tors should assume that Her Majesty's Government had under
taken to act upon the principles set forth in these rules.

Thus, while this saving clause in respect to the past con
duct of Great Britain was allowed on the declaration of
Her Majesty, yet that declaration was admitted into the
treaty only upon the express proviso that it should have no
import of any kind in disparaging the obligation of the rules,
their significance, their binding force, or the principles upon
which this Tribunal should judge concerning them.

Shall it be said that when the whole office of this clause,
thus referred to, is of that nature and extent only, and when
it ends in the determination that that reservation shall have
no effect upon your decision, shall it, I say, be claimed that
this reservation shall bave a& effect upon the argument?

THE ALABAMA CLAIMS 591

How shall it be pretended, before a Tribunal like this, that
what is to be assumed in the decision is not to be assumed in
the argument!

But what does this mean? Does it mean that these three
rules, in their future application to the conduct of the United
States — nay, in their future application to the conduct of
Great Britain, mean something different from what they
mean in their application to the past? What becomes,
then, of the purchasing consideration of these rules for the
future, to wit, that, waiving debate, they shall be applied to
the past?

We must therefore insist that, upon the plain declarations
of this treaty, there is nothing whatever in this proposition
of the first five sections of the new special argument. If
there were anything in it, it would go to the rupture, almost,
of the treaty; for the language is plain, the motive is de
clared, the force in future is not in dispute, and, for the con
sideration of that force in the future, the same force is to be
applied in the judgment of this Tribunal upon the past.
Now, it is said that this declaration of the binding authority
of these rules is to read in the sense of this very complicated,
somewhat unintelligible, proposition of the learned Counsel.
Compare his words with the declaration of the binding au
thority of these rules, as Rules of International Law, actually
found in the treaty, and judge for yourselves whether the
two forms of expression are equivalent and interchangeable.

Can any one imagine that the United States would have
agreed that the construction, in its application to the past,
was to be of this modified, uncertain, optional character,
while, in the future, the rules were to be authoritative, bind
ing rules of the law of nations? When the United States
had given an assent, by convention, to the law that was to
govern this Tribunal, was it intended that that law should
be construed, as to the past, differently from what it was to
be construed in reference to the future?

592 SPEECHES OF WILLIAM MAXWELL EVARTS

I apprehend that this learned Tribunal will at once dis
miss this consideration, with all its important influence upon
the whole subsequent argument of the eminent Counsel,
which an attentive examination of that argument will dis
close.

With this proposition falls the farther proposition, already
met in our former argument, that it is material to go into
the region of debate as to what the law of nations upon these
subjects, now under review, was or is. So far as it falls
within the range covered by these rules of the treaty, their
provisions have concluded the controversy. To what pur
pose, then, pursue an inquiry and a course of argument
which, whatever way in the balance of your conclusions it
may be determined, cannot affect your judgment, or your
award? If these rules are found to be conformed to the law
of nations in the principles which it held antecedent to their
adoption, the rules cannot have for that reason any greater
force than by their own simple, unconfirmed authority. If
they differ from, if they exceed, if they transgress the re
quirements of the law of nations, as it stood antecedent to
the treaty, by so much the greater force does the convention
of the parties require that, for this trial and for this judg
ment, these rules are to be the law of this Tribunal. This
argument is hinted at in the counter-case of the British
Government; it has been the subject of some public discus
sion in the press of Great Britain. But the most authorita
tive expression of opinion upon this point from the press of
that country, has not failed to stigmatize this suggestion as
bringing the obligation of the rules of this treaty down to
"the vanishing point." *

At the close of the special argument we find a general pres
entation of canons for the construction of treaties, and some
general observations as to the light or the controlling reason

* " London Times," February, 1872.

THE ALABAMA CLAIMS 593

under which these rules of the treaty should be construed.
These suggestions may be briefly dismissed.

It certainly would be a very great reproach to these
nations, which had deliberately fixed upon three proposi
tions as expressive of the law of nations, in their judgment,
for the purposes of this trial, that a resort to general instruc
tions, for the purpose of interpretation, was necessary.
Eleven canons of interpretation drawn from Vattel, are pre
sented in order, and then several of them, as the case suits,
are applied as valuable in elucidating this or that point of
the rules. But the learned Counsel has omitted to bring to
your notice the first and most general rule of Vattel, which,
being once understood, would, as we think, dispense with
any consideration of these subordinate canons which Vattel
has introduced to be used only in case his first general rule
does not apply. This first proposition is, that "it is not
allowable to interpret what has no need of interpretation."

Now these rules of the treaty are the deliberate and care
ful expression of the will of the two nations in establishing
the law for the government of this Tribunal, which the
treaty calls into existence. These rules need no interpreta
tion in any general sense. Undoubtedly there may be
phrases which may receive some illustration or elucidation
from the history and from the principles of the law of na
tions; and to that we have no objection. Instances of very
proper application to that resort, occur in the argument to
which I am now replying. But there can be no possible
need to resort to any general rules, such as those most
favored and insisted upon by the learned Counsel, viz., the
sixth proposition of Vattel, that you never should accept an
interpretation that leads to an absurdity, — or the tenth, that
you never should accept an interpretation that leads to a
crime. Nor do we need to recur to Vattel for what is cer
tainly a most sensible proposition, that the reason of the
treaty, — that is to say, the motive which led to the making

40

594 SPEECHES OF WILLIAM MAXWELL EVARTS

of it and the object in contemplation at the time, — is the
most certain clue to lead us to the discovery of its true
meaning.

But the inference drawn from that proposition, in its
application to this case, by the learned Counsel, seems very
wide from what to us appears natural and sensible. The
aid which he seeks under the guidance of this rule, is from
the abstract propositions of publicists on cognate subjects,
or the illustrative instances given by legal commentators.

Our view of the matter is, that, as this treaty is applied
to the past, as it is applied to an actual situation between
the two nations, and as it is applied to settle the doubts and
disputes which existed between them as to obligation, and
to the performance of obligations, these considerations fur
nish the resort, if any is needed, whereby this Tribunal should
seek to determine what the true meaning of the High Con
tracting Parties is.

Now, as bearing upon all these three topics, of due dili
gence, of treatment of offending cruisers in their subsequent
visits to British ports, and of their supply, as from a base of
operations, with the means of continuing the war, these rules
are to be treated in reference to the controversy as it had
arisen and as it was in progress between the two nations
when the treaty was formed. What was that? Here was
a nation prosecuting a war against a portion of its popula
tion and territory in revolt. Against the sovereign thus
prosecuting his war, there was raised a maritime warfare.
The belligerent itself thus prosecuting this maritime warfare
against its sovereign, confessedly had no ports and no waters
that could serve as the base of its naval operations. It had
no ship-yards, it had no foundries, it had no means or
resources by which it could maintain or keep on foot that
war. A project and a purpose of war was all that could have
origin from within its territory, and the pecuniary resources
by which it could derive its supply from neutral nations was
all that it could furnish towards this maritime war.

THE ALABAMA CLAIMS 595

Now, that war having in fact been kept on foot and having
resulted in great injuries to the sovereign belligerent, gave
occasion to a controversy between that sovereign and the
neutral nation of Great Britain as to whether these actual
supplies, these actual bases of maritime war from and in
neutral jurisdiction, were conformable to the law of nations,
or in violation of its principles. Of course, the mere fact
that this war had thus been kept on foot did not, of itself,
carry the neutral responsibility. But it did bring into con
troversy the opposing positions of the two nations. Great
Britain contended during the course of the transactions, and
after their close, and now here contends, that, however much
to be regretted, these transactions did not place any respon
sibility upon the neutral, because they had been effected only
by such communication of the resources of the people of
Great Britain as under international law was innocent and
protected; that commercial communication and the resort
for asylum or hospitality in the ports was the entire measure,
comprehension and character of all that had occurred within
the neutral jurisdiction of. Great Britain. The United States
contended to the contrary.

What then was the solution of the matter which settles
amicably this great dispute? Why, first, that the principles
of the law of nations should be settled by convention, as they
have been, and that they should furnish the guide and the
control of your decision; second, that all the facts of the
transactions as they occurred should be submitted to your
final and satisfactory determination; and, third, that the
application of these principles of law settled by convention
between the parties to these facts as ascertained by your
selves should be made by yourselves, and should, in the end,
close the controversy, and be accepted as satisfactory to
both parties.

In this view, we must insist that there is no occasion to go
into any very considerable discussion as to the meaning of

596 SPEECHES OF WILLIAM MAXWELL EVARTS

these rules, unless in the very subordinate sense of the ex
planation of a phrase, such as "base of operations," or
"military supplies," or "recruitment of men," or some simi
lar matter.

I now ask your attention to the part of the discussion
which relates to the effect of a "commission," which, though
made the subject of the second topic named by the Tribunal,
and taken in that order by the learned Counsel, I propose
first to consider.

It is said that the claims of the United States in this be
half, as made in their argument, rest upon an exaggerated
construction of the second clause of the first rule. On this
point, I have first to say, that the construction which we
put upon that clause is not exaggerated; and, in the second
place, that these claims in regard to the duty of Great
Britain in respect to commissioned cruisers that have had
their origin in an illegal outfit in violation of the law of
nations, as settled in the first rule, do not rest exclusively
upon the second clause of the first rule. They, undoubt
edly, in one construction of that clause, find an adequate
support in its proposition; but, if that construction should
fail, nevertheless, the duty of Great Britain in dealing with
these offending cruisers in their subsequent resort to its ports
and waters, would rest upon principles quite independent of
this construction of the second clause.

The second clause of that rule is this: "And also to use
like diligence to prevent the departure from its jurisdiction
of any vessel intended to cruise or carry on war as above,
such vessel having been specially adapted in whole or in part
within such jurisdiction to warlike use."

It is said that this second clause of the first rule manifestly
applies only to the original departure of such a vessel from
the British jurisdiction, while its purposes of unlawful hos
tility still remain in intention merely, and have not been
evidenced by execution,

THE ALABAMA CLAIMS 59?

If this means that a vessel that had made its first evasion
from a British port, under circumstances which did not
inculpate Great Britain for failing to arrest her, and then
had come within British ports a second time, and the evi
dence, as then developed, would have required Great Britain
to arrest her, and would have inculpated that nation for
failure so to do, is not within the operation of this rule, I am
at a loss to understand upon what principle of reason this
pretension rests. If the meaning is that this second clause
only applies to such offending vessels while they remain in
the predicament of not having acquired the protection of a
"commission," that pretension is a begging of the question
under consideration, to wit, what the effect of a "commis
sion" is under the circumstances proposed.

I do not understand exactly whether these two cases are
meant to be covered by this criticism of the learned Counsel.
But let us look at it. Supposing that the escape of the
"Florida" from Liverpool, in the first instance, was not
under circumstances which made it an injurious violation of
neutrality for which Great Britain was responsible to the
United States, that is to say, that there was no such fault,
from inattention to evidence, or from delay or inefficiency
of action, as made Great Britain responsible for her escape;
and supposing when she entered Liverpool again, as the
matter then stood in the knowledge of the Government, the
evidence was clear and the duty was clear, if it were an
original case; is it to be said that the duty is not as strong,
that it is not as clear, and that a failure to perform it is not
as clear a case for inculpation, as if in the original outset the
same circumstances of failure and of fault had been apparent?
Certainly the proposition cannot mean this. Certainly the
conduct of Great Britain in regard to the vessel at Nassau,
a British port into which she went after her escape from
Liverpool, does not conform to this suggestion. But if the
proposition does not come to this then it comes back to the

598 SPEECHES OF WILLIAM MAXWELL EVAKTS

pretension that the commission intervening terminates the
obligation, defeats the duty, and exposes the suffering bel
ligerent to all the consequences of this naval war, illegal in
its origin, illegal in its character, and, on the part of the
offending belligerent, an outrage upon the neutral that has
suffered it.

Now that is the very question to be determined. Un
questionably, we submit that while the first clause of the
first rule is, by its terms, limited to an original equipment or
outfit of an offending vessel the second clause was intended
to lay down the obligation of detaining in port and of pre
venting the departure, of every such vessel whenever it
should come within British jurisdiction. I omit from this
present statement, of course, the element of the effect of
the "commission," that being the immediate point in dispute.

I start in the debate of that question with this view of the
scope and efficacy of the rule itself.

It is said, however, that the second clause of the first rule
is to be qualified in its apparent signification and applica
tion by the supplying a phrase used in the first clause, which,
it is said, must be communicated to the second. That quali
fying phrase is "any vessel which it has reasonable ground to
believe is intended," etc.

Now, this qualification is in the first clause, and it is not
in the second. Of course, this element of having "reason
able ground to believe" that the offence which a neutral na
tion is required to prevent is about to be committed, is an
element of the question of due diligence always fairly to be
considered, always suitably to be considered in judging
either of the conduct of Great Britain in these matters, or of
the conduct of the United States in the past, or of the duty
of both nations in the future. As an element of due dili
gence, it finds its place in the second clause of the first rule,
but only as an element of due diligence.

Now, upon what motive does this distinction between the

THE ALABAMA CLAIMS 599

purview of the first clause and of the second clause rest?
Why, the duty in regard to these vessels embraced in the
first clause applies to the inchoate and progressing enterprise
at every stage of fitting out, arming or equipping, and while
that enterprise is, or may be, in respect to evidence of its
character, involved in obscurity, ambiguity and doubt. It
is, therefore, provided that, in regard to that duty, only such
vessels are thus subjected to interruption in the progress of
construction at the responsibility of the neutral, as the neu
tral has "reasonable ground to believe" are intended for an
unlawful purpose, which purpose the vessel itself does not
necessarily disclose either in regard to its own character or
of its intended use. But, after the vessel has reached its
form and completed its structure, why then it is a sufficient
limitation of the obligation and sufficient protection against
undue responsibility, that "due diligence to prevent" the
assigned offence is alone required. Due diligence to accom
plish the required duty is all that is demanded and accord
ingly that distinction is preserved. It is made the clear and
absolute duty of a nation to use due diligence to prevent the
departure from its jurisdiction of any vessel intended to
cruise or carry on war against a power with which it is at
peace, such vessel having been specially adapted in whole or
in part within such jurisdiction to warlike use. That is,
when a vessel has become ready to take the seas, having its
character of warlike adaptation thus determined and thus
evidenced, so upon its subsequent visit to the neutral's port,
as to such a vessel, the duty to arrest her departure is limited
only by the —

CHIEF JUSTICE COCKBURN: What should you think, Mr.
Evarts, of such a case as this? Suppose a vessel had es
caped from Great Britain with or without due diligence
being observed — take the case of the "Florida" or the
"Shenandoah" — take either case. She puts into a port
belonging to the British Crown. You contend, if I under-

600 SPEECHES OF WILLIAM MAXWELL EVARTS

stand your argument, that she ought to be seized. But
suppose the authorities at the port into which she puts are
not aware of the circumstances under which the vessel
originally left the shores of Great Britain. Is there an ob
ligation to seize that vessel?"

MR. EVARTS: That, like everything else, is left as matter
of fact.

The CHIEF JUSTICE: But suppose the people at the place
are perfectly unaware from whence this vessel —

MR. EVARTS : I understand the question. We are not call
ing in judgment the authorities at this or that place. We are
calling into judgment the British nation, and if the ignorance
and want of knowledge in the subordinate officials at such a
port can be brought to the fault of the Home Government
in not advising or keeping them informed, that is exactly
the condition from which the responsibility arises. It is a
question of "due diligence," or not, of the nation in all its
conduct in providing, or not providing, for the situation, and
in preparing, or not preparing, its officials to act upon suit
able knowledge.

We find nothing of any limitation of this second clause of
the first rule that prevents our considering its proper appli
cation to the case of a vessel, which, for the purpose of the
present argument, it must be conceded ought to be arrested
under it, and detained in port if the "commission" does not
interpose an obstacle.

We have laid down at pages from 331 to 333, in our argu-
menfy what we consider the rules of law in regard to the
effect of the "commission" of a sovereign nation, or of a
belligerent not recognized as a sovereign, in the circumstances
involved in this inquiry. They are very simple. I find
nothing in the argument of my learned friend, careful and
intelligent as it is, that disturbs these rules as rules of law.
The public ship of a nation, received into the waters or ports
of another nation is, by the practice of nations, as a conces-

THE ALABAMA CLAIMS 601

sion to the sovereign's dignity, exempt from the jurisdiction
of the courts and all judicial process of the nation whose
waters it visits. This is a concession, mutual, reciprocal
between nations having this kind of intercourse, and resting
upon the best and surest principles of international comity.
But there is no concession of extra-territoriality to the effect
or extent that the sovereign visited is predominated over by
the sovereign receiving hospitality to its public vessels. The
principle simply is, that the treatment of the vessel rests
upon considerations between the nations as sovereign, and
in their political capacities, as matter to be dealt with di
rectly between them, under reciprocal responsibility for of
fence on either side, and under the duty of preserving rela
tions of peace and good will if you please, but, nevertheless,
to be controlled by reasons of state.

Any construction of the rule that would allow the visiting
vessel to impose its own sovereignty upon the sovereign
visited, would be to push the rule to an extreme that would
defeat its purpose. It is the equality of sovereigns that
requires that the process and the jurisdiction of courts should
not be extended to public vessels.

But all other qualifications as to how the sovereign visited
shall deal with public vessels, rest in the discretion of the
sovereign. If offence is committed by such vessels, or any
duty arises in respect to them, he, at his discretion and under
international responsibility, makes it the subject of remon
strance, makes it the subject of resentment, makes it the
subject of reprisal, or makes it the subject of an immediate
exercise of force, if the circumstances seem to exact it.

What, then, is the tenor of the authorities, in respect to a
public vessel not of a sovereign, but of a belligerent, who has
not been recognized as a sovereign? The courts of the coun
try, when the question arises as a judicial one, turn to the
political authority, and ask how that has determined the
question of the public character of such vessels; and if that

602 SPEECHES OF WILLIAM MAXWELL EVARTS

question (which is a political one) has been determined in
recognition of the belligerency, then the vessel of the bellig
erent is treated as exempt from judicial process and from the
jurisdiction of the courts. But that vessel remains subject
to the control, subject to the dominion of the sovereign
whose ports it has visited, and it remains there under the
character of a limited recognition, and not in the public
character of a representative of recognized sovereignty.

We understand the motives by which belligerency is rec
ognized while sovereignty is refused. They are the motives
of humanity: they are the motives of fair play; they are the
motives of neutral recognition of the actual features of the
strife of violence that is in progress. But it is in vain to
recognize belligerency and deny sovereignty, if you are going
to attract one by one all the traits of sovereignty, in the rela
tions with a power merely recognized as belligerent and to
whom sovereignty has been denied.

What is the difference of predicament? Why, the neutral
nation, when it has occasion to take offence or exercise its
rights with reference to a belligerent vessel not representing
a sovereign, finds no sovereign behind that vessel to which
it can appeal, to which it can remonstrate, by which through
diplomacy, by which through reprisals, by which in resent
ments, it can make itself felt, its dominion respected, and its
authority obeyed. It then deals with these belligerent ves
sels, not unjustly, not capriciously, for injustice and caprice
are wrong toward whomsoever they are exercised, but,
nevertheless, upon the responsibility that its dealing must
reach the conduct, and that the vessel and its conduct are
the only existing power and force to which it can apply
itself.

I apprehend that there is no authority from any book that
disturbs in the least this proposition, or carries the respect
to belligerent vessels beyond the exemption from jurisdic
tion of courts and judicial process. The rule of law being

THE ALABAMA CLAIMS 603

of this nature, the question, then, of how a neutral shall deal
with one of these cruisers that owes its existence to a viola
tion of its neutral rights, and then presents itself for hospi
tality in a port of the neutral, is a question for the neutral
to determine according to its duty to itself, in respect to its
violated neutrality and its duty to the sovereign belligerent,
who will lay to its charge the consequences and the respon
sibility for this offending belligerent.

Now, I find in the propositions of the eminent Counsel a
clear recognition of these principles of power on the part of
the sovereign, and of right on the part of the sovereign, re
quiring only that the power should be exercised suitably, and
under circumstances which will prevent it from working op
pression or unnecessary injury. That makes it a question,
therefore, as to the dealing of the sovereign for which the
law of nations applies no absolute rule. It then becomes a
question for the Tribunal whether (under these circum
stances of cruisers, that owe their origin, or their power to
commit these injuries, to their violation of neutrality), Great
Britain is responsible to the injured sovereign, the United
States, for this breach of neutrality, for this unlawful birth,
for this unlawful support of these offending cruisers. As to
what the duty of a neutral nation is in these circumstances
and in these relations, when the offending cruiser is again
placed within its power, I find really no objection made to
the peremptory course we insist upon, except that seizing
such a vessel, without previous notice, would be impolite,
would be a violation of comity, would be a violation of the
decorous practice of nations, and would be so far a wrong.

Well, let us not discuss these questions in the abstract
merely; let us apply the inquiry to the actual conduct of
Great Britain in the actual circumstances of the career of
these cruisers. If Great Britain claimed exemption from
liability to the United States by saying that, when these
cruisers had, confessedly, in fact escaped in violation of

604 SPEECHES OF WILLIAM MAXWELL EVARTS

neutrality, and confessedly were on the seas propagating
those enormous injuries to the property and commerce of a
friendly nation, it had promptly given notice that no one of
them should ever after enter its ports, and that, if it did
enter its ports, it would be seized and detained, then this
charge that the conduct of Great Britain towards these
cruisers in their subsequent visits to its ports, was such as to
make it responsible for their original escape or for their sub
sequent career, would be met by this palliation or this de
fence. But no such case arises upon the proofs. You have
then, on the one hand, a clear duty towards the offended
belligerent, and on the other only the supposed obligation of
courtesy or comity towards the offending belligerent. This
courtesy, this comity, it is conceded, can be terminated at
any time at the will of the neutral sovereign. But this
comity or this courtesy has not been withdrawn by any
notice, or by any act of Great Britain, during the entire
career of these vessels.

We say then, in the first place, that there is no actual situ
ation which calls for a consideration of this palliative de
fence; because the circumstances do not raise it for considera
tion. On the contrary, the facts as recorded show the most
absolute indifference, on the part of Great Britain, to the
protracted continuance of the ravages of the "Alabama" and
of the "Florida," whose escape is admitted to be a scandal
and a reproach to Great Britain, until the very end of the
war.

And, yet, a subtraction of comity, a withdrawal of cour
tesy was all that was necessary to have determined their
careers.

But, further, let us look a little carefully at this idea that
a cruiser, illegally at sea by violation of the neutrality of the
nation which has given it birth, is in a condition, on its first
visit to the ports of the offended neutral, after the commis
sion of the offence, to claim the allowance of courtesy or

THE ALABAMA CLAIMS 605

comity. Can it claim courtesy or comity, by reason of any
thing that has proceeded from the neutral nation to encour
age that expectation? On the contrary, so far from its being
a cruiser that has a right to be upon the sea, and to be a
claimant of hospitality, it is a cruiser, on the principles of
international law (by reason of its guilty origin, and of the
necessary consequences of this guilt to be visited upon the
offended neutral), for whose hostile ravages the British
Government is responsible. What courtesy, then, does that
Government owe to a belligerent cruiser that thus practised
fraud and violence upon its neutrality and exposed it to this
odious responsibility? Why does the offending cruiser need
notice that it will receive the treatment appropriate to its
misconduct and to the interests and duty of the offended
neutral? It is certainly aware of the defects of its origin,
of the injury done to the neutral, and of the responsibility
entailed upon the neutral for the injury to the other bel
ligerent. We apprehend that this objection of courtesy to
the guilty cruiser, that is set up as the only obstacle to the
exercise of an admitted power, that this objection which
maintains that a power just in itself, if executed without
notice, thereby becomes an imposition and a fraud upon the
offender, because no denial of hospitality has been previously
announced, is an objection which leaves the ravages of such
a cruiser entirely at the responsibility of the neutral which
has failed to intercept it.

It is said in the special argument of the learned Counsel,
that no authority can be found for this exercise of direct
sovereignty on the part of an offended neutral towards a
cruiser of either a recognized or an unrecognized sovereignty.
But this after all comes only to this, that such an exercise of
direct control over a cruiser, on the part of an offended neu
tral, without notice, is not according to the common course
of hospitality for public vessels whether of a recognized
sovereign or of a recognized belligerent. As to the right to

606 SPEECHES OF WILLIAM MAXWELL EVARTS

exercise direct authority on the part of the displeased neu
tral, to secure itself against insult or intrusion on the part of
a cruiser that has once offended its neutrality, there is no
doubt.

The argument that this direct control may be exercised by
the displeased neutral without the intervention of notice,
when the gravity and nature of the offence against neutrality
on the part of the belligerent justify this measure of resent
ment and resistance, needs no instance and no authority for
its support. In its nature, it is a question wholly dependent
upon circumstances.

Our proposition is, that all of these cruisers drew their
origin out of the violated neutrality of Great Britain, ex
posing that nation to accountability to the United States for
their hostilities. Now, to say that a nation thus situated is
required by any principles of comity to extend a notice be
fore exercising control over the offenders brought within its
power, seems to us to make justice and right, in the gravest
responsibilities, yield to mere ceremonial politeness.

To meet, however, this claim on our part, it is insisted, in
this special argument, that the equipment and outfit of a
cruiser in a neutral port, if it goes out unarmed (though
capable of becoming an instrument of offensive or defensive
war by the mere addition of an armament), may be an
illegal act as an offence against municipal law, but is not a
violation of neutrality in the sense of being a hostile act, and
does not place the offending cruiser in the position of having
violated neutrality. That is but a recurrence to the subtle
doctrine that the obligations of Great Britain in respect to
the first rule of the treaty, are not, by the terms of the treaty,
made international obligations, for the observance of which
she is responsible under the law of nations, and for the per
missive violation of which she is liable, as having allowed,
in the sense of the law of nations a hostile act to be perpe
trated on her territory.

THE ALABAMA CLAIMS 607

This distinction between a merely illegal act and a hostile
act, which is a violation of neutrality, is made, of course, and
depends wholly, upon the distinction of the evasion of an
unarmed ship-of-war being prohibited only by municipal law
and not by the law of nations, while the evasion of an armed
ship is prohibited by the law of nations. This is a renewal
of the debate between the two nations as to what the rule of
the law of nations in this respect was. But this debate was
finally closed by the treaty. And, confessedly, on every
principle of reason, the moment you stamp an act as a viola
tion of neutrality, you include it in the list of acts which by
the law of nations are deemed hostile acts. There is no act
that the law of nations prohibits within the neutral jurisdic
tion that is not in the nature of a hostile act, that is not in
the nature of an act of war, that is not in the nature of an
application by the offending belligerent of the neutral territory
to the purposes of his war against the other belligerent. The
law of nations prohibits it, the law of nations punishes it,
the law of nations exacts indemnity for it, only because it is
a hostile act.

Now, suppose it were debatable before the Tribunal
whether the emission of a war-ship without the addition of
her armament, was a violation of the law of nations, on the
same reason, and only on that reason, it would be debatable
whether it were a hostile act. If it were a hostile act, it was
a violation of the law of nations ; if it were not a violation of
the law of nations it was not so, only because it was not a
hostile act. When, therefore the rules of the treaty settle
that debate in favor of the construction claimed by the
United States in its antecedent history and conduct, and
determine that such an act is a violation of the law of na
tions, they determine that it is a hostile act. There is no
escape from the general proposition that the law of nations
condemns nothing done in a neutral territory unless it is
done in the nature of a hostile act. And when you debate

608 SPEECHES OF WILLIAM MAXWELL EVARTS

the question whether any given act within neutral jurisdic
tion is or is not forbidden by the law of nations, you debate
the question whether it is a hostile act or not.

Now, it is said that this outfit without the addition of an
armament is not a hostile act under the law of nations,
antecedent to this treaty. That is immaterial within the
premises of the controversy before this Tribunal.

It is a hostile act against Great Britain, which Great
Britain —

SIR ALEXANDER COCKBURN: Do I understand you, Mr.
Evarts, to say that such an act is a hostile act against Great
Britain?

MR. EVARTS: Yes, a hostile violation of the neutrality of
Great Britain, which, if not repelled with due diligence,
makes Great Britain responsible for it as a hostile act within
its territory against the United States.

This argument of the eminent Counsel concedes that if an
armament is added to a vessel within the neutral territory
it is a hostile act within that territory, it is a hostile expedi
tion set forth from that territory. It is therefore a viola
tion of the law of nations, and if due diligence is not used to
prevent it, it is an act for which Great Britain is responsible.
If due diligence to prevent it be or be not used, it is an offence
against the neutral nation by the belligerent which has con
summated the act.

A neutral nation, against the rights of which such an act
has been committed, to wit, the illegally fitting out a war
ship without armament (condemned by the law of nations
as settled by this treaty), is under no obligation whatever of
courtesy or comity to that cruiser. If, under such circum
stances, Great Britain prefers courtesy and comity to the
offending cruiser and its sponsors, rather than justice and
duty to the United States, she does it upon motives which
satisfy her to continue her responsibility for that cruiser
rather than to terminiate it. Great Britain has no authority

THE ALABAMA CLAIMS 609

to exercise comity and courtesy to these cruisers at the ex
pense of the offended belligerent, the United States, what
ever her motives may be. Undoubtedly the authorities
conducting the rebellion would not have looked with equal
favor upon Great Britain, if she had terminated the career
of these cruisers by seizing them or excluding them from her
ports. That is a question between Great Britain and the
belligerent that has violated her neutrality. Having the
powers, having the right, the question of courtesy in giving
notice was to be determined at the cost of Great Britain and
not at the expense of the United States. But it ceases to
be a question of courtesy when the notice has not been given
at all, and when the choice has thus been made that these
cruisers shall be permitted to continue their career un
checked.

Now on this question, whether the building of a vessel of
this kind without the addition of armament is proscribed by
the law of nations, and proscribed as a hostile act and as a
violation of neutral territory (outside of the rules of the
treaty) which is so much debated in this special argument, I
ask attention to a few citations most of which have been
already referred to in the American case.

Hautefeuille as cited upon page 170, says:

Le fait de construire un batiment de guerre pour le comte d'un
belligerant ou de Farmer dans les etats neutres est une violation du
territoire. ... II peut egalement reclamer le desarmement du
batiment illegalement arme sur son territoire et meme le detenir,
s'il entre dans quelque lieu soumis a sa souverainete jusqu'a ce
qu'il ait etc desarme.

Ortolan, as quoted on page 182 of the same case, passes
upon this situation, which we are now discussing, as follows :

Nous nous rattacherons pour resoudre en droit des gens les
difficultes que presente cette nouvelle situation, a un principe uni-
versellement etabli, qui se formule en ce peu de mots "inviola-
bilite du territoire neutre." Get inviolabilite est un droit pour

41

610 SPEECHES OF WILLIAM MAXWELL EVARTS

Fetat neutre, dont le territoire ne doit pas etre atteint par les fails
de guerre, mais elle impose aussi a ce meme etat neutre une etroite
obligation, celle de ne pas permettre, celle d'empecher, activement
au besoin, Pemploi de ce territoire par une des parties ou au profit
de Tune des parties belligerantes dans un but hostile a 1'autre
partie.

And this very question, the distinction between an armed
vessel and an unarmed vessel, was met by Lord Westbury,
in observations made by him, and which are quoted in the
American case at page 185. He said:

There was one rule of conduct which undoubtedly civilized na
tions had agreed to observe, and it was that the territory of a
neutral should not be the base of military operations by one of two
belligerents against the other. In speaking of the base of opera
tions, he must to a certain degree differ from the noble earl [Earl
Russell]. It was not a question whether armed ships had actually
left our shores ; but it was a question whether ships with a view to
war had been built in our ports by one of two belligerents. They
need not have been armed; but if they had been laid down and
built with a view to warlike operations by one of two belligerents,
and this was knowingly permitted to be done by a neutral power,
it was unquestionably a breach of neutrality.

Chancellor Kent, in a passage cited by the learned Coun
sel with approval, speaking of the action of the United
States as shown in the rules of President Washington's ad
ministration (which rules are also subsequently quoted with
approval in this argument) says (Vol. I, p. 122) :

The Government of the United States was warranted by the law
and practice of nations, in the declaration made in 1793 of the rules
of neutrality, which were particularly recognized as necessary to
be observed by the belligerent powers, in their intercourse with
this country. These rules were that the original arming or equip
ping of vessels in our ports, by any of the powers at war, for military
service, was unlawful; and no such vessel was entitled to an asylum in
our ports.

THE ALABAMA CLAIMS 611

No vessel thus equipped was entitled to an asylum in the
ports of the nation whose neutrality had been violated.
The Tribunal will not fail to observe that these principles
were applied by President Washington to cruisers even of an
independent nation, recognized as a sovereign. It was the
cruisers of France that were under consideration. But the
propositions of this special argument, and the course actually
pursued by Great Britain, in according its homage to their
flag placed these insurgent cruisers on a much higher and
more inviolable position than it is possible to concede to
cruisers of a recognized sovereign. In truth, such treatment
accorded to such cruisers all the irresponsibility of pirates
and all the sanctity of public ships of a recognized sover
eignty. It accorded the irresponsibility of pirates, because
they were exempted from all control, and there was no
government behind them to be made responsible for them,
to be resorted to for their correction or restraint, and to
meet the resentments of the offended neutrals in the shape
of nonintercourse, of reprisals, or of war.

The action of Great Britain, under this doctrine of comity
and notice as applied to the cruisers of this belligerency,
really exempted them, from the beginning to the end of their
careers on the ocean, from all responsibility whatever. How
long could such conduct toward Great Britain in violation of
her neutrality, as was practiced by this belligerent, how
long could such violations of the neutrality of Great Britain
have been exercised by belligerent France without remon
strance, and if that remonstrance were unheeded, without
reprisals, followed finally by war? Why was not such re
course taken in respect to these cruisers, to the power behind
them? There was no power behind them.

I ask, also, in this connection, attention to 1 Phillimore,
pages 399 to 404, and, especially, to a passage extracted from
the case of the "Santissima Trinidad," commenting upon
the case of the "Exchange," which last case is cited at con-

612 SPEECHES OF WILLIAM MAXWELL EVARTS

siderable length in the argument of the eminent Counsel.
Now the "Exchange" settles nothing, except that when the
political authority of a government has recognized belliger
ency, the courts will not exercise jurisdiction over the ves
sels although sovereignty has not been conceded as well.

The only case in the history of our country in which the
political authority was called upon to deal with a cruiser
that had derived its origin in violation of our neutrality was
the case of a public ship of France, the "Cassius," originally
"Les Jumeaux." The legal report of this case is copied in
full in the Appendix of the British case. It never came to
any other determination than that France, the recognized
Government of France, was the sponsor for the "Cassius,"
and it was on the respect shown to a sovereign as well as a
public belligerent that the disposition of the case, exempting
the vessel from judicial process, was made.

SIR ROUND ELL PALMER: The vessel was restored.

MR. EVARTS: But it was only after her character as a war
vessel had ceased.

SIR ROUND ELL PALMER: It was the Government of
the United States, by its executive power, that directed
the ship to be restored.

MR. EVARTS: A detailed history of this case, legal and
political, will be found in Vol. VII of the American Ap
pendix, pages 18 to 23, in Mr. Dana's valuable note.

It will there be seen that the occasion for our Govern
ment to determine its political or executive action never
arose until after the determination of the judicial proceedings
and until after the vessel had been thrown up by the French
Minister, who abandoned her to the United States Govern
ment, nor until after she was a worthless hulk.

SIR ROUNDELL PALMER: Am I not right in saying that
the President of the Executive Government of the United
States gave notice to the French Minister that the ship was
at his disposal?

THE ALABAMA CLAIMS 613

MR. EVARTS: After it had been abandoned, after it had
ceased to be a cruiser capable of hostilities, and after the
opportunity for its further hostilities had ceased.

LORD TENDERDEN: But the war still continued.

MR. EVARTS: But, I mean after the hostilities of that
vessel came to an end.

And permit me to say this condition of things between
the United States and France, during the administration of
the first President Adams, came substantially to a war
between the two countries.*

Now, it is said that the application of this second clause
of the first rule of the treaty, and this demand that deten
tion or exclusion shall be exercised in respect to cruisers on
their subsequent visits to ports, do not apply either to the
"Georgia" or "Shenandoah," because neither the "Georgia"
nor "Shenandoah," received their original outfit by violation
of the territory of Great Britain, not even in the view of
what would be such a violation taken by the United States.

*A passage from Mr. Dana's note already referred to, puts this matter in a very
clear light.

"As the 'Cassius was taken into judicial custody, within twenty-four hours of her
arrival, and remained in that custody, until after she had been disarmed and dis
mantled by the French Minister, and formally abandoned by him to the United
States' Government with a reclamation for damages, the political department of
the United States' Government never had practically before it the question, what
it would do with an armed foreign vessel of war within its control which had, on
a previous voyage, before it became a vessel of war, and while it was a private
vessel of French citizens, added warlike equipments to itself within our ports, in
violation of our statutes for the preservation of our neutrality. When it came out
of judicial custody, it was a stripped, deteriorated and abandoned hulk, and was
sold as such by public auction. The only political action of our government con
sisted in this: It refused to interfere to take the vessel from the custody of the
judiciary, but instructed its attorney to see that the fact of its being a bona fide
vessel of war be proved and brought to the attention of the court, with a motion
for its discharge from arrest on the ground of its exemption as a public ship, if it
turned out to be so. What course the Executive would have taken as to the vessel,
if it had passed out of judicial custody before it was abandoned and dismantled,
does not, of course, appear. And that is the only question of interest to interna
tional law." VII American Appendix, p. 23; Choix de Pieces, etc. t. 2, p. 726.

614 SPEECHES OF WILLIAM MAXWELL EVARTS

I understand that to be the position. I will not discuss the
facts of the "Georgia" and "Shenandoah" any more than
of any other vessel in this regard. If the "Shenandoah"
and "Georgia," in the conclusions that you shall arrive at
upon the facts concerning their outfit, shall be pronounced
in their original evasion not to involve culpability on the
part of Great Britain, and not to involve violation of Great
Britain's territory on the part of either of these cruisers —

SIR ALEXANDER COCKBURN: Suppose, Mr. Evarts, that
the departure was of such a nature as not to involve Great
Britain in any culpability for want of due diligence, still
there certainly is a violation of territory.

MR. EVARTS: That is the point I was coming to and of
that I entertain no doubt.

You must find upon the facts that there was no evasion
from the ports of Great Britain by either of those vessels
under circumstances amounting to a violation of the neutral
ity of Great Britain (on the part of the vessels and on the
part of those who set them forth), before you bring them
into the situation where the resentment for a violation of
neutrality, which I have insisted upon, was not required to
be exhibited.

I am not, however, here to discuss the questions of fact.

I will take up what is made the subject of the third chapter
of the special argument which has reference to coaling and
"the base of naval operations" and "military supplies," as
prohibited by the second rule of the treaty.

The question of "coaling" is one question considered
simply under the law of hospitality or asylum to belligerent
vessels in neutral ports, and quite another considered, under
given facts and circumstances, as an element in the pro
scribed use of neutral ports as "a base of naval operations."

At the outset of the discussion of this subject it is said
that the British Government dealt fairly and impartially
in this matter of coaling with the vessels of the two belliger-

THE ALABAMA CLAIMS 615

ents, and that the real complaint on the part of the United
States is of the neutrality which Great Britain had chosen to
assume for such impartial dealing between the two belliger
ents. If that were our complaint it is, certainly, out of
place in this controversy, for we are dealing with the con
duct of Great Britain in the situation produced by the
Queen's Proclamation and there is here no room for dis
cussion of any grievance on the part of the United States
from the public act of Great Britain in issuing that Proclama
tion. But nothing in the conduct of the argument on our
part justifies this suggestion of the eminent Counsel.

On the subject of "coaling," it is said that it is not, of
itself, a supply of contraband of war or of military aid.
Not of itself. The grounds and occasions on which we com
plain of coaling, and the question of fact whether it has been
fairly dealt out as between the belligerents, connect them
selves with the larger subject (which is so fully discussed
under this head by the eminent Counsel), a topic of discus
sion of which coaling is merely a branch, that is to say, the
use of neutral ports and waters for coaling, victualling,
repairs, supplies of sails, recruitment of men for navigation,
etc. These may or may not be obnoxious to censure under
the law of nations according as they have relation or not
with facts and acts which, collectively, make up the use of
the neutral ports and waters as "the bases of naval opera
tions" by belligerents. Accordingly, the argument of the em
inent Counsel does not stop with so easy a disposition of the
subject of coaling, but proceeds to discuss the whole question
of base of operations, — what it means, what it does not
mean, the inconvenience of a loose extension of its meaning,
— the habit of the United States in dealing with the question
both in acts of Government and the practice of its cruisers, —
the understanding of other nations, giving the instances
arising on the correspondence with Brazil on the subject of
the "Sumter"; and produces as a result of this inquiry the

616 SPEECHES OF WILLIAM MAXWELL EVARTS

conclusion, that it was not the intention of the second rule
of the treaty to limit the right of asylum.

In regard to the special treatment of this subject of coal
ing provided by the regulations established by the British
Government in 1862, it is urged that they were voluntary
regulations, that the essence of them was that they should
be fairly administered between the parties, and that the
rights of asylum or hospitality in this regard should not be
exceeded. Now, this brings up the whole question of the use
of neutral ports or waters as a "base of naval operations"
which is proscribed by the second rule of the treaty.

You will observe that while the first rule applies itself
wholly to the particular subject of the illegal outfit of a vessel
which the neutral had reasonable ground to believe was to
be employed to cruise, etc., or to the detention in port of a
vessel that was in whole or in part adapted for war — while
the injunction and duty of the first rule are thus limited,
and the violation of it, and the responsibility consequent
upon such violation, are restricted to those narrow subjects,
the proscription of the second rule is as extensive as the
general subject, under the law of nations, of the use of ports
and waters of the neutral as the basis of naval operations,
or for the renewal or augmentation of military supplies, or
the recruitment of men.

What, then, is the doctrine of hospitality or asylum, and
what is the doctrine which prohibits the use (under cover of
asylum, under cover of hospitality, or otherwise) of neutral
ports and waters as bases of naval operations? It all rests
upon the principle that, while a certain degree of protection
or refuge, and a certain peaceful and innocent aid, under the
stress to which maritime voyages are exposed, are not to be
denied, and are not to be impeached as unlawful, yet any
thing that under its circumstances and in its character is the
use of a port or of waters for naval operations, is proscribed,
although it may take the guise, much more if it be an abuse,
of the privilege of asylum or hospitality.

THE ALABAMA CLAIMS 617

There is no difference in principle, in morality, or in duty,
between neutrality on land and neutrality at sea. What,
then, are the familiar rules of neutrality within the territory
of a neutral, in respect to land warfare?

Whenever stress of the enemy, or misfortune, or cowardice,
or seeking an advantage of refreshment, carries or drives
one of the belligerents or any part of his forces over the fron
tier into the neutral territory, what is the duty of the neutral?
It is to disarm the forces and send them into the interior till
the war is over. There is to be no practicing with this ques
tion of neutral territory. The refugees are not compelled
by the neutral to face their enemy; they are not delivered
up as prisoners of war; they are not surrendered to the
immediate stress of war from which they sought refuge.
But from the moment that they come within neutral ter
ritory they are to become non-combatants, and they are to
end their relations to the war. There are familiar examples
of this in the recent history of Europe.

What is the doctrine of the law of nations in regard to
asylum, or refuge, or hospitality, in reference to belligerents
at sea during war? The words themselves sufficiently
indicate it. The French equivalent of reldche forcee equally
describes the only situation in which a neutral recognizes
the right of asylum and refuge ; not in the sense of shipwreck,
I agree, but in the sense in which the circumstances of
ordinary navigable capacity to keep the seas, for the purposes
of the voyage and the maintenance of the cruise, render the
resort of vessels to a port or ports suitable to, and convenient
for, their navigation, under actual and bona fide circum
stances requiring refuge and asylum.

There is another topic which needs to be adverted to
before I apply the argument. I mean the distinction
between commercial dealing in the uncombined materials of
war, and the contribution of such uncombined materials of
war, in the service of a belligerent, in making up military

618 SPEECHES OF WILLIAM MAXWELL EVARTS

and naval operations, by the use of neutral territory as the
base of those contributions. What are really commercial
transactions in contraband of war, are allowed by the prac
tice of the United States and of England equally, and are
not understood to be proscribed, as hostile acts, by the law of
nations, and it is agreed between the two countries that the
second rule is not to be extended to embrace, by any large
ness of construction, mere commercial transactions in con
traband of war.

SIR ALEXANDER COCKBURN: Then I understand you to
concede that the private subject may deal commercially
in what is contraband of war?

MR. EVARTS: I will even go further than that and say
that commercial dealings or transactions are not proscribed
by the law of nations, as violations of neutral territory,
because they are in contraband of war. Therefore I do not
need to seek any aid, in my present purpose, of exhibiting
the transactions under the second rule by these cruisers, as
using Great Britain as the base for these naval operations,
from any construction of that rule which would proscribe
a mere commercial dealing in what is understood to be con
traband of war. Such is not the true sense of the article,
nor does the law of nations proscribe this commercial deal
ing as a hostile act. But whenever the neutral ports, places
and markets, are really used as the bases of naval operations,
when the circumstances show that resort and that relation
and that direct and efficient contribution and that com
plicity, and that origin and authorship, which exhibit the
belligerent himself, drawing military supplies for the purpose
of his naval operations from neutral ports, that is a use by a
belligerent of neutral ports and waters as a base of his naval
operations, and is prohibited by the second rule of the treaty.
Undoubtedly the inculpation of a neutral for permitting this
use, turns upon the question whether due diligence has been
used to prevent it.

THE ALABAMA CLAIMS

The argument upon the other side is, that the meaning of
"the base of operations," as it has been understood in
authorities relied upon by both nations, does not permit the
resort to such neutral ports and waters for the purpose of
specific hostile acts, but proceeds no further. The illustra
tive instances given by Lord Stowell, or by Chancellor
Kent, in support of the rule are adduced as being the measure
of the rule. These examples are of this nature: A vessel
cannot make an ambush for itself in neutral waters, cannot
lie at the mouth of a neutral river to sally out to seize its
prey; cannot lie within neutral waters and send its boats to
make captures outside their limits. All these things are
proscribed. But they are given as instances, not of flagrant,
but of incidental and limited use. They are the cases that
the commentators cite to show that even casual, temporary
and limited experiments of this kind are not allowed, and
that they are followed by all the definite consequences of an
offence to neutrality and of displeasure to a neutral, to wit,
the resort by such neutral power to the necessary methods
to punish and redress these violations of neutral territory.

Now, let us see how we may, by examples, contrast the
asylum or hospitality in matter of coal or similar contribu
tions in aid of navigable capacity, with the use of neutral
ports as a base of naval operations.

I will not trespass upon a discussion of questions of fact.
The facts are wholly within your judgment and are not
embraced in the present argument. But take the coaling
of the "Nashville." The "Nashville" left Charleston
under circumstances not in dispute, and I am not now con
sidering whether Great Britain is or is not responsible in
reference to that ship in any other matter than that of coal
ing, which I will immediately introduce to your attention.

The "Nashville" having a project of a voyage from
Charleston, her home port, to Great Britain, in the course
of which she proposed to make such captures as might be,

SMECHES OF WILLIAM MAXWELL EVA&TS

intended originally to carry out Mason and Slidell, but
abandoned this last intention before sailing, as exposing
these Commissioners to unfavorable hazard from the block
ading squadron. This was the project of her voyage, those
the naval operations which she proposed to herself. How
did she prepare within her own territory, to execute that
project of naval warfare? She relied substanially upon
steam, and in order to be sure of going over the bar, under
circumstances which might give the best chance of eluding
the vigilance of the blockaders, she took only two days
supply of coal, which would carry her to Bermuda. The
coal was exhausted when she got there: she there took in
six hundred tons.

SIR ALEXANDER COCKBURN: I believe, Mr. Evarts, that
the figure six afterwards came down to five.

MR. EVARTS: For the purpose of my present argument,
it is quite immaterial.

MR. WAITE: It was subsequently proved to be four hun
dred and fifty tons.

MR EVARTS: Very well. She had no coal and she took
four hundred and fifty tons or more on board to execute the
naval operation which she projected when she left Charles
ton and did not take the means to accomplish, but relied
upon getting them in a neutral port to enable her to pursue
her cruise. Now, the doctrine of reldche forcSe, or of refuge,
or of asylum, or of hospitality, has nothing to do with a
transaction of that kind. The vessel comes out of a port of
safety, at home, with a supply from the resources of the
belligerent that will only carry it to a neutral port, to take
in there the means of accomplishing its projected naval
operations. And no system of relief in distress, or of allow
ing supply of the means of taking the seas for a voyage
interrupted by the exhaustion of the resources originally
provided, have anything to do with a case of this kind. It
was a deliberate plan, when the naval operation was medi-

THE ALABAMA CLAIMS 621

tated and concluded upon, to use the neutral port as a base of
naval operations, which plan was carried out by the actual
use of neutral territory as proposed.

Now we say, that if this Tribunal, upon the facts of that
case, shall find that this neutral port of Bermuda was planned
and used as the base of the naval operations, projected at
the start of the vessel from Charleston, that that is the use of
a neutral port as a base for naval operations. On what
principle is it not? Is it true that the distance of the pro
jected naval operation, or its continuance, makes a difference
in principle, as to the resort to establish a base in neutral
territory or to obtain supplies from such a base? Why,
certainly not. Why, that would be to proscribe the slight
and comparatively harmless abuses of neutral territory, and
to permit the bold, impudent and permanent application of
neutral territory to belligerent operations. I will not delay
any further upon this illustration.

Let us take next the case of the "Shenandoah," separating
it from any inquiries as to culpable escape or evasion from the
original port of Liverpool. The project of the "Shenan-
doah's" voyage is known. It was formed within the Con
federate territory. It was that the vessel should be armed
and supplied — that she should make a circuit, passing round
Cape Horn or the Cape of Good Hope — that she should put
herself, on reaching the proper longitude, in a position to
pursue her cruise to the Arctic Ocean, there to make a prey
of the whaling fleet of the United States. To break up
these whaling operations and destroy the fleet, was planned
under motives and for advantages which seemed to that
belligerent to justify the expense, and risk, and perils of the
undertaking. That is the naval operation, and all that was
done inside the belligerent territory, was to form the project
of the naval operation and to communicate authority to
execute it to the officers who were outside of that territory.

Now, either the "Shenandoah," if she was to be obtained,

622 SPEECHES OF WILLIAM MAXWELL EVARTS

prepared, armed, furnished, and coaled for that extensive
naval operation, was to have no base for it at all, or it was
to find a base for it in neutral ports. It is not a phantom
ship, and it must have a base. Accordingly, as matter of
fact, all that went to make up the execution of that operation
of maritime war, was derived from the neutral ports of
Great Britain. The ship was thence delivered and sallied
forth—

SIR ALEXANDER COCKBURN: But that was not known
to the Government.

MR. EVARTS: I am now only showing that this occurred
as matter of fact. The question whether it was known to,
or permitted by, the Government of Great Britain, as the
Chief Justice suggests, is of an entirely different aspect,
involving the considerations of due diligence to prevent.

The ship, then, was furnished from neutral ports and
waters. It resorted to Madeira to await the arrival of the
"Laurel," which, by concert and employment in advance of
the sailing of the "Shenandoah," was to take the armament,
munitions of war, officers and a part of the crew to complete
the " Shenandoah's" fitness to take the seas as a ship of war
to execute the naval project on which she originally sailed,
and which were transferred from ship to ship at sea. The
island of Madeira served only as rendezvous for the two ves
sels and if there had been occasion, as in fact there was not,
might have furnished shelter from storms. Thus made a
fighting ship from these neutral ports, as a base, and fur
nished from the same base with the complete material for the
naval operation projected, the "Shenandoah" made cap
tures, as without interruption of her main project she might,
rounded the Cape of Good Hope and came to Melbourne,
another British port, whence she was to take her last de
parture for her distant field of operations, the waters of the
whaling fleet of the United States in the Arctic Ocean.

SIR ROUND ELL PALMER: I did not, Mr. Evarts, enter
upon a treatment of each of the vessels.

THE ALABAMA CLAIMS 623

MR. EVARTS: I am only showing that this ship did use
your ports for the purposes of its operations.

SIR ROUNDELL PALMER: But, Mr. Evarts, I only men
tioned these vessels.

MR. EVARTS: You discussed the question of base of
naval operations.

There she obtained as matter of fact four hundred and
fifty tons of coal, or something of that kind, and forty men,
and without both of these, as well as important repairs of
her machinery, she could hot have carried out the naval pro
ject oh which she had started. The coal taken at Mel
bourne was sent by appointment from Liverpool, and was
there to complete her refitment. The naval operation would
have failed if the vessel had not received the replenishment
of power and resources at Melbourne as a base. Now, this
"Shenandoah" was able to sail sixteen knots an hour.

SIR ALEXANDER COCKBURN: Do you mean to say six
teen knots an hour? That is faster than any vessel I have
ever heard of.

MR. EVARTS: Well, we will not dispute about the facts.
There is no doubt, however, that it is so, — she sailed on
one occasion over three hundred and twenty miles in twenty-
four hours.

LORD TENTERDEN: But that is not sixteen knots an hour.

MR. EVARTS: I have not said that she had sailed twenty-
four consecutive hours at the rate of sixteen knots. But she
could sail sixteen knots an hour, and she could only steam
ten knots an hour. I have not invented this. Her remark
able qualities are stated in the proofs. Her steam power
was not necessary to her navigation or her speed, however,
except to provide against calms, and give assurance of con
stancy of progress in adverse weather. Her great advan
tage, however, was in being one of the fastest sailing ships
ever built. The great importance of her having abundance
of coal at the contemplated scene of her naval operations

624 SPEECHES OF WILLIAM MAXWELL EVARTS

was, that she might capture these poor whalers, who under
stood those perilous seas, and if they could only get up steer
age way, would be able to elude her.

SIR ALEXANDER COCKBURN: What! if she sailed six
teen knots an hour!

MR. EVARTS: If the Chief Justice will mark the circum
stances of Arctic navigation, he will understand that by
means of their knowledge of the ice, and the region gener
ally, they could seek shelter by interposing barriers between
themselves and their pursuer. They did, however, become
her prey; but it was only when she found them becalmed.
Now, this case of the "Shenandoah" illustrates, by its career,
on a large scale, the project of a belligerent in maritime war,
which sets forth a vessel and furnishes it complete for war,
plans its naval operations and executes them, and all this
from neutral ports and waters, as the only base, and as a suffi
cient base. Melbourne was the only port from which the
"Shenandoah" received anything after its first supply from
the home ports of Great Britain, and it finally accomplished
the main operation of its naval warfare by means of the coal
ing, and other refitment at Melbourne. Whether it could
rely for the origin of its naval power, and for the means of ac
complishing its naval warfare, upon the use of neutral ports
and waters, under the cover of commercial dealings in contra
band of war, and under the cover of the privilege of asy
lum, was the question which it proposed to itself and which
it answered for itself. It is under the application of these
principles that the case of the "Shenandoah" is supposed to
be protected from being a violation of the law of nations,
which prohibits the use of ports and waters of a neutral as a
base of naval operations. I do not propose to argue upon
the facts of the case of the "Shenandoah," but only to sub
mit the principles on which they are to be considered.

SIR ALEXANDER COCKBURN: I would like to ask you,
Mr. Evarts, whether your proposition involves this: that

THE ALABAMA CLAIMS 625

every time a belligerent steam- vessel puts into a neutral port
for the purpose of getting coal, and then goes forward upon
her further object of war, that there is a violation of neutral
territory. I just want to draw your attention to this point.
What I want to understand is, what difference there is be
tween the ships of one nation and the ships of another na
tion, as regards this matter of coal. Would the principle
of your argument apply to the vessels of other belligerents?

MR. EVARTS: Of course, it is to be applied to all bellig
erents, and when the case arises for complaint it is to be
judged in view of all the facts and circumstances, whether it
falls within the license of hospitality, or whether it is a re
sort as to a base of operations, that is to say, whether the
whole transaction, in all its features amounts to a concerted
and planned use.

SIR ALEXANDER COCKBURN: Planned by whom?

MR. EVARTS: Why, planned by the belligerent.

SIR ALEXANDER COCKBURN: A ship goes into a neutral
port without intimating its purpose or disclosing whether it
belongs to one belligerent or another.

MR. EVARTS: Take the case of the "Nashville."

LORD TENTERDEN: Take the "Vanderbilt."

SIR ALEXANDER COCKBURN: Well, let us take that case.
She goes into a neutral port and wants coal for the purpose
of going forth again on her mission of war. No question
is asked. The ship, I grant you, comes with the object of
getting coal for the purpose of going out on her errand of
war, and, in one sense, uses neutral territory as a base.
But the neutral knows nothing about the course of the ves
sel, or its destination, except he takes it for granted it is a
ship of war. How can he be said to allow the territory to be
made a base of operations, except so far as it applies to the
ships of a belligerent?

MR. EVARTS: It does apply; but I have not said that this
alone rendered the neutral responsible. I have merely laid

42

626 SPEECHES OF WILLIAM MAXWELL EVARTS

down the facts. The magnitude of the operations and the
completeness of their relations to the base of supplies, do not
alter the application of principles. After all there is left, of
course, the question of whether you have suffered or allowed
these things, or have used due diligence to prevent them, and
upon the discussion of that subject I shall not trespass.

SIR ALEXANDER COCKBURN: But that is the very ques
tion.

MR. EVARTS: But that question could not arise until it
was determined whether the belligerent had, as matter of
fact, made the neutral port a base of operations. All that
I have said has been intended to show that what was done
by these cruisers did make the neutral ports a base, just as
much as if a shallop was stationed at the mouth of a neutral
river, and sent out a boat to commit hostilities: In either
case, the neutral is not responsible, unless it has failed to
exercise due diligence. But there is this further conse
quence carrying responsibility, that when the neutral does
not know of such an act until after it has been committed,
it is its duty to resent it and to prevent its repetition, and to
deny hospitality to the vessels that have consummated it.
Now, these questions can certainly be kept distinct. If the
fact is not known, and if there is no want of due diligence,
then the neutral is not in fault. If the facts are afterwards
known, then the cruiser that has committed the violation of
neutrality is to be proscribed, to be denied hospitality, to be
detained in port, or excluded from port, after notice, or
without notice, as the case may be.

The question then arises whether a nation, thus dealt with
by a belligerent, and having the power to stop the course of
naval operations thus based, if it purposely omits so to do,
does not make itself responsible for their continuance. I
do not desire to be drawn into a discussion upon the facts
which is not included in the range of the present argument.
I, now, am simply endeavouring to show that the illustra-

THE ALABAMA CLAIMS 627

tions of Kent and Stowell taken from navigation, and mari
time war, then prevailing, do not furnish the rule or the
limit of the responsibility of neutrals in respect of allowing
such use of naval bases, nor of the circumstances which make
up the prohibited uses of neutral ports for such bases.

I proceed to another branch of the subject.*

It is said that the concerted setting forth of the "Laurel"
from the neutral port, to carry the armament and the muni
tions of war and the officers and the crew to be combined out
side the neutral jurisdiction with the " Shenandoah," al
ready issued from another port of the same neutral, is only a
dealing in contraband of war. I deny that such a transaction
has any connection with dealing in contraband of war. It
is a direct obtaining by a projected cruiser of its supply
of armament, munitions and men and officers from a neutral
port.

There may be no fault on the part of the neutral in not
preventing it. That will depend on the question of "due
diligence to prevent," "reasonable ground to believe," etc.
But the principle of contraband of war does not protect such
a transaction, and that is the only principle that has been ap
pealed to by the British Government, in the discussions of
this matter to justify it. The facts of this vessel going out
were known, —

SIR ALEXANDER COCKBURN: Not until afterwards.

MR. EVARTS: The law of nations was violated, your ter
ritory had been used, as matter of fact, we claim, as the base

* In connection with this discussion, I ask attention to the course taken by the
Government of Brazil in resentment and punishment for the incidental violation
of its neutrality by the "Florida" (within the neutral waters) and by the "Shenan
doah," by her commander violating the Consular seal of Brazil on board one of the
"Shenandoah's" prizes. In both instances, the offending cruisers were perpetually
excluded from the ports of the empire; and the exclusion embraced any other
cruiser that should be commanded by the captain of the "Shenandoah."

The treatment of the "Rappahannock" by the French Government, which
detained her in port till the close of the war, is well worthy of attention. The
transaction is detailed in the App. Am, Cpunter-Case, pp. 917-946.

628 SPEECHES OF WILLIAM MAXWELL EVARTS

of naval operations, and it was not a dealing in contraband of
war. It was not a commercial transaction. It was a direct
furnishing of a cruiser with armament from your port.
It might as well have been accomplished within three miles
of your coast. Yet, it is said this is no offence against your
law.

SIR ALEXANDER COCKBURN: I do not say that.

MR. EVARTS: Unfortunately for the United States,
through the whole war, we had quite other doctrine from
those who laid down the law for Great Britain in these mat
ters. Fortunately, we have better doctrine here and now.
But according to the law as administered in England such
combinations of the materials of naval war could be made
outside of her ports, by the direct action of the belligerent
Government, deriving all the materials from her ports and
planning thus to combine them outside.

SIR ALEXANDER COCKBURN: If that had been shown.

MR. EVARTS: The proofs do show it, and that the doc
trine was, that it was lawful and should not be interfered
with.

I disclaim any desire or purpose of arguing upon the facts
of particular vessels. I am merely laying down principles
applicable to supposed facts. If the principles were con
ceded, I would have no occasion to deal with questions of
fact at all.

The learned Chief Justice has, very satisfactorily, cer
tainly, to us, presently expressed certain legal opinions on
this subject; but I must say that they were not entertained
by the Government of Great Britain, and did not control its
action.

I think that the proofs before the Tribunal can be easily
referred to, to confirm the position I have taken, as to the
legal doctrine held in England in reference to this subject of
the base of operations. In contradiction of that doctrine,
we now insist, as our GQyerjiment all through the war in-

THE ALABAMA CLAIMS 629

sisted, this is not dealing in contraband of war; it is using
neutral territory as a base of operations. Whether there
was, or should be, no responsibility for it, because it was not
known or could not be prevented, is an entirely different
question. But I undertake to say as matter of fact, that the
doctrine of the English law, during all those proceedings,
was, that such projects and their execution as a contributory
concurrence with the outfit of the principal cruisers for naval
operations (such cases as those of the "Laurel," the "Alar,"
the "Agrippina," the "Bahama" and similar vessels) were
lawful and could not and should not be prevented.

SIR ALEXANDER COCKBURN: I would be very much
obliged if you will refer me to some authority for that.

MR. EVARTS: I will. One of the arbitrators (Mr.
Adams) from his knowledge of the course of the corres
pondence, knows that I do not deceive myself in that respect.
It is this contributory furnishing of armament, and muni
tions, and men, which rendered the principal cruisers effi
cient instruments of all the mischief, and without which their
evasions from port were of little consequence, and, without
the expectation of which, they never would have been
planned.

I now refer to a paper that will show that I have been right
in my proposition as to the construction of English law as
held during the occurrence of these transactions.

In Vol. Ill of American Appendix (p. 53), in a report to
the Board of Trade by the Commissioners of Customs, oc
curs this passage:

CUSTOM HOUSE, September 25, 1862.

Your lordships having, by Mr. Arbuthnot's letter of the 16th
instant, transmitted to us, with reference to Mr. Hamilton's
letter of the 2d ultimo, the enclosed communication from the
Foreign Office, with copies of a further letter and its enclosures
from the United States Minister at this Court, respecting the sup
ply of cannon and munitions of war to the gunboat No. 290,

630 SPEECHES OF WILLIAM MAXWELL EVARTS

recently built at Liverpool, and now in the service of the so-called
Confederate States of America; and your lordships having desired
that we would take such steps as might seem to be required in view
of the facts therein represented, and report the result to your lord
ships, we have now to report :

That, assuming the statement set forth in the affidavit of Red-
din (who sailed from Liverpool in the vessel) which accompanied
Mr. Adams's letter to Earl Russell, to be correct, the furnishing of
arms, etc., to the gun-boat does not appear to have taken place
in any part of the United Kingdom or of her Majesty's dominions,
but in or near Angra Bay, part of the Azores, part of the Portuguese
dominions. No offence, therefore, cognizable by the laws of this
country, appears to have been committed by the parties engaged in
the transaction alluded to in the affidavit.

From Lord Russell's communication of this report to the
American Minister, it will be seen that the accepted opinion
of the Government was that such operations could not be
interfered with, and therefore would not be interfered with.
That may be a correct view of the Foreign Enlistment Act
of Great Britain, and, hence, the importance of reducing the
obligations of a neutral nation to prevent violations of
international law to some settled meaning.

This was done by convention between the High Contract
ing Parties and appears in the rules of the treaty. Under
these rules is to be maintained the inculpation which we
bring against Great Britain, and which I have now dis
cussed because the subject is treated in the special argument
to which I am replying. The instances of neutral default
announced under the second rule, are made penal by the
law of nations. They are proscribed by the second rule.
They are not protected as dealings in contraband of war.
They are not protected under the right of asylum. They
are uses of neutral ports and waters as bases of naval opera
tions, and if not prohibited by the Foreign Enlistment Act,
and if the British Executive Government could not and would
not prevent them, and that was the limit of their duty under

THE ALABAMA CLAIMS 631

their Foreign Enlistment Act, still we come here for judg
ment, whether a nation is not responsible that deals thus in
the contribution of military supplies, that suffers ship after
ship to go on these errands, makes no effort to stop them, but,
on the contrary, announces, as the result of the deliberation
of the law officers, to the subordinate officials, to the Min
ister of the United States, to all the world, that these things
are not prohibited by the law of Great Britain, and cannot be
prohibited by the Executive Government, and, therefore,
cannot and will not be stopped. That this was the doctrine
of the English Government will be seen from a letter dated
the 2d of April, 1863, of Lord Russell, found, in part, in
Vol. II, American Appendix, page 404; and, in part, in
Vol. I, ibid., page 590:

But the question really is, has there been any act done in Eng
land both contrary to the obligations of neutrality as recognized by
Great Britain and the United States, and capable of being made the
subject of a criminal prosecution? I can only repeat that, in the
opinion of Her Majesty's Government, no such act is specified in
the papers which you have submitted to me.

*****

I, however, willingly assure you that, in view of the statements
contained in the intercepted correspondence, Her Majesty's Gov
ernment have renewed the instructions already given to the custom
house authorities of the several British ports where ships of war may
be constructed, and by the Secretary of State for the Home De
partment to various authorities with whom he is in communica
tion, to endeavor to discover and obtain legal evidence of any vio
lation of the Foreign Enlistment Act, with a view to the strict en
forcement of that statute whenever it can really be shown to be
infringed.

*****

It seems clear, on the principle enunciated in these authorities,
that, except on the ground of any proved violation of the Foreign
Enlistment Act, Her Majesty's Government cannot interfere with
commercial dealings between British subjects and the so-styled

632 SPEECHES OF WILLIAM MAXWELL EVARTS

Confederate States, whether the subject of those dealings be money
or contraband goods, or even ships adapted for warlike purposes.

These were instances in which complaints were made of
these transactions, and in which it was answered that the
British Government charged itself with no duty of due dili
gence, with no duty of remonstrance, with no duty of pre
vention or denunciation, but simply with municipal prose
cutions for crimes against the Foreign Enlistment Act.

What I have said of the "Shenandoah," distinguished her
from the "Florida," and the "Alabama," and the "Georgia,"
only in the fact that, from the beginning to the end of the
" Shenandoah's" career, she had no port of any kind, and
had no base of any kind, except the ports of the single nation
of Great Britain. But as to the "Florida" and the "Ala
bama," one (the "Alabama") was supplied by a tug, or
steamer, that took out her armament to Angra Bay, the
place of her first resort; the other (the "Florida") was sup
plied by a vessel sent out to Nassau to meet her, carrying all
her armament and munitions of war, and which she took out
in tow, transhipping her freight of war material outside the
line of neutral waters.

That is called dealing in contraband, not proscribed by the
law of nations, not proscribed by any municipal law, and
not involving any duty of Great Britain to intercept, to dis
courage or denounce it. That is confounding substance with
form. But let me use the language of an Attorney-General
of England, employed in the Parliamentary discussions which
attended the enactment of the Foreign Enlistment Act of
1819.

From this debate in Parliament, it will be seen what the
principal law adviser of the Crown then thought of carrying
on war by commercial transactions. He said :

Such an enactment was required by every principle of justice;
for when the State says, "We will have nothing to do with the war
waged between two separate powers," and the subjects in opposi-

THE ALABAMA CLAIMS 633

tion to it say, "We will, however, interfere in it," surely the House
would see the necessity of enacting some penal statutes to prevent
them from doing so; unless, indeed it was to be contended, that the
State and the subjects who composed that State, might take dis
tinct and opposite sides in the quarrel. He should now allude to
the petitions which had that evening been presented to the House
against the bill; and here he could not but observe, that they had
either totally misunderstood or else totally misrepresented its
intended object. They had stated that it was calculated to check
the commercial transactions and to injure the commercial interests
of this country. If by the words "commercial interests and com
mercial transactions" were meant "warlike adventures," he al
lowed that it would; but if it were intended to argue that it would
diminish a fair and legal and pacific commerce, he must enter his
protest against any such doctrines. Now, he maintained, that as
war was actually carried on against Spain by what the petitioners
called "commercial transactions," it was the duty of the House to
check and injure them as speedily as possible. (Note B, American
Argument, p. 508; Fr. tr. Appendice, p. 488.)

War against the United States, maritime war, was carried
on under cover of what was called right of asylum and com
mercial transactions in contraband of war. We are now
under the law of nations, by virtue of this second rule, which
says that the use of "ports and waters as the base of naval
operations, or for the purpose of the renewal or augmenta
tion of military supplies or arms or the recruitment of men"
shall not be allowed, and if the facts of such dealing shall be
found, and the proof of due diligence to prevent them shall
not appear in the proofs, under that second rule all four of
these cruisers must be condemned by the Tribunal.

I do not pass, nor venture to pass, in the present argu
ment, upon the question whether there has been in this mat
ter a lack of due diligence. In the discussion of my learned
friend every one of these instances is regarded as a case not
within the second rule, and as a simple dealing in contra
band of war.

634 SPEECHES OF WILLIAM MAXWELL EVARTS

SIR ROUNDELL PALMER: I must be permitted to say that
I have not felt myself at liberty to go into a discussion of
individual cases.

MR. EVARTS: The vessels are treated in the argument of
the learned Counsel.

SIR ROUNDELL PALMER: There may be passages in
reference to some of the principal topics which have been
mentioned, but I have avoided entering upon any elaborate
consideration of each particular vessel. There is no distinct
enumeration of the vessels.

MR. EVARTS: There is, so distinct as this; it is expressly
stated that under the law neither the "Georgia," nor the
"Shenandoah," nor the subsidiary vessels that carried their
armaments to the "Georgia" and "Shenandoah," and to the
"Florida" and "Alabama," had, in so doing, committed a
breach of neutrality.

I am arguing now under the second rule. I have not felt
that I was transcending the proper limits of this debate, be
cause, in answer to the special argument of the eminent
Counsel, I have argued in this way. My own view as to
the extension of the argument of the learned Counsel in his
discussion of what is called "due diligence," as a doctrine
of the law of nations, would not have inclined me to expect
so large a field of discussion as he covered. But, as I have
admitted in my introductory remarks, the question of due
diligence connects itself with the measure of duty and the
manner in which it was performed, and I felt no difficulty in
thinking that the line could not be very distinctly drawn.

I have undertaken to argue this question under a state of
facts, which shows that a whole naval project is supplied,
from the first outfit of the cruiser to the final end of the cruise,
by means of this sort of connection with neutral ports and
waters as a base of naval operations; and I have insisted
that such naval operations are not excluded from the pro
scription of the second rule, by what is claimed in the argu-

THE ALABAMA CLAIMS 635

ment of the learned Counsel, as the doctrine of contraband
of war and the doctrine of asylum.

SECOND DAY, AUGUST 6, 1872

I was upon the point of the doctrine of the British Govern
ment, and its action under that doctrine, as bearing upon
the outfit of the contributory provisions of armament,
munitions, and men, set forth in such vessels as the "Ba
hama," the "Alar," and the "Laurel." The correspond
ence is full of evidence that I was correct in my statement
of the doctrine of the British Government, and of its action
from beginning to end being controlled by that doctrine;
and all the remonstrances of the United States were met by
the answer that the law of nations, the Foreign Enlistment
Act, the duty of neutrality, had nothing whatever to do
with that subject, as it was simply dealing in contraband of
war. The importance of this view, of course, and its im
mense influence in producing the present controversy
between the two nations, are obvious. The whole mischief
was wrought by the co-operating force of the two legal
propositions: (1) that the unarmed cruiser was not itself a
weapon of war, an instrument of war, and, therefore, was
not to be intercepted as committing a violation of the law of
nations; and (2) that the contributory provision by means
of her supply ships, of her armament, munitions, and men,
to make her a complete instrument of naval hostilities, was
also not a violation of the law of nations, but simply a com
mercial dealing in contraband. It was only under those
combined doctrines that the cruiser ever came to be in the
position of an instrument of offensive and defensive war,
and to be able to assume the "commission" prepared for
her, and which was thenceforth to protect her from interfer
ence on the doctrine of comity to sovereignty.

So, too,, it will be found, when we come to consider the
observations of the eminent Counsel on the subject of due

636 SPEECHES OF WILLIAM MAXWELL EVARTS

diligence, to which I shall have occasion soon to reply, that
the question whether these were hostile acts, under the law
of nations, was the turning point in the doctrine of the
Government of Great Britain, and of its action, as to whether
it would intercept these enterprises by the exercise of execu
tive power, as a neutral government would intercept any
thing in the nature of a hostile act under the law of nations.
The doctrine was that these were not hostile acts separately,
and that no hostile act arose unless these separate contribu
tions were combined in the ports of Great Britain; that
there was no footing otherwise for the obligation of the law
of nations to establish itself upon ; that there was no remiss-
ness of duty on the part of the neutral in respect of them;
and finally that these operations were not violations of the
Foreign Enlistment Act. All this is shown by the whole
correspondence, and by the decisions of the municipal
courts of England, in regard to the only question passed
upon at all, that of unarmed vessels, so far as they ever
passed even upon that question.

It has seemed to be intimated by observations which the
learned Counsel has done me the honor to make during my
present consideration of this topic, that my argument has
transcended the proper limit of reply to the special argu
ment which the eminent Counsel himself has made on the
same topic. A reference to the text of that argument will,
I think, set this question at rest

In the fifteenth section of the first chapter of his argu
ment, he does us the honor to quote certain observations in
our principal argument to which he proposes to reply. He
quotes, at page 17 of his argument, as follows:

(2) The next great failure of Great Britain "to use due dili
gence to prevent" the violation of its neutrality, in the matters
within the jurisdiction of the Tribunal, is shown in its entire omis
sion to exert the direct executive authority, lodged in the Royal
Prerogative, to intercept the preparations and outfits of the offend-

THE ALABAMA CLAIMS 637

ing vessels, and the contributory provisions, of armament, muni
tions and men, which were emitted from various ports of the
United Kingdom. ;,,.»

We do not find in the British case or counter-case, any serious con
tention, but that such powers as pertain to the prerogative, in the
maintenance of international relations, and are exercised as such
by other great powers, would have prevented the escape of every
one of the offending vessels emitted from British ports, and pre
cluded the subsidiary aids of warlike equipment and supplies
which set them forth, and kept them on foot, for the maritime
hostilities which they maintained.

The comment of the learned Counsel upon this passage is
found on the same page (17) of his argument, as follows:

With respect to the second passage, it is to be observed, that it
not only imputes as a want of due diligence, the abstinence from
the use of arbitrary power to supply a supposed deficiency of legal
powers, but it assumes that the United States had a right, by inter
national law, to request Great Britain to prevent the exportation
from her territory of what it describes as " contributory provisions,"
arms, munitions, and "subsidiary aids of warlike equipment and
supplies," though such elements of armament were uncombined,
and were not destined to be combined, within British jurisdiction,
but were exported from that territory under the conditions of
ordinary exports of articles contraband of war. For such a preten-
tion no warrant can be found, either in international law, or in
any municipal law of Great Britain, or in any one of the three
rules contained in the sixth article of the treaty of Washington.

I respectfully submit, therefore, that in the observations
I have had the honor to make upon this subject, I can
hardly be said to have exceeded the due limits of an argu
ment in reply. I fail to find in what the eminent Counsel
here advances in behalf of his Government, any answer to
my assertion that, during the whole course of the war (a
period when he, as Solicitor General or as Attorney General
pf England, was one of the law advisers of the Government),

638 SPEECHES OF WILLIAM MAXWELL EVARTS

the action of Great Britain was governed by the doctrine
which I have stated. This was publicly announced and it
was so understood by the rebel agents, by the interests
involved in these maritime hostilities, by the United States
Minister, by the officials of the British Government, by
everybody who had to act, or ask for action, in the premises.

The first instance arising was of the vessel that carried
out the armament and munitions for the "Alabama," and
the answer was as I read from the report of the Commission
ers of Customs to the Board of Trade. This official paper
stated that the commissioners found nothing in that affair
that touched the obligations of Great Britain. This was
communicated to Mr. Adams, and that, thenceforth, was
the doctrine and action of the Government of Great Britain.

The view of an eminent publicist on this point, as a ques
tion of international law, may be seen from an extract found
at page 177 of the case of the United States. M. Rolin-
Jacquemyns says:

H nous semble que Tadoption d'une pareille proposition equivau-
drait a I'inclination d'un moyen facile d'eluder la regie qui declare
incompatible avec la neutralite d'un pays Torganisation, sur son
territoire d'expeditions militaires au service d'un des belligerants.
H suffira, s'il s'agit d'une entreprise maritime, de faire partir en
deux ou trois fois les elements qui la constituent; d'abord le
vaisseau, puis les hommes, puis les armes, et si tous ces elements
ne se rejoignent que hors des eaux de la puissance neutre qui
les a laisses partir, la neutralite sera intacte. Nous pensons que
cette interpretation de la loi Internationale n'est ni raisonable,
ni equitable.

It will be, then, for the Tribunal to decide what the law
of nations is on this subject. If the Tribunal shall assent
to the principles which I have insisted upon, and shall find
them to be embraced within the provisions of the three
rules of this treaty, and that the facts in the case require the
application of these principles, it stands admitted that

THE ALABAMA CLAIMS 639

Great Britain has not used and has refused to use any means
whatever for the interruption of these contributory pro
visions of armament and munitions to the offending cruisers.

It is not for me to dispute the ruling of the eminent law
yers of Great Britain upon their Foreign Enlistment Act;
but, for the life of me, I cannot see why the "Alar" and the
"Bahama" and the "Laurel," when they sailed from the
ports of England with no cargo whatever except the arma
ment and munitions of war of one of these cruisers, and with
no errand and no employment except that of the Rebel
Government, through its agents, to transport these arma
ments and munitions to the cruisers which awaited them,
were not "transports" in the service of one of the belligerents
within the meaning of the Foreign Enlistment Act of Great
Britain. That, however, is a question of municipal law. It
is with international law that we are dealing now and here.
The whole argument to escape the consequences which inter
national law visits upon the neutral for its infractions, has
been, that whatever was blameworthy was so only as an
infraction of the municipal law of Great Britain. And
when you come to transactions of the kind I am now discuss
ing, as they were not deemed violations of the Foreign Enlist
ment Act nor of international law, and as the powers of the
Government by force to intercept, through the exercise of
prerogative, or otherwise, did not come into play, the argu
ment is that there were no consequences whatever to result
from these transactions. They were merely considered as
commercial transactions in contraband of war.

But the moment it is held that these things were forbidden
by the law of nations, then of course it is no answer to say,
you cannot indict anybody for them under the law of Great
Britain. Nor does the law of nations, having laid down a
duty and established its violation as a crime, furnish no
means of redressing the injury or of correcting or punishing
the evil. What course does it sanction when neutral terri-

640 SPEECHES OF WILLIAM MAXWELL EVARTS

tory is violated by taking prizes within it? When the
prize comes within the jurisdiction of the neutral, he is auth
orized to take it from the offending belligerent by force and
release it. What course does it sanction when a cruiser
has been armed within neutral territory? When the vessel
comes within the jurisdiction of the neutral, he is authorized
to disarm it.

Now, our proposition is that these cruisers, thus deriving
their force for war by these outfits of tenders with their
armament and munitions and men, when brought within
the British jurisdiction, should have been disarmed because
they had been armed, in the sense of the law of nations, by
using as a base of their maritime hostilities, or their maritime
fitting for hostilities, the ports and waters of this neutral
state.

Why, what would be thought of a cruiser of the United
States lying off the port of Liverpool, or the port of Ushant
in France, and awaiting there the arrival of a tender coming
from Liverpool, or from Southampton, by pre-arrangement,
with an augmentation of her battery and the supply of her
fighting crew? Would it, because the vessel had not entered
the port of Southampton or the port of Liverpool, be less a
violation of the law of nations which prohibited the augmen
tation of the force of a fighting vessel of any belligerent from
the contributions of the ports of the neutral?

The fourth chapter of this special argument is occupied, as
I have already suggested, with the consideration of the true
interpretation of the rules of the treaty, under general canons
of criticism, and under the light which should be thrown
upon their interpretation by the doctrines and practices of
nations. I respectfully submit, however, that the only
really useful instruction that should be sought, or can be
applied, in aid of your interpretation of these rules, if their
interpretation needs any aid, is to be drawn from the situa
tion of the parties, and the elements of the controversy

THE ALABAMA CLAIMS 641

between them, for the settlement and composition of which
these rules were framed; and this Tribunal was created to
investigate the facts and to apply the rules to them in its
award.

The whole ground of this controversy is expressed in the
firmest and most distinct manner by the statesmen, on both
sides, who had charge of the negotiations between the two
countries, and who could not misunderstand what were the
situation and the field of debate for application to which
the High Contracting Parties framed these rules. And
what were they? Why, primarily, it was this very question
of the various forms of contributory aid from the neutral
ports and waters of Great Britain, by which the Confederate
navy had been made, by which it was armed, by which it
was supplied, by which it was kept on foot, by which, with
out any base within the belligerent territory, it maintained a
maritime war.

Anterior to the negotiation which produced the treaty,
there is this public declaration made by Mr. Gladstone, and
cited on page 215 of the case of the United States, "There
is no doubt that Jefferson Davis and other leaders of the
South have made an army; they are making, it appears,
a navy"

There is the speech of Lord Russell on the 26th of April
1864, also cited on the same page: "It has been usual for a
power carrying on war upon the seas, to possess ports of its
own in which vessels are built, equipped, and fitted, and
from which they issue, to which they bring their prizes, and
in which those prizes, when brought before a court, are either
condemned or restored. But it so happens that in this
conflict, the Confederate States have no ports except those
of the Mersey and of the Clyde, from which they fit out
ships to cruise against the Federals; and having no ports to
which to bring their prizes, they are obliged to burn them
on the high seas." There is, furthermore, the declaration

43

642 SPEECHES OF WILLIAM MAXWELL EVARTS

of Mr. Fish, made as Secretary of State, in his celebrated
despatch of the 25th of September, 1869, in which he dis
tinctly proposes to the British Government, in regard to
the claim of the United States in this controversy, that the
rebel counsels have made Great Britain "the arsenal, the
navy-yard, and the treasury of the insurgent Confederates."

That was the controversy between the two countries, for
the solution of which the rules of this treaty and the delib
erations of this Tribunal were to be called into action; and
they are intended to cover, and do cover, all the forms in
which this use of Great Britain for the means and the
opportunities of keeping on foot these maritime hostilities
was practised. The first rule covers all questions of the
outfit of the cruisers themselves; the second rule covers all
the means by which the neutral ports and waters of Great
Britain were used as bases for the rebel maritime operations
of these cruisers, and for the provision, the renewal or the
augmentation of their force of armament, munitions, and
men. Both nations so agreed. The eminent Counsel for
the British Government, in the special argument to which
I am now replying, also agrees that the second rule, under
which the present discussion arises, is conformed to the pre
existing law of nations.

We find, however, in this chapter of the special argument,
another introduction of the retroactive effect, as it is called,
of these Rules, as a reason why their interpretation should
be different from what might otherwise be insisted upon.
This is but a reappearance of what I have already exposed
as a vice in the argument, viz., that these rules, in respect to
the very subject for which they were framed, do not mean
the same thing as they are to mean hereafter, when new
situations arise for their application. Special methods of
criticism, artificial limits of application are resorted to, to
disparage or distort them, as binding and authoritative
rules, in regard to the past conduct of Great Britain. Why,

THE ALABAMA CLAIMS 643

you might as well tear the treaty in pieces, as to introduce
and insist upon any proposition, whether of interpretation
or of application, which results in the demand that the very
controversy for which they were framed is not really to be
governed by the rules of the treaty.

The concluding observation of this chapter that the invita
tion to other powers to adopt these rules as binding upon
them, contained in the treaty, should discourage a forced
and exaggerated construction of them, I assent to; not so
much upon the motive suggested, as upon the principle that
a forced and exaggerated construction should not be resorted
to, upon either side, upon any motive whatever.

I now come to the more general chapter in the argument
of the learned Counsel, the first chapter, which presents
under forty-three sections, a very extensive and very com
prehensive, and, certainly, a very able criticism upon the
main argument of the United States upon "due diligence,"
and upon the duties in regard to which due diligence was
required and in regard to the means for the performance
of those duties and the application of this due diligence,
possessed by Great Britain. Certainly, these form a very
material portion of the argument of the United States; and
that argument, as I have said, has been subjected to a very
extensive criticism. Referring the Tribunal to our argu
ment itself as furnishing, at least, what we suppose to be a
clear and intelligible view of our propositions, of the grounds
upon which they rest, of the reasoning which supports
them, of the authorities which sustain them, of their appli
cability and of the result which they lead to — the inculpa
tion of Great Britain in the matters now under judgment,
we shall yet think it right to pass under review a few of
the general topics which are considered in this discussion
of "due diligence."

The sections from 7 to 16 (the earlier sections having
been already considered) are occupied with a discussion of

644 SPEECHES OF WILLIAM MAXWELL EVAETS

what are supposed to be the views of the American argu
ment on the subject of prerogative or executive power, as
distinguished from the ordinary administration of authority
through the instrumentality of courts of justice and their
procedure. Although we may not pretend to have as accu
rate views of constitutional questions pertaining to the
nation of Great Britain, or to the general principles of her
common law, or of the effect of her statutory regulations
and of her judicial decisions as the eminent Counsel of her
Britannic Majesty, yet I think it will be found that the
criticisms upon our argument in these respects are not, by
any means, sound. It is, of course, a matter of the least
possible consequence to us, in any position which we
occupy, either as a nation before this Tribunal or as lawyers
in our argument, whether or not the sum of the obligations
of Great Britain in this behalf under the law of nations was
referred for its execution to this or that authority under its
constitution, or to this or that official action under its
administration. One object of our argument has been to
show that, if the sum of these obligations was not performed,
it was a matter of but little importance to us, or to this Tri
bunal, where, in the distribution of administrative duty, or
where, in the constitutional disposition of authority, the
defect, either of power, or in the due exercise of power, was
found to be the guilty cause of the result. Yet, strangely
enough, when, in a certain section of our argument, that is
laid down as one proposition, we are accused by the learned
Counsel of a petitio principii, of begging the question, that
the sum of her obligations was not performed by Great
Britain.

With regard to prerogative the learned counsel seems to
think that the existence of the supposed executive powers
under the British Constitution, and which our argument
has assigned to the prerogative of the Crown, savors of
arbitrary or despotic power. We have no occasion to go

THE ALABAMA CLAIMS 645

into the history of the prerogative of the British Crown, or
to consider through what modifications it has reached its
present condition. When a free nation like Great Britain,
assigns certain functions to be executed by the Crown there
does not seem to be any danger to its liberties from that
distribution of authority, when we remember that Parlia
ment has full power to arrange, modify, or curtail the
prerogative at its pleasure, and when every instrument of
the Crown, in the exercise of the prerogative, is subject to
impeachment for its abuse.

The prerogative is trusted under the British constitution
with all the international intercourse of peace and war, with
all the duties and responsibilities of changing peace to war,
or war to peace, and also in regard to all the international
obligations and responsibilities which grow out of a declared
or actual situation of neutrality when hostilities are pending
between other nations. Of that general proposition there
seems to be no dispute. But it is alleged that there is a
strange confusion of ideas in our minds and in our argument,
in not drawing the distinction between what is thus properly
ascribable to extra territoriality or ad extra administration,
what deals with outward relations and what has to do with
persons and property within the kingdom. This prerog
ative, it is insisted, gives no power over persons and prop
erty within the kingdom of Great Britain, and it is further
insisted that the Foreign Enlistment Act was the whole
measure of the authority of the Government, and the whole
measure therefore of its duty, within the kingdom. It is
said the Government had no power by prerogative to make
that a crime in the kingdom which is not a crime by the law,
or of punishing a crime in any other manner than through
the courts of justice. This of course is sound, as well as
familiar, law. But the interesting question is, whether the
nation is supplied with adequate legislation, if that is to
furnish the only means for the exercise of international duty.

646 SPEECHES OF WILLIAM MAXWELL EVARTS

If it is not so supplied, that is a fault as between the two
nations; if it is so supplied, and the powers are not properly
exercised, that is equally a fault as between the two nations.
The course of the American argument is to show that, either
on the one or the other of the horns of this dilemma, the
actual conduct of the British Government must be impaled.

We are instructed in this special argument as to what, in
the opinion of the eminent Counsel, belongs to prerogative,
and what to judicial action under the statute; but we find
no limitation of what is in the power of Parliament, or in
the power of administration, if adequate parliamentary
provision be made for its exercise. But all this course of
argument, ingenious, subtle and intricate as it is, finally
brings the eminent Counsel around to this point, that by the
common law of England within the realm, there is power
in the Crown to use all the executive authority of the nation,
civil and military, to prevent a hostile act towards another
nation within that territory. That is but another name for
prerogative, there is no statute on that subject, and no writ
from any Court can issue to accomplish that object.

If this is undoubtedly part of the common law of England,
as the learned Counsel states, the argument here turns
upon nothing else but the old controversy between us,
whether these acts were in the nature of hostile acts, under
the condemnation of the law of nations as such, that ought
to have been intercepted by the exercise of prerogative, or
by the power of the Crown at common law, whichever you
choose to call it. The object of all the discussion of the
learned Counsel is continually to bring it back to the point
that within the kingdom of Great Britain, the Foreign
Enlistment Act was the sole authority for action and pre
vention, and if these vessels were reasonably proceeded
against, under the requirements of administrative duty in
enforcing the Foreign Enlistment Act, as against persons
and property for confiscation or for punishment, that was
all that was necessary or proper.

THE ALABAMA CLAIMS 647

SIR ALEXANDER COCKBURN: Am I to understand you
as a lawyer to say that it was competent for the authorities
at the port whence such a vessel escaped to order out troops
and command them to fire?

MR. EVARTS: That will depend upon the question
whether that was the only way to compel her to an obser
vance.

SIR ALEXANDER COCKBURN: I put the question to you
in the concrete.

MR. EVARTS: That would draw me to another subject,
viz., a discussion of the facts. But I will say that it depends
upon whether the act she is engaged in committing comes
within the category of hostile acts.

SIR ALEXANDER COCKBURN: But taking this case, and
laying aside the question of due diligence. The vessel is
going out of the Mersey. Do you say as a lawyer that she
should be fired upon?

MR. EVARTS: Under proper circumstances, yes.

SIR ALEXANDER COCKBURN: But I put the circum
stances.

MR. EVARTS: You must give me the attending circum
stances that show such an act of force is necessary to secure
the execution of the public authority. You do not put in
the element that that is the only way to bring such a vessel
to. If you add that element, then I say yes.

SIR ALEXANDER COCKBURN: She is going out of the
port. They know she is trying to escape from the port. Do
you, I again ask — do you, as a lawyer, say that it would be
competent for the authorities without a warrant, simply
because this is a violation of the law, to fire on that vessel?

MR. EVARTS: Certainly, after the usual preliminaries of
hailing her, and firing across her bows, to bring her to.
Finally, if she insists on proceeding on her way, and thus
raises the issue of escape from the Government, or forcible
arrest by the Government, you are to fire into her. It

648 SPEECHES OF WILLIAM MAXWELL EVARTS

becomes a question whether the Government is to surrender
to the ship, or the ship to the Government. Of course, the
lawfulness of this action depends upon the question whether
the act committed is, under the law of nations, a violation of
the neutrality of the territory, and a hostile act, as it is conceded
throughout this argument, the evasion of an armed ship
would be.

In section sixteen of this argument you will find the state
ment of the learned Counsel on this subject of the executive
powers of the British Government in this behalf :

It is impossible too pointedly to deny the truth of this assumption,
or too pointedly to state that, if any military or naval expeditions,
or any other acts or operations of war, against the United States,
in the true and proper sense of these words, had been attempted
within British territory, it would not have been necessary for the
British Government, either to suspend the Habeas Corpus Act, or
to rely on the Foreign Enlistment Act, in order to enable it to
intercept and prevent by force such expeditions, or such acts or
operations of war. The whole civil police, and the whole naval
and military forces of the British Crown, would have been law
fully available to the Executive Government, by the common law of
the realm, for the prevention of such proceedings.

This is the law of England as understood by the eminent
Counsel who has presented this argument. Given the facts
that make the evasion from the port of Liverpool of the
vessel proposed, a violation of the law of nations, — because
it is a hostile act against the United States, and exposes
Great Britain to responsibility for the violation of neutral
ity, — then, the situation has arisen, in the failure of civil
means, the failure of remonstrance, of arrest and of bringing
to, for firing into the vessel. For certainly, if we have
authority to stop, we are not to have that authority met
and frustrated by the persistence of violent resistance to it.

It certainly makes very little difference to us whether this
authority of the executive to use all its forces for the actual
prevention of the occurrence of these hostile transactions

THE ALABAMA CLAIMS 649

within the realm, is lodged in what he calls the common law
of Great Britain, or is found, as we suppose, in the preroga
tive of the Crown. Nor do I understand this argument,
throughout, to quarrel with the proposition that an armed
ship that should undertake to proceed out of the port of
Liverpool, would be exposed to the exercise of that power;
and, of course, if the proper circumstances arose, even to the
extent to which it has been pushed in answer to the questions
put to me by one of the members of the Tribunal. For, if
the Queen is to use all her power to prevent a hostile act,
and if an armed vessel is, in its evasion of a port, com
mitting a hostile act, that power can be exerted to the point
of firing into such vessel, if necessary, as well as of merely
exerting the slightest touch, if that proves sufficient to
accomplish the object.*

* It would seem to be quite in accordance with the ordinary course of Govern
ments in dealing with armed (or merchant) ships, that refuse obedience to a peace
ful summons of sovereignty to submit to its authority, to enforce that summons by
firing into the contumacious ship.

In "Phillimore," Vol. Ill, pp. 231-234, will be found the orders of the British
Government in the matter of the "Terceira Expedition," and an account of their
execution. Captain Walpole "fired two shots, to bring them to, but they continued
their course. The vessel, on board of which was Saldanha, although now within
point blank range of the 'Ranger's' guns, seemed determined to push in at all
hazards. To prevent him from effecting his object, Captain Walpole was under the
necessity of firing a shot at the vessel, which killed one man and wounded another."
P. 232.

The eighth article of the Biazilian Circular of June 23, 1863, provides for the
necessary exhibition of force, as follows:

"8. Finally, force shall be used (and in the absence or insufficiency of this, a
solemn and earnest protest shall be made) against a belligerent who, on being
notified and warned, does not desist from the violation of the neutrality of the Empire.
Forts and vessels of war shall be ordered to fire on a belligerent, who shall," etc. — 7
Am. App., p. 113.

Indeed, there is no alternative, unless the solution of the difficulty laid down by
Dogberry is preferred:

"Dogberry. You are to bid any man stand in the prince's name.

"Watch. How if he will not stand?

"Dogberry. Why, then, take no note of him, but let him go; and presently
call the rest of the watch together, and thank God you are rid of a knave." Shakes
peare, Much Ado about Nothing, Act III, section 3.

650 SPEECHES OF WILLIAM MAXWELL EVARTS

Sections 17 to 25 are occupied with a discussion concern
ing the preventive powers and punitive powers under the
legislation of Great Britain as compared with that of the
United States. While there is here a denial that the British
Government ever put itself upon a necessary confinement to
the punitive powers of that act, or that that act contains no
preventive power, or that it contains not so much as the act of
the United States, still, after all, I find no progress made
beyond this: that the preventive powers, thus relied upon
and thus asserted, as having origin under, and by virtue of,
the act, are confined to the prevention that springs out of
the ability to punish, or out of the mode in which the power
to punish is exercised.

Nor will the text of the Foreign Enlistment Act furnish
any evidence that it provides any power for the prevention
by law of the evasion of such a vessel, except in the form of
prosecution for confiscation, which is one of the modes of
punishment. And when this Foreign Enlistment Act was
passed in 1819, it was thus left unaccompanied by any execu
tive power of interception and prevention, for the reason,
as shown in the debates, that this interceptive and preven
tive power resided in the prerogative of the Crown, and
could be exercised by it. This will be seen from the debates
which we have appended in Note B to our argument.

In comparing that law with the preceding act passed in
1818 by the American Government, the debates in Parlia
ment gave as the reason for the lodgment of this preventive
power in the Executive of the United States, by the act of
Congress, and for its not being necessary to lodge a similar
preventive power in the British Crown, that there was no
prerogative in America, while there was in Great Britain.

To be sure, when one of the punishments provided by law
is a proceeding in rem for confiscation of the vessel, if you
serve your process at a time and under circumstances to
prevent a departure of the vessel on its illegal errand, you

THE ALABAMA CLAIMS 651

do effect a detention. But that is all. The trouble with
that detention is, that it is only a detention of process, to
bring to issue and trial a question of private right, a confisca
tion of the ship, which is to be governed by all the rules of
law and evidence, which are attendant upon the exercise of
authority by the Crown, in taking away the property of the
subject.

It never was of any practical importance to the United
States, whether the British Government confiscated a ship
or imprisoned the malefactors, except so far as this might
indicate the feelings and sympathy of that nation. All we
wished was, that the Government should prevent these ves
sels from going out. It was not a question with us, whether
they punished this or that man, or insisted upon this or that
confiscation, provided the interception of the cruisers was
effected. When, therefore, we claimed under the Foreign
Enlistment Act or otherwise, that these vessels should be
seized and detained, one of the forms of punitive recourse
under that act would have operated a detention, if applied
at the proper time and under the proper circumstances. Con
fiscation had its place whenever the vessel was in the power
of the Government; but it was only by interception of the
enterprise that we were to be benefited. That interception,
by some means or other, we had a right to; and if your law,
if your constitution, had so arranged matters that it could
not be had, except upon the ordinary process, the ordinary
motives, the ordinary evidence, and the ordinary duty by
which confiscation of private property was obtained, and
that provision was not adequate to our rights, then our argu
ment is that your law needed improvement.

But it is said that nothing in the conduct of Great Britain,
of practical importance to the United States, turned upon
the question whether the British law, the Foreign Enlist
ment Act, was applicable only to an armed vessel, or was
applicable to a vessel that should go out merely prepared to

652 SPEECHES OP WILLIAM MAXWELL EVARTS

take its armament. How is it that nothing turned upon
that question? It is so said because, as the learned Counsel
contends, the Government adopted the construction that the
statute did embrace the case of a vessel unarmed. But
take the case of the "Alabama," or the "Florida," for an
illustration, and see how this pretension is justified by the
facts. What occasioned the debates of administrative
officers? What raised the difficulties and doubts of custom
house and other officials, except that the vessel was not
armed, when as regards both of these vessels the Executive
Government had given orders that they should be watched?
Watched! watched, indeed! as they were until they went
out. They were put under the eye of a watching super
vision, to have it known whether an armament went on
board, in order that then they might be reported, and, it
may be, intercepted. The whole administrative question
of the practical application of authority by the British Gov
ernment, in our aid, for the interception of these vessels,
turned upon the circumstance of whether the vessel was
armed or was not armed. Under the administration of that
question, they went out without armaments, not wishing to
be stopped, and, by pre-arrangement, took their armaments
from tenders that subsequently brought them, which, also,
could not be stopped.

Certain observations of Baron Bramwell are quoted by
the learned Counsel in this connection, which are useful to
us as illustrating the turning point in the question as to
armed and unarmed vessels. They are to this effect, and
exhibit the British doctrine:

A vessel fitted to receive her armament and armed, is a
vessel that should be stopped under an international duty.
This amounts to an act of proximate hostility which a
neutral is bound to arrest. Baron Bramwell held that the
emission of a vessel armed is, undoubtedly, a hostile expedi
tion within the meaning of the law of nations. But a vessel

THE ALABAMA CLAIMS 653

fitted to receive her armament in the neutral port, and sent
out of that port by the belligerent only in that condition, he
held is not an enterprise in violation of the law of nations,
and is not a hostile expedition in the sense of that law. By
consequence, Baron Bramwell argued, nothing in such an
enterprise of a belligerent from a neutral port calls for the
exercise of authority on the part of the neutral, either by
law or by executive interference, and, until the armament
gets on board, there is nothing to bring the case within the
province of international proscription and of international
responsibility. It was then, he argues, only a question for
Great Britain whether the provisions of the Foreign Enlist
ment Act can touch such a vessel, and the only question for
the British Government was as towards the United States,
have they done their duty to themselves in the enforcement
of the municipal law, which involves a question of inter
national responsibility to the United States? We insist,
therefore, that so far from nothing practical turning upon
this distinction, all the doubts and difficulties turn upon it,
especially in connection with the ancillary proposition that
these vessels could be provided, by means of their tenders,
with armaments, without any accountability for the com
plete hostile expedition.*

It is said that we can draw no argument as to the de
ficiency of their old act, from the improved provisions of the
new act of 1870. Why not? When we say that your act
of 1819 was not adequate to the situation, and that, if you

* Mr. Theodore Ortolan, in a late edition of his "Diplomatic de la Mer," tome
II, says:

"Nous nous rattacherons, pour resoudre en droit des gens les difficultes que
presente cette nouvelle situation, a un principe universellement etabli, qui se
formule en ce peu des mots: ' Inviolabilite du territoire neutre.' Cette inviolab-
ilite est un droit pour 1'etat neutre, dont le territoire ne doit pas 6tre atteint par les
faits de guerre, mais elle impose aussj a ce rne'me etat neutre une etroite obligation,
celle de ne pas permettre, celle d'emplcher, activement au besoin, 1'emploi de ce
territoire par 1'une des parties ou au profit de Tune des parties belligerantes, dans
un but hostile a 1'autre partif," Caje of th^ JCT. S., p. 182.

654 SPEECHES OF WILLIAM MAXWELL EVARTS

had no prerogative to supply its defects, you should have sup
plied them by act of Parliament, — that you should have
furnished by legislation the means for the performance of a
duty which required you to prevent the commission of the
acts which we complain of — it is certainly competent for us
to resort to the fact that, when our war was over, from
thenceforth, movements were made towards the amendment
of your law, and that, when the late war on the continent of
Europe opened, your new Act was immediately passed con
taining all the present provisions of practical executive inter
ception of such illegal enterprises — it is, I say, competent for
us to refer to all this as a strong, as well as fair argument, to
show that, even in the opinion of the British Parliament, the
old Act was not adequate to the performance of the inter
national duties of Great Britain to the United States.

Sections 27 to 30 of the special argument are occupied with
a discussion of that part of our argument which alleges, as
want of due diligence, the entire failure of Great Britain to
have an active, effective, and spontaneous investigation,
scrutiny, report and interceptive prevention of enterprises
of this kind. Well, the comments upon this are of two kinds :
first concerning the question, under a somewhat prolonged
discussion of facts, whether the Government did or did not
do this, that, or the other thing;* and, then, concerning the
more general question, as to whether the rules of this treaty
call upon this Tribunal to inquire into any such deficiency

* It does not seem profitable to go into a minute examination of the proofs before
the Tribunal to establish the propositions of our argument specially controverted
in section 29 and 30 of the present argument of the eminent Counsel. Although
the letter of Earl Russell, quoted by the learned Counsel, does, incidentally, refer
to certain instructions having been given to subordinate officials, yet we look in
vain, through the proofs of the British Government, for the text or date or circula
tion of these instructions. As for the rest, we find nothing in the instances cited,
in which specific information happened to be given in regard to this or that vessel
or enterprise, which contravenes our general propositions of fact, in this behalf, or
the inference of want of due diligence on the part of the British Government, which
we have drawn from those facts.

THE ALABAMA CLAIMS 655

of diligence which was not applicable to the case of a ves
sel respecting which the British Government "had reason
able ground to believe" that a violation of the law was
meditated.

Our answer to this latter question is, that the Rules to
gether, in their true construction, require the application of
due diligence (particularly under the special emphasis of the
third rule), "to prevent" the occurrence of any of the in
fractions of the law of nations proscribed by the rules.

There are two propositions in these rules. Certain things
are assigned as violations of the law of nations, and as in
volving a duty on the part of a neutral Government to pre
vent them; and besides in and towards preventing them it is
its duty to use due diligence. In regard to every class of al
leged infractions of these rules, there comes to be an inquiry,
first, whether in the circumstances and facts which are as
signed, the alleged infractions are a violation of any of the
duties under the law of nations as prescribed by those rules.
If not, they are dismissed from your consideration. But if
they are so found, then these rules, by their own vigor, be
come applicable to the situation, and then comes the inquiry
whether Great Britain did, in fact, use due diligence to pre
vent the proscribed infractions. It is under the sections now
under review, that the learned Counsel suggests whether it
is supposed that this general requirement of the use of due
diligence by Great Britain is intended to cover the cases of
vessels like the "Shenandoah" and the "Georgia" (which,
it is alleged the British Government had no reasonable
ground to believe were meditating or preparing an evasion of
the laws or a violation of the duties of Great Britain); or
the cases of these tenders, that supplied the "Georgia,"
and the "Shenandoah," and the "Florida," and the "Ala
bama," with their armaments and munitions of war — it is
under these sections that this discussion arises. The answer
on our part to this suggestion is, that the general means of

656 SPEECHES OF WILLIAM MAXWELL EVARTS

diligence to keep the Government informed of facts and
enable it to judge whether there was "reasonable ground to
believe" in any given case, and thus enable it to be prepared
to intercept the illegal enterprise, are required in cases that
the rules proscribe as infractions of neutrality.

I will agree that under the first clause of the first rule the
duty is applied to a vessel concerning which the Govern
ment "shall have reasonable ground to believe," etc.
Under the second clause of the first rule, this phrase is omit
ted, and the question of "reasonable ground to believe"
forms only an element in the more general question of "due
diligence." Under the second Rule also, the whole subject
of the use of the neutral ports and waters as a base of naval
operations, is open; and, if there has been a defect of dili
gence in providing the officers of Great Britain with the
means of knowledge and the means of action, to prevent such
use of its ports and waters as a base of operations, why,
then, Great Britain is at fault in not having used due dili
gence to prevent such use of its ports and waters. That is
our argument; and it seems to us, it is a sound argument.
It is very strange, if it is not, and if the duty of a govern
ment to use due diligence to prevent its ports and waters
from being used as a base of naval operations, does not in
clude the use of due diligence to ascertain whether they were
being, or were to be, so used.

It was a fault not to use due diligence to prevent the ports
and waters of Great Britain from being used as a base of
naval operations, or for the augmentation of force, or the
recruitment of men. And to admit that it was a fault, in
any case, not to act where the Government had cause to
believe that there was to be a violation of law, and yet to
claim that it was no fault for the Government to be guilty
of negligence in not procuring intelligence and information
which might give a reasonable ground to believe, seems to me
absurd.

THE ALABAMA CLAIMS 657

This, indeed, would be to stamp the lesser negligence, of
not applying due diligence in a particular case when there
was "reasonable ground to believe," as a fault, entailing
responsibility upon a neutral Government, and to excuse the
same Government for the systematic want of due diligence
which, through indifference to duty and voluntary ignorance,
did not allow itself to be placed in a position to judge whether
the ground of belief was reasonable, or whether there was any
ground at all for its action. The lesser fault infers that the
same or greater responsibility, is imputable to the greater
fault.

The sections of the special argument of the learned
Counsel, which are occupied with a comparison between the
practical efficiency of the American and of the English Acts,
and in which the propositions of our argument, in this re
gard, are questioned and commented upon, will be replied to
by my learned associate, Mr. Gushing, in an argument which
he will present to the Tribunal. It is enough for me to re
peat here, the observation of our argument, that the true
measure of the vigor of an act is its judicial interpretation
and its practical execution. We do not intend to allow our
selves to be involved in discussions as to the propriety of this
or that construction of the English act which reduced its
power. The question with us is, what were the practical
interpretation and exercise of the powers of that act, as com
pared with the practical interpretation and exercise of the
powers of the Neutrality Act of the United States?

The propositions of our argument seem to us untouched by
any of the criticisms which the learned Counsel has applied
to them. We, rightly or wrongly, have interpreted our act,
from its first enactment to the present time, as giving au
thority to the Executive of the United States, to intercept
by direct exercise of power, all these prohibited enterprises
at any stage at which he can lay his hands upon them, for
the purpose of their prevention. The correspondence pro-

44

658 SPEECHES OF WILLIAM MAXWELL EVARTS

duced in our proofs, showing the action of the Executive
Government on all the occasions in which this statute has
been required to be enforced, will indicate that, whether it
has been successful or not in the execution of the duty, the
Government has recognized the duty, the Executive has
undertaken it, and all the subordinates have had their at
tention called to it, in the sense and to the end of preven
tion. All subordinates have, as well, always been stimu
lated to the duty of keeping the Executive, from time to
time, fully and promptly supplied with information to secure
the efficient execution of the law: And it is not improper,
perhaps, for me here to observe, that my learned associate,
Mr. Gushing, and myself, having been called upon to exe
cute this statute in the office of Attorney General of the
United States, we can bear testimony to its vigor and its
efficiency, in the every day action of the Government. It
is submitted to and not questioned, and produces its effect.
Whether the Government of the United States, possessing
that power under and by authority of the statute, has always
been successful or not, or has always used due diligence in
its exercise, and whether it is accountable to this or that
nation for a faulty execution of its duties of neutrality, are
questions which this Tribunal cannot dispose of, and they
are only remotely collateral to any discussions properly be
fore the arbitrators.

SIR ALEXANDER COCKBURN: If you are arguing now
upon that point, Mr. Evarts, explain this to me. By the
last English Act of 1870, the Secretary of State has power,
under certain circumstances, to order a vessel to be seized,
and then it is provided that the owner of such vessel may
make claim, etc., which the Court shall as soon as possible
consider. I want to ask you, what, under your act of 1818,
which gives power to the President to seize, under similar
circumstances, would be the course of proceedings in such a
case? How would the owner be able to know whether his

THE ALABAMA CLAIMS 659

vessel was one liable to seizure and confiscation? How would
he get his vessel back again according to your form of pro
cedure?

MR. EVARTS: I take it for granted that the detention
which the President might authorize, or cause to be made,
would not be an indefinite detention. By the terms of the
act, however, that exercise of the executive power is not,
necessarily, terminated by a judicial appeal of any kind.

SIR ALEXANDER COCKBURN: Do you mean to say that
the ship shall remain in the hands of the Government?

MR. EVARTS: If the party chooses so to leave it without
satisfactory explanation. The President interposes in the
discharge of a public duty, to prevent the commission of an
act in violation of neutrality, which he believes to be illegal.
On representation to him by the aggrieved party, he will re
lease the vessel, if he finds reason. If he does not so re
lease, then the vessel remains subject to the continued exer
cise of executive control, under the same motives that first
induced it.

SIR ALEXANDER COCKBURN: Would not the President,
in the ordinary practice of things, direct that the matter
should be submitted to judicial determination?

MR. EVARTS: This Executive interception carries no
confiscation. It merely detains the vessel and the owner
can apply for its release, giving an explanation of the matter.
But the Executive may say, "I am not satisfied with your
explanation; if you have nothing else to say, I will keep your
vessel"; or he may send it to the Courts to enforce its con
fiscation.

SIR ALEXANDER COCKBURN: Which does he practically do?

MR. EVARTS: He practically, when not satisfied to re
lease it, usually sends it to the Court, because the situation
admits of that disposition of it. Under the act of the United
States, there is the same actual interception by the Execu
tive which your act of 1870 —

660 SPEECHES OF WILLIAM MAXWELL EVARTS

SIR ALEXANDER COCKBURN: Under our act the Execu
tive has no discretion; it must send it to the courts."

MR. EVARTS: Under our act, we trust the Executive for
a proper exercise of the official authority entrusted to him.

In the American case, some instances of the exercise of
this power on a very considerable scale, will be found.
(Page 126 of the French translation.) The documents ex
plaining these transactions are collected at length in the
Appendix to the American counter-case.

Sections 38 to 41 of the special argument call in question
our position as to onus probandi. It is said, that we im
properly undertake to shift, generally, the burden of proof,
and require Great Britain to discharge itself from liability
by affirmative proof, in all cases where we charge that the
act done is within the obligation of the three rules. This
criticism is enforced by reference to a case arising in the pub
lic action of the United States under the treaty of 1794 with
Great Britain.

I will spend but few words here. The propositions of our
argument are easily understood upon that point. They
come to this : that, whenever the United States, by its proofs,
have brought the case in hand to this stage, that the acts
which are complained of, the action and the result which
have arisen from it, are violations of the requirements of the
law of nations as laid down in the three rules, and this
action has taken place within the jurisdiction of Great
Britain (so that the principal fact of accountability within
the nation is established), then, on the ordinary principle
that the affirmative is to be taken up by that party which
needs its exercise, the proof of "due diligence" is to be sup
plied by Great Britain. How is a foreigner, outside of the
Government, uninformed of its conduct, having no access to
its deliberations or the movements of the Government, to
supply the proof of the want of due diligence? We repose,
then, upon the ordinary principles of forensic and judicial

THE ALABAMA CLAIMS 661

reasoning. When the act complained of is at the fault of
the nation, having been done within its jurisdiction, and is
a violation of the law of nations for which there is an ac
countability provided by these three rules, the point of de
termination whether due diligence has been exercised by the
authorities of the country to prevent it, or it has happened
in spite of the exercise of due diligence — the burden of the
proof of "due diligence" is upon the party charged with its
exercise.

Let us look at the case of the "Elizabeth/' which is quoted
in section 41. It is a long quotation and I will read, there
fore, only, the concluding part. It will be found on page
50 of the French translation of the special argument. The
question was as to the burden of proof under the obligation
that had been assumed by the United States :

The promise was conditional. We will restore in all those
cases of complaint where it shall be established by sufficient testi
mony that the facts are true which form the basis of our promise —
that is, that the property claimed belongs to British subjects;
that it was taken either within the line of jurisdictional protection
or, if on the high seas, then by some vessel illegally armed in our
ports ; and that the property so taken has been brought within our
ports. By whom were these facts to be proved? According to
every principle of reason, justice, or equity, it belongs to him who
claims the benefit of a promise to prove that he is the person in
whose favor, or under the circumstances in which the promise was
intended to operate.

A careful perusal of this passage is sufficient to show that
the facts here insisted upon as necessary to be proved by the
claimant, are precisely equivalent to the facts which the
United States are called upon to prove in this case. These
facts, as I have before stated, bring the circumstances of the
claim to the point where it appears that the responsibility
for the injury rests upon Great Britain, unless due diligence
was used by the Government to prevent the mischievous con-

662 SPEECHES OP WILLIAM MAXWELL EVARTS

duct of the subjects or residents of that kingdom which has
produced the injuries complained of. In the absence of this
due diligence on the part of that Government, the apparent
responsibility rests undisturbed by the exculpation which the
presence of due diligence will furnish. The party needing
the benefit of this proof, upon every principle of sound reason,
must furnish it. This is all we have insisted upon in the
matter of the burden of proof.

In conclusion of the first chapter of this special argument,
the eminent Counsel, at section 43 takes up the " Terceira
affair" and insists that if Great Britain, in a particular sit
uation for the exercise of duties of neutrality, took extraor
dinary measures, it does not prove that the Government were
under obligation to take the same measures in every similar
or comparable situation.

We referred to the "Terceira" affair for the purpose of
showing that the Crown, by its prerogative, possessed
authority for the interception of enterprises originating
within the kingdom for the violation of neutrality. The
question, whether the Executive will use it, is at its discre
tion. The power we prove, and, in the discussions in both
Houses of Parliament, it was not denied, in any quarter,
that the power existed to the extent that we call for its ex
ercise within British jurisdiction. The question in contro
versy then was (although a great majority of both Houses
voted against the resolutions condemning the action of the
Government), whether, in the waters of Portugal or upon
the seas, the Government could, with strong hand, seize
or punish vessels which had violated the neutrality of Great
Britain, by a hostile, though unarmed, expedition from its
ports. The resolutions in both Houses of Parliament re
ceived the support of only a small minority. Mr. Philli-
more, however, says the learned Counsel, expresses the
opinion, in his valuable work, that the minority were right.

SIR ALEXANDER COCKBURN: I confess I always thought
so myself.

THE ALABAMA CLAIMS 663

MR. EVARTS: But the point now and here in discussion,
is, what were the powers of the Crown within the limits of
British jurisdiction, and it is not necessary to consider who
were right or who were wrong in the divisions in Parlia
ment. What all agreed in was, that the fault charged upon
the Government was the invasion of the territorial rights of
another nation.

But we cited the "Terceira" affair for the additional pur
pose of showing the actual exercise of the power in question,
by the Crown, in that case. This was important to us in
our argument; it justly gave support to the imputation
that the powers of the Government were not diligently ex
ercised during the American Rebellion, in our behalf.
Where there is a will, there is a way; and diligence means
the use of all the faculties necessary and suitable to the
accomplishment of the proposed end.

Now, in conclusion, it must be apparent that the great
interest, both in regard to the important controversy be
tween the High Contracting Parties, and in regard to the
principles of the law of nations to be here established, turns
upon your award. That award is to settle two great ques
tions: whether the acts which form the subject of the ac
cusation and the defence, are shown to be acts that are pro
scribed by the law of nations, as expressed in the three
rules of the treaty. You cannot alter the nature of the case
between the two nations, as shown by the proofs. The facts
being indisputably established in the proofs, you are then to
pass upon the question whether the outfit of these tenders
to carry forward the armament of the hostile expedition to
be joined to it outside of Great Britain, is according to the
law of nations, or not.

When you pass upon the question whether this is a viola
tion of the second rule, you pass upon the question, under the
law of nations, whether an obligation of a neutral not to
allow a hostile expedition to go forth from its ports can be

664 SPEECHES OF WILLIAM MAXWELL EVARTS

evaded by having it sent forth in parcels, and having the
combination made outside its waters. You cannot so de
cide in this case, and between these parties, without estab
lishing by your award, as a general proposition, that the law
of nations proscribing such hostile expeditions, may be
wholly evaded, wholly set at naught by this equivocation
and fraud practiced upon it; that this can be done, not by
surprise, — for anything can be done by surprise, — but that
it can be done openly and of right. These methods of com
bination outside of the neutral territory may be resorted to,
for the violation of the obligations of neutrality, and yet the
neutral nation, knowingly suffering and permitting it, is
free from responsibility! This certainly is a great question.

If, as we must anticipate, you decide that these things
are proscribed by the law of nations, the next question is,
was "due diligence" used by Great Britain to prevent them.

The measure of diligence actually used by Great Britain,
the ill consequences to the United States from a failure on
the part of Great Britain to use a greater and better measure
of diligence, are evident to all the world. Your judgment,
then, upon the second question, is to pronounce whether
that measure of diligence which was used and is known to
have been used, and which produced no other result than the
maintenance, for four years, of a maritime war, upon no
other base than that furnished from the ports and waters of
a neutral territory, is the measure of "due diligence," to
prevent such use of neutral territory, which is required by
the three rules of the treaty of Washington for the exculpa
tion of Great Britain.

VIII

ARGUMENT IN BEHALF OF OWNERS OF THE
CARGO OF THE BARQUE "SPRINGBOK,"
CLAIMANTS AGAINST THE UNITED STATES,
BEFORE THE MIXED COMMISSION ON
BRITISH AND AMERICAN CLAIMS. (THE
"SPRINGBOK" CASE)

NOTE

The barque "Springbok," laden with a large and valuable cargo
of general merchandize, a very small portion of which was contra
band of war, ship and cargo being the property of British subjects,
sailed from London in December, 1862, bound for the port of
Nassau, in New Providence, one of the Bahama Islands under
British rule and jurisdiction. On her way the vessel with her
cargo was captured by a United States cruiser and brought to
New York as lawful prize of war, to be subjected to condemnation
by the Courts of the United States. The ownership of the vessel
was distinct from that of the cargo. Upon the trial in the United
States District Court before Judge Betts, a decree of condemnation
was entered against both ship and cargo. The decree of condemna
tion was based upon the findings of the Court that (in the language
of the decree) "the said vessel, at the time of her capture at sea,
was knowingly laden, in whole or in part, with articles contraband
of war, with intent to deliver such articles to the aid and use of the
enemy; that the true destination of the said ship and cargo was not
to Nassau (a neutral port) and for trade and commerce, but to
some port lawfully blockaded by the forces of the United States,
and with intent to violate such blockade; and further that the
papers of said vessel were simulated and false. "

On appeal to the Supreme Court of the United States, the con
demnation of the vessel was reversed but that of the cargo was
sustained.* The condemnation of the cargo proceeded upon the

* Supreme Court Reports, 5 Wallace, 1. The Chief Justice delivered the
opinion of the Court, four Associate Justices dissenting.

665

666 SPEECHES OF WILLIAM MAXWELL EVARTS

theory, which seems to have been based upon surmise, conjecture
and moral probability rather than upon proof, that it was the in
tention of the owners of the cargo to transship at Nassau into some
other vessel for the purpose of running the blockade of the Southern
ports, and that this purpose under the doctrine of "continuous
voyages," rendered the cargo subject to confiscation by the of
fended belligerent at any time during the voyage, after leaving the
port of origin. The grounds of the decision of the Supreme Court
are subjected to a critical analysis in Mr. Evarts's argument ad
dressed to this Mixed Commission.

The Court's decision was, and has been ever since, the subject of
much adverse criticism by publicists and authorities on interna
tional law the world over, as an extension of the doctrine of "con
tinuous voyages" beyond all warrant of the law of prize, and as
tending to establish an intolerable interference, by belligerent
nations, with the lawful trade of neutrals between neutral ports.
How truly it was said by Mr. Evarts in this argument that " The
future interests of the United States imperatively demand that
the barriers against belligerent pretension, which this case of the
"Springbok" has overturned, should be firmly established by the
judgment of this International Tribunal," was impressively
brought home when Great Britain, at the time when the United
States stood neutral in the European war, cited the "Springbok"
decision to justify her interference with the commerce between
neutral ports, in her attempt to cut off all intercourse with the
Central European powers.

Wharton, in his international law digest (III, 404) has this to say
of this argument, in an editorial note discussing the decision of the
Supreme Court: "It is a matter of great regret, also, that the
masterly argument of Mr. Evarts, before the mixed commission
afterwards instructed to act on this class of claims, * * * an
argument which is one of the ablest expositions of international law
in this relation which has ever appeared and is recognized as such
by the highest foreign authority, had not been delivered before the
Supreme Court, so as to have enabled that tribunal to become aware
of the great gravity of the question involved. "

Mr. Evarts's argument was presented to the Mixed Commission
on British and American claims arising out of the Civil War, which

THE SPRINGBOK CASE 667

had been established under the Treaty of Washington of May 8,
1871. The British Government prosecuted the claim of the owners
of the cargo of the "Springbok" before this commission and Mr.
Evarts was retained by them in the matter. An oral argument of
the case was not permitted and it was presented in printed form.

John Bassett Moore, who holds the chair of international law in
Columbia University and has at various times been connected with
the State Department at Washington, wrote of this argument in
these words: "It has never been my good fortune to read a better
argument in a prize case and I do not expect ever to see a better
one. Each year since I came here (Columbia) I have had my stu
dents read it. No one but a great lawyer with a profound ap
prehension of the principles of international law could have made
such an argument. "

ARGUMENT.

STATEMENT OF THE CASE

The barque "Springbok" and her entire cargo were con
demned as lawful prize of war to the United States steamer
"Sonoma," by decree of the United States District Court
for the Southern District of New York, on the 1st day of
August, 1863.

The learned district judge, Betts, gave, in passing con
demnation upon the barque and her cargo, as the ground of
his decree,

That the said vessel, at the time of her capture at sea, was
knowingly laden, in whole or in part, with articles contraband
of war, with intent to deliver such articles to the aid and use of the
enemy; that the true destination of the said ship and cargo was
not to Nassau, a neutral port, and for trade and commerce, but
to some port lawfully blockaded by the forces of the United
States, and with intent to violate such blockade; and further,
that the papers of the said vessel were simulated and false.
Wherefore the condemnation and forfeiture of the vessel and
cargo is declared. (Proof for Claimants, p. 25.)

668 SPEECHES OF WILLIAM MAXWELL EVARTS

Thus it appears, vessel and cargo were condemned in the
District Court as taken in delicto on a voyage planned and
prosecuted with intent to violate an existing blockade.

Upon appeal to the Supreme Court of the United States
that Court reversed the condemnation of the vessel, and
held that—

Her papers were regular, and they all showed that the voyage on
which she was captured was from London to Nassau, both neutral
ports within the definitions of neutrality furnished by the inter
national law. The papers, too, were all genuine, and there was
no concealment of any of them and no spoliation. Her owners
were neutrals, and do not appear to have had any interest in the
cargo and there is no sufficient proof that they had any knowledge
of its alleged unlawful destination. The preparatory examinations
do not contradict, but rather sustain the papers. (Case of the
"Springbok," 5 Wall. 21.)

The Supreme Court, however, affirmed the condemnation
of the cargo upon this conclusion, as to the ground of con
demnation :

Upon the whole, we cannot doubt the cargo was originally
shipped with intent to violate the blockade; that the owners of
the cargo intended that it should be transshipped at Nassau in
some vessel more likely to succeed in reaching safely a blockaded
port than the Springbok; that the voyage from London to the
blockaded port was, as regarded the cargo, both in law and in
intent of the parties, one voyage; and that the liability to condem
nation, if captured during any part of that voyage, attached to
the cargo from the time of sailing. (Ibid., pp. 27, 28.)

Thus it appears, condemnation passed finally upon the
cargo, not as taken in delicto during a voyage in which the
vessel carrying it was to be an agent of transportation with
intent to violate the blockade, but simply as set in progress
(by and through an innocent voyage of an innocent vessel
to a lawful port) towards a purpose of thereafter obtaining
transportation, by a voyage yet to be commenced, by some

THE SPRINGBOK CASE 669

unknown and unnamed guilty vessel to some unknown and
unnamed blockaded port.

View of the facts and the evidence upon which the Supreme
Court drew the conclusion that the cargo was taken in delicto,
as lawful prize, for attempt to violate the blockade:

I. The bills of lading disclosed the contents of six hundred and
nineteen, but concealed (that is, did not mention) the contents of
thirteen hundred and eighty-eight, of the two thousand and seven
packages which made up the cargo. Like those in the Bermuda
case, they named no consignee, but required the cargo to be
delivered to order or assigns. The manifest of the cargo also,
like that in the Bermuda case, mentioned no consignee, but de
scribed the cargo as deliverable to order. Unlike those bills and
that manifest, however, these concealed the names of the real
owners as well as the contents of more than two-thirds of the
packages. (5 Wallace, p. 24.)

The injurious inference and the damnatory imputation
from this so-called "concealing" the contents of the packages
is thus stated by the court:

The true reason must be found in the desire of the owners to hide
from the scrutiny of the American cruisers the contraband char
acter of a considerable portion of the contents of those packages.
(Ibid., p. 25.)

In the opinion of the Court the basis for injurious infer
ence and damnatory imputation from the so-called "con
cealing" the names of the owners of the cargo, is not found
in the papers of the prize or in the preparatory proofs in the
cause, but solely in papers invoked at the hearing, from the
case of the "Gertrude" and from the case of the "Stephen
Hart." The only fact acquired from the invocation of the
papers in the case of the "Gertrude" was, that Begbie, a
claimant of the cargo of the "Springbok," was owner of the
"Gertrude," and the only fact acquired from the papers of
the "Stephen Hart" was that S. Isaac, Campbell and Co.,

670 SPEECHES OF WILLIAM MAXWELL EVARTS

also claimants of the cargo of the "Springbok," were the
owners of the cargo of the "Stephen Hart." Upon these
facts thus presented to the Court, the omission of the names
of these owners of the cargo of the "Springbok" gives rise
to this damnatory conclusion from such omission:

Clearly the true motive of this concealment must have been the
apprehension of the claimants, that the disclosure of their names
as owners would lead to the seizure of the ship in order to the
condemnation of the cargo. (Ibid., p. 25.)

But the Court hold expressly that —

"These concealments do not warrant condemnation" of the cargo,
and broadly maintain that the cargo must be restored to the claim
ants "if the real intention of the owners was that the cargo should
be landed at Nassau, and incorporated by real sale into the common
stock of the island." (Ibid., p. 25.)

II. The items of fact or surmise tending to a conclusion
of a plan of transshipment at Nassau into a blockade-runner
are gathered and combined by the Court, as follows:

(a) "The consignment, shown by the bills of lading and
the manifest, was to order or assigns." This the Court
regarded as negativing the intent of sale at Nassau, "for had
such sale been intended, it is most likely that the goods
would have been consigned for that purpose to some estab
lished house named in the bills of lading."

"This inference is regarded by the Court as strengthened," from
the charterer's instructions to the master of the "Springbok"
"to report to B. W. Hart, the agents of the charterers, at Nassau,
and receive his instructions as to the delivery of the cargo. The
property in it was to remain unchanged upon delivery. The
agent was to receive it and execute the instructions of his prin
cipals." (Ibid., p. 26.)

(b) The Court then undertake to "collect" what these
instructions were "from the character of the cargo."

The characteristics of the cargo from which the unknown

THE SPRINGBOK CASE 671

instructions for its disposal at Nassau are to be collected,
are the presence of "arms and munitions of war," in the
shape of "sixteen dozen swords and ten dozen rifle bayonets,
and the forty-five thousand navy buttons and the one hun
dred and fifty thousand army buttons," and of "quasi con
traband," in the shape of "seven bales of army cloth and the
twenty bales of army blankets . ' ' The conclusion drawn from
these features of the cargo is thus stated:

We cannot look at such a cargo as this and doubt that a consider
able portion of it was going to the rebel States, where alone it
could be used; nor can we doubt that the whole cargo had one
destination. (Ibid., p. 27.)

(c) From "ultimate destination" of a considerable por
tion of this cargo for consumption in the rebel States, thus
arrived at, the Court then reasons out the course by which
the whole cargo, as a unit was to get there, as follows:

Now if this cargo was not to be carried to its ultimate destina
tion by the "Springbok" (and the proof does not warrant us in
saying that it was), the plan must have been to send it forward by
transshipment. And we think it evident that such was the purpose.

The Court find, also, support for this inference from the
invoked proofs, showing (1) "that Isaac, Campbell and Co.
had before supplied military goods to the rebel authorities
by indirect shipments, and (2) that Begbie was owner of the
'Gertrude' and engaged in the business of running the
blockade." (Ibid., p. 27.)

(d) The Court add an element of further support to
their conclusion, as follows :

If these circumstances were insufficient grounds for a satisfac
tory conclusion, another might be found in the presence of the
"Gertrude" in the harbor of Nassau, with undenied intent to run
the blockade, about the time when the arrival of the "Springbok**
was expected there. It seems to us extremely probable that she
had been sent to Nassau to await the arrival of the "Springbok,"

672 SPEECHES OF WILLIAM MAXWELL EVARTS

and to convey her cargo to a belligerent and blockaded port, and
that she did not so convey it, only because the voyage was inter
rupted by the capture. (Ibid., p. 27.)

(e) The only further makeweight in aid of these damna
tory surmises, suggested by the Court, is "the very remark
able fact," that the claimants never applied for leave to
take further proof, and that the claims, as filed, were sworn
to by the agent and proctor of the claimants, and not by
them personally. (Ibid., p. 27.)

The British subject, whose valuable cargo had been con
fiscated by this final sentence of the Supreme Court of the
United States, upon the grounds of fact and of public law
avowed by that court to be the basis of its judgment,
represented to Her Majesty's Government the injury and
injustice which they deemed themselves to have suffered at
the hands of the prize jurisdiction in the court of last resort,
and asked for its interposition with the Government of the
United States for the relief of the injury, and the correction
of the injustice they had suffered.

These British subjects supported their representation to
Her Majesty's Government by the professional opinion of
two very eminent English lawyers (Mr. Mellish, now Lord
Justice of Appeal in the High Court of Chancery, and Mr.
Vernon Harcourt), pointing out certain alleged misconcep
tions of evidence and errors of law and fact which exhibited
themselves in the final sentence of the prize court.

Her Majesty's Government presents the case for redress
to this International Tribunal, organized and sitting with
plenary authority to that end, under the provisions of the
Treaty of Washington. (Memorial of Claimants; Opin
ion of Counsel, pp. 30-35; Memorial of British Govern
ment; Proof for Claimants, pp. 39-44.)

View of the principal matters of proof imported into the
case before the mixed Commission, and of their relation, on

THE SPRINGBOK CASE 673

the one side and the other, to the matter in evidence before the
prize courts.

I. The claimants have made full proof that at the time
the voyage of the "Springbok" was planned, and when it
would have brought her to Nassau, there was a market at
Nassau for all the various kinds of merchandise which made
up the cargo of that vessel. The proof includes evidence of
numerous business houses established there offering all these
articles, by public advertisement in the newspapers, for sale
by auction, as well as in ordinary trade. This proof is made
by the production of the original newspapers of Nassau filed
with the Mixed Commission, and pertinent extracts there
from are appended to the claimant's petition. (Memorial,
pp. 71-86.)

Besides this, the claimants have invoked the proofs perti
nent to this topic from two other cases pending before the
Mixed Commission, to wit, the case of John C. Rahming vs.
The United States, No. 7, and the case of Joseph Eneas vs.
The United States, No. 126. From these proofs the magni
tude, variety, and activity of this market of Nassau for all
the kinds of goods which make up the cargo of the "Spring
bok" abundantly appear.

Upon the cross-examination of John Norris Sleddon, a
witness examined in Liverpool in behalf of the United States,
the claimants have proved this condition of the market at
Nassau very distinctly.

Cross-question 27: Has not a large business been for many
years carried on between Great Britain and Nassau, consisting of
the export of all kinds of merchandise from the former to the latter
place? Answer: A large business was carried on during the war
but before and since the business is by no means large.

Cross-question 29: Did you at any time during the war see
any newspapers which had been published at Nassau? Answer:
Yes; I saw them regularly.

Cross-question 30: Did not these newspapers contain many

45

674 SPEECHES OF WILLIAM MAXWELL EVARTS

advertisements relating to the sale of all kinds of merchandise, by
auction or otherwise? Answer: Yes. (Deposition for Defense,
p. 25.)

It is not too much to claim for the proofs on this point
that they make a commercial adventure which should des
patch a cargo, assorted as that of the "Springbok" was, for
landing and sale in the market of Nassau as natural and
probable a project as it was safe and legal. Every indica
tion, therefore, in the lading of a vessel for that port which
should suggest its probable "ultimate destination" as look
ing to its consumption in the rebel States, so far from raising
a doubt of its being salable and meant for sale in the market
of Nassau, would point directly to that conclusion. The mo
ment, under this proof of the market at Nassau, it is conceded
that the "Springbok" was bound to that port as the end of
her voyage, and was there to unlade her cargo, all suspicions
or surmises in regard to further projects for any parts of the
cargo, from their character, are satisfied by the demand of
the Nassau market for such merchandise for its own enter
prises projected, made up and prosecuted from thence. (2-316.)

II. The claimants make full proof, by unexceptional
witnesses, of the absolute regularity and conformity to
every day usage, of the bills of lading, manifest, and form of
consignment of all parts of the cargo of the "Springbok."
(Proof for Claimants, p. 33.)

III. The claimants produce in evidence the various
original policies of insurance, eleven in number, taken out
by them on the cargo of the "Springbok," all exhibiting the
risk insured as beginning at London and ending at Nassau.
(Memorial of Claimants, pp. 35-71.)

IV. The claimants produce the deposition of B. W. Hart,
to the whole of which the most careful attention of the com
mission is respectfully asked.

This deposition shows that the cargo of the "Springbok"
was consigned to Hart for sale in Nassau and remittance of

THE SPRINGBOK CASE 675

proceeds, and as a shipment of part of a joint account adven
ture for that market, which covered the cargoes of two other
vessels which arrived and were sold by Hart in Nassau.
The cargo of the "Springbok," in anticipation of her arrival,
was put upon the market in Nassau, and an advertisement
prepared for the papers, and some portion of the cargo was
actually sold "to arrive," including the two boxes marked
buttons mentioned in the opinion of the Supreme Court.
The letter of consignment of the three cargoes was received
in due course of mail by way of New York, and was as
follows :

71 JERMYN STREET, LONDON,

December 19, 1862.
B. W. HART, ESQ., Nassau.

Dear Sir: By this mail we send you duplicates of invoices of
shipments on joint account of ourselves, T. Stirling Begbie, Esq.,
and Messrs. Moses Brothers, per "Aries," "Springbok," and
"Justitia." Duplicate bills of lading are enclosed. We hope
these goods will arrive to a good market, realize good prices, and
that you will be able to remit to us without loss of time, money being
much wanted here at present.

(The bank rate was rising.)

The deposition of Mr. Hart shows that the cargo of the
"Justitia" arrived at Nassau (having been transshipped at
Bermuda) in January, 1863; was sold in the market there,
and the proceeds remitted, and that the "Aries" sailed
from England November 28, 1862, and arrived at Nassau
January 20, 1863, when her cargo also was there sold by
Hart.

The deposition also proves the valuation of the cargo of
the "Springbok" as made at Nassau in May, 1863, and,
according to the market prices current in February, 1863,
amounting to £66,378 11s. lid. (Deposition of Hart; Proof
for Claimants, pp. 33, 38.)

Upon this deposition of Hart it is impossible to avoid the

676 SPEECHES OF WILLIAM MAXWELL EVARTS

conclusion that too rash a substitution of surmise for evi
dence, and of conjecture for facts, led the Supreme Court
away from the true function of the prize jurisdiction,
dealing only with the voyage intercepted, and involved it in a
condemnation of the system of trade of which Nassau had
become the entrepot.

V. Upon the proofs invoked by the claimants from the
case of John Riley vs. The United States, No. 442, before the
Mixed Commission (being the case of the barque "Spring
bok"), an inspection of the documents exhibits the singu
lar error of fact with which the Supreme Court started in
its inspection of this cargo for evidence of guilt. What the
Supreme Court calls "arms" and counts as "sixteen dozen
swords" and "ten dozen rifle bayonets," upon the actual
proofs in the prize cause itself, turn out to have been one
sample case, containing one dozen cavalry swords and one
dozen rifle bayonets. (Case of Riley vs. U. S., page 156;
Case A 1406.

The depositions of Thomas May, Edward Russel Cummins
and Thomas Stirling Begbie, forming part of the "Deposi
tions for Claimant" in case of Riley vs. United States, and
found at pages 1 to 11, exhibit the perfectly neutral char
acter of the voyage and cargo of the "Springbok."

An examination of the "marshal's return" to the prize
court of the sale of the cargo of the "Springbok" exhibits
the utter insignificance of what the Supreme Court regarded
as contraband, or quasi contraband, and suffered to carry
such widespread infection through as inoffensive a cargo of
dry goods, haberdashery, and groceries (see catalogue of
sale on file with Commission), as ever crossed the ocean,
and to impart such disastrous weight in determining the
injurious surmises under which the condemnation of the
entire cargo passed. ;;.,.rf

It will be found that the proceeds of the "swords and
bayonets" were but $35, and of the "military and naval

THE SPRINGBOK CASE 677

buttons" but $235, showing for "arms and munitions of
war," in the language of the Supreme Court, but $270 out
of gross proceeds of entire cargo of nearly $250,000.

Again: if the proceeds of the quasi contraband — the
so-called army blankets, etc., and the ten kegs of saltpetre
be added — the whole will come to less than one per cent
of the proceeds of cargo at the marshal's sale.

VI. The claimant's proofs displace entirely the theory
upon which the Supreme Court satisfied itself that the
steamer "Gertrude" was to receive the cargo of the "Spring
bok," the transshipment of which the Court imagined she
had been sent to receive, and was awaiting in the port of
Nassau, when the capture of the "Springbok" disappointed
the project.

The proofs show that on the third day of February, 1863,
when the "Springbok" was captured off Nassau, the "Ger
trude" was lying off Queenstown, in Ireland, having arrived
there from Greenock, January 31.

The log of this voyage and the deposition of James
Raison, master of the "Gertrude," established these facts
beyond controversy. (Claimants' Memorial, pp. 17 to 19.)

The proofs invoked from the case of the "Gertrude"
upon the trial of the "Springbok" showed that the "Ger
trude" received her lading at Nassau on the eighth day of
April, and there is no evidence of her earlier presence in
that port. (Case of Riley vs. U. S., pp. 171-2.)

PROOFS ADDUCED BY THE UNITED STATES.

I. The United States examined, on due notice, one witness,
John Norris Sleddon, whom the claimants duly cross-ex
amined.

The only purpose or effort of this evidence is to attempt
to show that T. Stirling Begbie, one of the claimants of the
cargo of the "Springbok," had been, or had the reputation
of having been, connected with blockade-running projects

678 SPEECHES OF WILLIAM MAXWELL EVARTS

and voyages. These trading enterprises with which the
witness attempts to connect Mr. Begbie were all a year or
more later in date than this voyage of the "Springbok" The
witness is not asked about "Moses Bros.," and knows noth
ing about "S. Isaac, Campbell & Co.," the other claimants,
in this connection.

All that the witness contributes to the case respecting the
"Springbok" or her voyage is as follows:

Cross-question 51 : Do you of your own knowledge know any
thing of the cargo of the "Springbok," or of the circumstances
under which it was shipped from London? Answer: Of my own
knowledge I do not. I simply know of the transaction by having
heard Mr. Begbie speak of it during the war.

Cross-question 52: Can you tell when you first saw Mr. Begbie?
Answer: It would be about the latter end of 1863. (Deposition
for Defence, pp. 13, 14.)

The United States permit this witness to sum up his knowl
edge and wisdom about this case as follows :

Re-direct 22 : Do you wish to make any special remark in regard
to the "Springbok" or her cargo? With respect to the "Spring
bok" herself, that is, the vessel, I have no doubt, from my knowl
edge of the trade, that Nassau or Bermuda was her ultimate des
tination, and I have no idea that she ever intended to run the block
ade; but with respect to the cargo, from my knowledge of Mr.
Begbie' s connection with blockade-running, I should judge that it
was intended for the blockade ports, whether sold or unsold at
Nassau or Bermuda.

It is apparent that on this estimate of the case against
the cargo, no condemnation could be asked, for the sale in the
market at Nassau seemed to the witness as probable a project
of these parties as any other.

II. The United States have produced, under the simple
authentication of the certificate of "Geo. M. Robeson, act
ing Secretary of War," dated April 7, 1873, what purports
to be copies of letters and accounts, being "extracts from the

THE SPRINGBOK CASE 679

records of the so-called Confederate States of America, cap
tured by the forces of the United States, and now being in
the custody of this Department; the extracts being all that
pertains to the case of S. Isaac, Campbell & Co., in the
documents from which they are made."

These papers covered a period from January, 1862, to
July, 1864, that is, for a period beginning a year before the
voyage of the "Springbok" commenced, and ending eighteen
months after the capture.

The object and bearing of this evidence, in favor of the
United States, are simply to show the range and extent of
the commercial undertakings of the house of S. Isaac, Camp
bell & Co., of London, in supplying the wants from foreign
trade of the people and authorities of the rebel States. The
papers, undoubtedly, tend to show a commercial interest in
favor of the "Confederacy," active and open, just as other
prominent London houses espoused and aided, commercially,
and much more extensively, the other belligerent in the pend
ing war.

Upon what principles this evidence, thus certified, is sup
posed to carry authority for its admission in this tribunal
of international authority, is not readily perceived. The
claimants suppose themselves at least to have been entitled
to notice and cross-examination, and the production of coun
tervailing evidence from the same public repository.

But the real importance of this great draught of evidence,
thus fished up, is, from the unlimited exploration of all the
dealings of this firm and any of its agents or correspondents,
and of the agents and correspondents of the commercial or
public interests of the people or Government of the rebel States,
to demonstrate by the most exhaustive negative imaginable, that
the voyage and cargo of the "Springbok" were not embraced or
touched by any of these dealings thus explored, and thus are
placed above suspicion as a mere commercial consignment to the
market of Nassau.

680 SPEECHES OF WILLIAM MAXWELL EVARTS

III. The United States have also included in the same
"Proofs for Defence," and covered by a similar certification,
a contract of "T. Stirling Begbie," bearing no date, but
evidently made after December, 1863, for providing steamers
(to run to blockaded ports presumptively), and some appurte
nant transactions not very definite or important. (Proofs
for Defence, pp. 83-90.)

The same observations apply to the proofs, thus intro
duced, in respect to the claimant Begbie as are made above
in respect of the claimants, S. Isaac, Campbell &. Co.

We have thus a complete exhaustion of the transactions of all
the claimants,, deemed questionable, and a demonstration that the
voyage and cargo of the ''Springbok" lay outside of, and are not
touched by, the unneutral dealings.

ARGUMENT

Importance of the case.

The case of the "Springbok," as it stands upon the list of
the Mixed Commission, and is to be determined by their
judgment, is justly considered by the publicists of the two
nations for the settlement of whose reciprocal grievances,
arising during the period of the late civil war, this interna
tional tribunal has been established, and, not less, by the
publicists of Continental Europe, as of capital importance.

In the first place, the case as a prize cause, to be passed
upon according to the procedure and principles of that spe
cial jurisdiction, was both novel and interesting. Accordingly
it excited much attention from learned authors and eminent
diplomatists, while it was sub judice in the prize court of the
first instance, and far greater when it reached the Supreme
Court of the United States, of so great authority on the law
of nations, where it was, as a mere question of prize, finally
determined.

But when the actual judgment of the Supreme Court of
the United States was announced, carrying the condemnation

THE SPRINGBOK CASE 681

to the extent, and supporting it upon the principles of law
and of evidence which that judgment declared, the interest
of publicists and of statesmen in the case and the question
was quickened and extended.

The extreme pretentious of belligerent right to subjugate
neutral commerce to its necessities, which this condemnation
imported, and the wide influence upon neutral commerce in
time of war which was to follow, if this new instance of
prize law, as declared by the Court of a belligerent, should
be accepted by the great maritime powers as regulating the
duties of neutrals in the future, made the case one of atten
tive consideration and responsible discussion with the prin
cipal Cabinets of Europe, as well as of representation on the
part of Her Majesty's Government to that of the United
States.

It may be considered as a fortunate circumstance that the
dispersed protracted debate to which, otherwise, this whole
subject would have been destined, without any prospect of
definite solution until, unhappily, the prize jurisdiction of
some maritime power should again be invoked to pass upon
it, is so quickly superseded by a submission of the contro
verted public doctrine to a tribunal of the credit and dignity,
under the law of nations, of this Mixed Commission. This
delegated authority represents the great commercial nations
of Great Britain and the United States, and of United Italy,
whose great share in the past history of the world's public
law and of the world's commerce may yet be rivaled in the
growing fortunes of her new kingdom.

The claimants of the condemned cargo of the "Springbok"
will be entitled to restitution and indemnity from the United
States in case the Mixed Commission shall be satisfied of either
of the three following propositions:

I. That the actual judgment of the Supreme Court of the
United States has disregarded the essential principles of the

682 SPEECHES OF WILLIAM MAXWELL EVARTS

prize jurisdiction (by whose adjudication, and not other
wise, do neutral nations submit to have the fortunes of their
subjects' maritime property even prima facie determined),
in its condemnation of the cargo of the "Springbok," irres
pective of any conclusion as to what the probable fate of the
cargo would have been, after a trial in which the principles of
the prize jurisdiction had been properly adhered to.

In other words, the function of this tribunal is to restore the
property if not properly condemned by the prize court — not to
revive the prize jurisdiction and recondemn the property; or,

II. That, upon the facts of the case, as apparent upon the
trial of the prize cause and made the basis of the condemna
tion by the Supreme Court, there was no adequate ground
for the conclusions drawn therefrom by the Court to the
condemnation of the cargo; or,

III. That, upon the facts of the case, upon the whole
proofs as now presented to the Mixed Commission, the
judgment of the Supreme Court is shown to have been
erroneous in its misconception or misconstruction of facts, in
its adoption of conjectures, now shown to be baseless, in
place of awaiting proofs, or in its acceptance of false rules
of guilt, in place of the true doctrines of the law of nations,
upon which the question of guilt or innocence is deter-
minable.

General principles of the prize jurisdiction which need to be
considered:

I. As the ownership of both vessel and cargo, and the
scheme and conduct of the voyage and its commerce (what
ever the latter may be held to have included of ultimate
destination in its project), were wholly British, it is manifest
that the limits of all possible discussion in the case must be
confined to the question whether the actual interference with
the said voyage and commerce, and the confiscation of the
whole cargo by the United States, one of the belligerents,

THE SPRINGBOK CASE 683

was within the submission of neutral nations of the freedom
and inviolability of their maritime commerce to the exigen
cies of belligerent right. If in the deliberate and enlightened
judgment of this tribunal it shall be so held, then belligerent
right, and neutral subjection to it, will have received an
authentic exposition the wide consequences of which it
would be difficult to overestimate. If, on the other hand,
this tribunal shall reject this pretension and extension of
belligerent right, as beyond the warrant of the law of nations,
this excess of belligerent power will be condemned as such,
and, instead of its spreading its evil example in the future, will
become a barrier against future attempts upon that just
liberty of neutral commerce which is the great interest that
civilization and morality oppose to the passions and cupidity
of maritime warfare.

II. The recognized belligerent right to pursue the enemy's
commerce upon the high seas, and the repugnant neutral
right to maintain its commerce upon the high seas unaffected
by a warfare to which it is not a party and should not be a
prey, have brought about, in the interests of peace and in
recognition of the necessities of belligerents, a certain degree
and measure of concession on the part of neutrals to the ex
igencies of the war, of which, not transcended, they will bear
the molestation without resentment.

For the purposes of the present discussion, the adjustment
of this conflict between belligerent and neutral rights and
interests, which constitutes the law of nations on this sub
ject, may be stated as follows:

(a) Enemy property, as such, and without other feature
or inquiry, being exposed to capture or destruction by the
hostile power, and neutral property, as such simpliciter,
being absolutely exempt from capture or destruction by
either belligerent, neutrals consent that the verification of
the character of the property, as being neutral or belligerent,
shall be submitted to by neutrals, by visitation and search
at sea.

684 SPEECHES OP WILLIAM MAXWELL EVARTS

(b) Further interference with the voyage or property,
neutrals do not permit, unless by the visitation and search,
and from what is then and there disclosed respecting the
voyage and property, some fault or defect in the enterprise,
as really neutral, exhibits itself to the visiting cruiser. In
that case, and in that case only, neutrals permit, not confisca
tion or destruction, or the least spoliation of property or
molestation of the ship's company, but capture and submis
sion to the prize jurisdiction for its more deliberate examina
tion, and more competent decision.

(c) Neutrals require that the prize investigation shall be
limited to the evidence that the voyage, vessel, and ship's
company supply, and to the issue whether the capture was
warranted by what that evidence discloses; and this condi
tion of the prize investigation is not a question of form,
practice, or procedure, but an essential limitation of the sub
mission of neutrals in the degree and nature of the interfer
ence with their commerce that they will tolerate.

The moment you depart from this vital principle of the
prize jurisdiction, to wit: that the capture is to be judged of
as it was made, and on the evidence on which it was made,
and the captors acquitted or condemned in damages or costs,
and the belligerent nation held to accountability by the
offended neutral according to the facts as appearing on the
capture and the evidence of the prize itself, you subject
neutral commerce to an unchecked and speculative cupidity
of captors, and to delays and miscarriages of visitation and
search in Court for suspicion, and of remote and crippled
litigation to establish guilt or innocence, by imputed or ex
traneous evidence, which neutrals never have submitted to,
and never can tolerate.

(d) The practical maintenance of this great safeguard of
neutral commerce against speculative or hopeful capture
(upon the calculation that something may turn up to justify
it and make it gainful), and against practices upon the prize

THE SPRINGBOK CASE 685

court in the way of simulated or specious evidence, or
against the Court's own unchecked surmises or imaginative
ingenuity, is secured by the firm and undeviating rule of
the prize courts never to admit further proof as part of the
original inquiry, never to admit it upon the motives or the
interests of the captors or the claimants, but always to intro
duce it, if at all, upon and for a resolution of the difficulties
which the primary evidence itself raises, and for the clearing
of which, for the Court's conscience in the adjudication, and
in the mere motive of assurance in its justice, it seeks for
light, till then forbidden.

Accordingly, further proof is never admitted to raise a
doubt, nor, on the other hand, is a doubt, difficulty, specula
tion, or surmise, which the primary proof raises in the mind
of the court ever sufficient to draw or sustain any other deter
mination of the matter in hand, than to order further proof.
An adjudication of condemnation never proceeds upon a
doubt or difficulty raised upon the primary proofs. The
only question is, and the prize courts consider that a grave
one, whether the doubt or difficulty is of such substantial
character as to put the neutral to the delay and expense
of further proof, or whether acquittal should follow, although
without full assurance of its duty.

When further proof is ordered from a claimant, it is upon
a consideration that it will be just to condemn on the
primary proofs, if the damnatory features are not susceptible
of explanation, but not just to assume they are not suscepti
ble of explanation, without opening an opportunity of ex
planation by extraneous evidence.

But a prize court, which observes the true principles of its
jurisdiction, never admits doubts or difficulties from extra
neous sources and demands further proof to allay them; or,
if this last proposition, in extreme cases, should be qualified,
no prize court ever admits doubts or difficulties from extra
neous sources, and proceeds any further upon them to the

686 SPEECHES OF WILLIAM MAXWELL EVARTS

prejudice of the claimant, than to order further proof. It
would be a complete subversion of the essential principles
of the prize jurisdiction to accept suspicions and surmises
from extraneous evidence, and proceed upon them as ade
quate, without having opened them to correction by further
proof.

(e) When the neutral character of the property is unques
tionable, then the limits of visitation and search, capture,
investigation, primary judgment, further proof, and final
adjudication above insisted upon are applicable, even more
stringently, to the only point of enquiry for the prize juris
diction, to wit: Whether the property and commerce,
being neutral, are affected with any unneutral participation
in the war that exposes them to interference by capture and
the property to confiscation by any of the rules of the law of
nations accepted between belligerents and neutrals, as
abridging the freedom of neutrals' commerce.

We say these limitations of belligerent right are more
stringent, in the admitted situation of the property and voy
age being really neutral in interest and management, than
in the controversy whether the property is enemy or neutral.
The moment it is decided to be enemy, there is an end of
rights on the one hand or of limits of power on the other.

But when the question is of unneutral dealing in the com
merce owned and pursued by neutrals, then all presumptions
favor exemptions — the burden of proof lies wholly on the bellig
erent. No duty of the neutral requires it to regulate its trade,
except so far as to have it free from unneutral participation
in the war, and interception and vexation, even of neutral
commerce, on speculative grounds, are justly resented by
the neutral nation.

An observance by the belligerent of all limitations in his
right of search, capture, and adjudication is justly expected
when it is indisputable that the limit is and has been under
stood to be, what might be lawfully done by a belligerent

THE SPRINGBOK CASE 687

to a neutral, not whether the interest touched was really
enemy and only fraudulently neutral.

(f) Neutral nations submit to have their maritime com
merce and voyages interfered with by capture, detention,
and prize adjudication only when the voyage is being pur
sued :

(1) In the carriage of contraband in trade with a belliger
ent ; or,

(2) In a voyage to a port of a belligerent, with whatever
cargo, which is actually blockaded by the other belligerent;
and,

(3) In either case the neutrals limit the exposures of the
voyage or the property that they will tolerate, to capture
while in delicto, that is, during the voyage to the deposit of
the contraband and return, in the one case, and during the
voyage to the blockaded port and return, in the other, and
under no other circumstances.

(g) It will be perceived, therefore, that the predicament of
lawful condemnation of a vessel or cargo inculpated for
traffic in contraband or breach of blockade involves a defi
nite voyage between the terminus a quo and the terminus
ad quern, on which the guilty vessel is captured, and that
this arrest in delicto is as necessary to a condemnation as the
guilt itself.

Neutrals are unwilling that their commerce shall be vexed
and harassed by any interference with vehicle or cargo,
except by interception while on the voyage in which the con
traband cargo is to be or has been deposited, or on the very
voyage in which the blockade is to be or has been penetrated.

These principles of the prize jurisdiction are believed to be
indisputable and of universal authority. It is only necessary
to recall to the attention of the tribunal a few passages from
elementary writers on the subject.

Thus Sir William Scott and Sir John Nicholls, in their
celebrated letter to John Jay, United States minister to

688 SPEECHES OF WILLIAM MAXWELL EVARTS

England (quoting from and approving the most eminent
English authority), say:

By the maritime law of nations, universally and immemoriably
received, there is an established method of determination whether
the capture be or be not lawful prize.

Before the ship or goods can be disposed of by the captors there
must be a regular judicial proceeding wherein both parties may be
heard, and condemned thereupon as prize in a court of admiralty,
judging by the law of nations and treaties.

The evidence to acquit or condemn with or without costs or
damages must in the first instance come merely from the ship taken,
viz. : the papers on board and the examination on oath of the master
and other principal officers.

If there do not appear from thence ground to condemn as enemies'
property or contraband goods going to the enemy, there must be
an acquittal, unless from the aforesaid evidence the property shall
appear so doubtful that it is reasonable to go into further proof
thereof.

Though from the ship's papers and the preparatory examinations
the property does not sufficiently appear to be neutral, the claimant
is often indulged with time to send over affidavits to supply that defect.

When the property appears from evidence not on board the ship
(that is upon further proof allowed the claimant) the captor is
justified in bringing her in and excused costs because he is not in
fault.

In this method all captures at sea were tried during the last war
by Great Britain, France and Spain, and submitted to by the
neutral powers. In this method by courts of admiralty acting
according to the law of nations and particular treaties all captures
at sea have immemorially been judged of in every country of
Europe. Any other method of trial would be manifestly unjust, ab
surd, and impracticable.

From the further observations of this letter of Sir William
Scott and Sir John Nicholl it appears that—

Upon an appeal fresh evidence may be introduced, if upon hear
ing the cause the lords of appeal shall be of opinion that the case is

THE SPRINGBOK CASE 689

of such doubt as that further proof ought to have been ordered by the
court below. <v

The degree of proof to be required depends upon the degree of
suspicion and doubt that belongs to the case. In cases of heavy
suspicion and great importance, the court may order what is called
"plea and proof"; that is, instead of admitting affidavits and
documents introduced by the claimants only, each party is at lib
erty to allege, in regular pleadings, such circumstances as may tend
to acquit or condemn the capture, and to examine witnesses in
support of the allegations to whom the adverse party may admin
ister interrogatories. (Letter of Sir William Scott and Sir John
Nicholl; Story on Prize Courts, by Pratt, pp. 3-10.)

From Judge Story's note to 1 Wheat. Rep., we quote as
follows:

It is upon the ship's papers and depositions thus taken and trans
mitted that the cause is, in the first instance, to be heard and tried.
This is not a mere matter of practice or form; it is of the very essence
of the administration of prize law; and it is a great mistake to admit
the common law notions, in respect to evidence, to avail in proceed
ings which have no analogy to those at common law.

By the law of prize, the evidence to acquit or condemn must, in
the first instance, come from the papers and crew of the captured
vessel. The captors are not, unless under peculiar circumstances,
entitled to adduce any extrinsic testimony.

But whether such further proof be necessary or admissible, can
never be ascertained until the cause has been fully heard upon the
facts, and the law arising out of the facts already in evidence.
And in the Supreme Court, during the whole of the late war no fur
ther proof was ever admitted until the cause had been first heard
upon the original evidence, although various applications were
made to procure a relaxation of the rule.

Further proof is in all cases necessary where .... the
defects of the papers, the conduct of the parties, the nature of the
voyage, or the original evidence in general, induces any doubt of
the proprietary interest, the legality of the trade, or the integrity
of the transactions.

In cases where further proof is admitted on behalf of the captors,

690 SPEECHES OF WILLIAM MAXWELL EVARTS

they may introduce papers taken on board another ship, if they
are properly verified by affidavit; and they may also invoke papers
from another prize cause. Story on Prize Courts, (by Pratt,) pp.
17, 18, 24, 25, 26.

The French regulations were thorough and peremptory on this
subject of the confinement of the proof to the papers and persons
on board of the prize. (Quoted in note to Story on Prize Courts,
p. 17.)

Complete jurisdiction and authority of the Mixed Commission
to redress any injury or injustice suffered by the claimants in
the prize cause by the sentence therein.

This tribunal has already and repeatedly had occasion
to consider its powers, and has not hesitated to exercise
them in according reparation to claimants who have suffered
from an unwarranted sentence of a prize court. That the
sentence complained of as a grievance was pronounced by
the highest tribunal of the jurisdiction, so far from being a
reason why the office of redressing the injury should be de
clined by this Mixed Commission, it is, as we all know, a
condition required by the principles which govern such
international commissions, and insisted upon by this tri
bunal, that the aggrieved parties should have exhausted
their right to appeal in the municipal jurisdiction before
they have a standing in the international court for the invo
cation of its justice.

It is important to recall, what is not to be controverted,
that the doctrine of res judicata — a matter adjudged and not
to be judicially re-examined — has no application to the situa
tion in which the sentence of a prize court is presented for
the review to such a tribunal as this Mixed Commission.

The sentence of a prize court binds everywhere upon the
two points: (1) of change of property in the res warranted
by the condemnation, and (2) the justification of the captors
against all personal recourse or question for their acts else
where.

THE SPRINGBOK CASE 691

For the rest, the prize jurisdiction is but an inquisition
held by the Government through its special court of prize
upon the capture (which has been made under its assumed
instruction and authority by the cruiser), to determine
whether such capture shall be assumed and justified by the
Government as in obedience to its warrant to the cruiser,
and in conformity to its views of belligerent right. If it be
found upon this inquisition that the capture is so justified,
the act is adopted by the Government, and responsibility
therefor assumed towards the neutral power, and from that
moment only does the matter become one of direct recourse
and accountability -bet ween the two nations. Such is the
situation here in the matter of the cargo of the "Springbok"
between the Government of Great Britain and that of the
United States.

Accordingly Wheaton says :

The jurisdiction of the Court of the capturing nation is con
clusive upon the question of property in the captured thing. Its
sentence forcloses all controversy as between claimant and captors
and those claiming under them, and terminates all ordinary judicial
inquiry upon the subject-matter. When the responsibility of the
captor ceases, that of the capturing State begins. It is responsible
to other States for the acts of the captors under its commission the
moment their acts are confirmed by the definite sentence of the
tribunal which it has appointed to determine the validity of
captures in war.

An unjust sentence must certainly be considered a denial of
justice, unless the mere privilege of being heard before condemna
tion is all that is included in the idea of justice.

The moment the decision of the tribunal of the last resort has
been pronounced (supposing it not to be warranted by the facts of
the case, and by the law of nations applied to these facts), and
justice has been thus finally denied, the capture and the condemna
tion become the acts of the State, for which the State is responsible
to the Government of the claimant. (Wheaton's Elements, part IV.,
ch. 2, sec.15.)

692 SPEECHES OF WILLIAM MAXWELL EVARTS

The attention of the Mixed Commission has been re
peatedly called to the precedent of the authority exercised
by a similar commission under the British treaty of 1794,
and of the discussion between the British and American
commissioners on the point, the American commissioners
sustaining the fullness and supremacy of the jurisdiction
which the British commissioners questioned. The disposi
tion made of the doubt by the Lord Chancellor (Lough-
borough), in his answer to the fifth commissioner, Colonel
Trumbull, who had submitted the point for his advice, is
well known :

The construction of the American gentleman is correct. It was
the intention of the high contracting parties to the treaty to clothe
this commission with power paramount to all the maritime courts
of both nations — a power to review and (if in their opinion it should
appear just) to revise the decisions of any or all the maritime courts
of both. (Trumbull's Reminiscences of his Own Times, p. 193.)

In the discussions of the "Tribunal of Arbitration" at
Geneva, the question came up upon the effect of the sen
tence of the Vice Admiralty Court at Nassau, acquitting
the "Florida," on libel of the Crown, for violation of the
neutrality act of Great Britain. As is well known, the
tribunal held Great Britain responsible for the "Florida,"
notwithstanding the adjudication of its admiralty court
having jurisdiction.

Posture of the memorialists representing the cargo of the
"Springbok," and asking indemnity for its confiscation.

The claimants in the prize court of the cargo of the
"Springbok," viz., the firm of S. Isaac, Campbell, and Co.,
of London, and Thomas Stirling Begbie, also of London, are
the memorialists here.

The firm of S. Isaac, Campbell & Co., was at the time of
these transactions, composed of Samuel Isaac and Saul
Isaac, and had no other partner. (The duly accredited

THE SPRINGBOK CASE 693

attorney-in-fact of the memorialists, before this commission,
Dugald Forbes Campbell, Esq., of London, whose powers
duly verified are filed with the Commission, is not to be
taken, from the name of Campbell appearing in the firm of
S. Isaac, Campbell & Co., to have had any connection with
the transactions of the voyage of the "Springbok." That
firm had no partner of the name of Campbell, as is shown in
the prize causes and in the present memorial. Mr. D.
Forbes Campbell represents the existing interests in the
claim, which, as is stated in the memorial, are largely those
of creditors of the original parties.)

Though the whole legal interest in the cargo, at the time
and since, was in these merchants, yet, in respect of one
undivided third of the cargo, one Joseph Moses, trading
under the firm of Moses Bros., of London, had a beneficial
interest or trust. One of the bills of lading of teas, coffee,
and groceries, being six hundred and sixty-six packages,
names Moses Brothers as shippers. (Memorial, p. 2; B. L.
No. 6, Proofs in Prize Cause.)

The decree of the district court.

This may be dismissed in a few words. Its purport and
reason have been given already in the "Statement" which
forms a part of this argument.

The condemnation of vessel and cargo there pronounced
involved no novel, difficult, delicate, or dangerous doctrines
of prize law. It proceeded on the ground that the "Spring
bok" and her cargo were bound for a blockaded port, and
that the papers of the voyage to Nassau were false and
simulated. No criticism of this as a legal ground of condem
nation is possible. There is one fatal objection to the sen
tence, and that is, there is not the least support in the evi
dence for the conclusions of fact so rashly arrived at by the
court. It was a violent injustice, and its ground of con
demnation has been flatly rejected by the Supreme Court.

694 SPEECHES OF WILLIAM MAXWELL EVARTS

The Supreme Court's sentence of restitution of the ship, and
its condemnation of cargo, on the theory of a projected
further voyage of the cargo, by transshipment, to a block
aded port, are equally inconsistent with the sentence of the
district court and its reasons. The decree of the Supreme
Court is a complete answer to that of the district court.

It is only the condemnation of the Supreme Court, and
the grounds of it, that will be further treated in this argu
ment.

The grounds on which the Supreme Court draws its damna
tory conclusions ON QUESTIONS OF FACT examined.

We have presented in detail, and in connection in the
"Statement," which forms part of this argument, the
various items of imputation or suspicion to the prejudice of
the cargo of the "Springbok" upon which the Supreme
Court based its condemnation. It is now our purpose to
subject each one of these items, which collectively make up
the whole case upon which the decree of the Supreme Court
rests, to the test of a careful and candid examination.

I. The bills of lading did not set forth the contents of
1,388 packages, naming the contents of only 619 packages,
and the manifest followed the bills of lading in this respect.
The only imputation from this form of description of cargo
in these mercantile documents made against the integrity of
the enterprise, as within the freedom of neutral commerce, is
"the desire of the owners to hide from the scrutiny of the
American cruisers the contraband character of a considerable
portion of the contents of these packages."

This objection to the regularity of the documents will not
bear a moment's attention.

(a) The discrimination made between packages of which
the contents are mentioned and those of which the contents
are not mentioned, turned entirely upon the trade regula
tions of Great Britain and not at all upon the contraband or

THE SPRINGBOK CASE 695

peaceful nature of the contents. The teas, coffees, spices,
and groceries, which were mentioned as contents of packages,
were not the growth of Great Britain, and had been im
ported. The re-exportation from Great Britain of these
articles, as matters of revenue and trade returns, requires
their description in the documents of exportation if the
shippers are to have the advantage of the customs regula
tions in that behalf. This accounts for the mention of con
tents in these packages, and shows the absence of sinister
motive or design in the discrimination which is looked upon
with suspicion.

Thus we find it stated in the prize cause that the "cargo
books" found on board exhibited all this, and the following
"memorandum" is entered in the cause:

Mem. — The cargo-book, marked K, contained a list of all the
cases, casks, barrels, etc., with their corresponding marks and
numbers, with their length, breadth, and solid contents, all tally
ing with the bills of lading, and enumerating the articles not the
product of Great Britain, namely — tea, pepper, coffee, ginger, and
cloves. (Memorial, etc. in Riley vs. The United States, No. 442,
p. 132.)

(b) But of the 1,388 packages, the contents of which were
not set forth in the bills of lading or the manifest, or the
cargo book, confessedly, no more than some twenty-odd
contained anything that was not as innocent as the teas or
spices; "Scotch ginghams," "cotton handkerchiefs,"
"printed muslins," "shirts," "drawers," "gloves," "spool
cotton," "needles," "gaiters," "cloths," in great quantities,
made up the cargo. The omission to name these contents
could be imputed to no motive of concealment, and is,
manifestly, answered by the conformity to every-day com
merce, which made such details in voyages from Great
Britain to her colonies, wholly insignificant, and therefore,
burdensome.

(c) But the so-called contraband on board which, like a

696 SPEECHES OF WILLIAM MAXWELL EVARTS

needle in a hay-stack, was to be hidden by this cunning con
trivance, might have been named with perfect impunity,
and by full commercial description, and no cruiser would
have imagined evil therefrom. Take the sample case with
a dozen swords and a dozen bayonets ! Is that worth hiding?
Is that to expose a cargo of groceries and dry goods? Was
it to carry that to the armies of the rebellion that £60,000
worth of innocent cargo were to be risked? Then the but
tons! "Two cases of buttons" would have been all that
they would have designated on a bill of lading or a ship's
manifest, under the most exacting precision. What ex
posure would have come from this?

So, too, the twenty bales of blankets and the ten kegs of
saltpetre, or nitrate of potash, such a description would have
been a matter of the utmost indifference, as items in a cargo
like this.

(d) But the whole argument of guilty motive, to escape
suspicion from the visiting cruiser by the suppression of
contents, refutes itself.

Its whole weight rests upon the idea that honest neutral
cargo would, regularly, give its contents in the bills of lading
and manifest; and to avoid suspicion, these shippers thrust
in the face of the boarding officer documents on their face
betraying irregularity, concealment, guilt! Why, the only
reason the captors have ever suggested for sending in the
"Springbok," was, the bills of lading and manifest not dis
closing the contents. To be sure, under the light of the
evidence, showing the e very-day regularity of these papers,
the ignorance or willfulness of the captors in so treating
these papers is manifest. But we are dealing with the
argument of the Supreme Court, which finds these papers so
suspicious as to condemn, and yet finds they were put in
this shape to meet the scrutiny of the cruisers! The argu
ment is felo de se.

II. The bills of lading and the manifest following, as it is

THE SPRINGBOK CASE 697

made up from them, gave Spyer and Haywood, and Moses
Brothers, as shippers, and not Begbie and S. Isaac, Camp
bell & Co., and this is treated by the Court as grave matter
of "concealment," with a purpose of protecting the cargo.

The Court find in the invoked papers from the " Gertrude "
and the "Stephen Hart" the inference that the disclosure of
the names of Begbie and S. Isaac Campbell & Co., as owners,
"would lead to the seizure of the ship in order to the con
demnation of the cargo," and infer guilt from this conceal
ment. A few words will dispose of this somewhat thought
less suggestion.

The point about Begbie is that the cruiser that should over
haul the "Springbok," seeing that Begbie was an owner of
cargo [who is assumed to be of ill-repute, with the cruiser,
by reason of his known connection with the "Gertrude," a
detected blockade-runner], would send in the "Springbok"
on that ground of suspicion.

But this is an anachronism of the most flagrant character.
The "Springbok" was overhauled just off Nassau, on the
3rd February, 1868, and the "Gertrude" did not load at
Nassau for her blockade-running voyage, which was to
expose her owner, Begbie, to the suspicion of the cruiser that
was to overhaul the "Springbok" till the 8th of April, 1863.

The fact is, however, that Begbie's name was "disclosed"
in the charter-party found among the ship's papers on her
capture.

So much for this ground of suspicion and the danger to
the administration of justice when suspicion and hypothesis
are suffered to beguile the judgment of so great a court.

But the Court find a similar motive in respect to the so-
called "concealment" of S. Isaac, Campbell & Co., as owners
of the cargo of the "Springbok" from their having been con
cerned, it is said, with the case of the "Stephen Hart,"
which had in fact been seized and sent in before the capture
of the "Springbok."

698 SPEECHES OF WILLIAM MAXWELL EVARTS

This "concealment," which weighed so heavily with the
Supreme Court against the cargo of the "Springbok," is
readily disposed of, not as an anachronism, but as a mere
oversight on the part of the Court. There was no con
cealment at all. The ship's papers, which came into the
hands of the boarding officer (with the bills of lading and
manifest which name Spyer and Hay wood as shippers of the
cargo), also included the letter of advice from Spyer & Hay-
wood to the consignee at Nassau, enclosing the very bills of
lading, showing that S. Isaac, Campbell & Co. were the
owners of the cargo so shipped, and Spyer & Haywood were
mere shipping agents. The letter is as follows:

"Springbok."

LONDON, 8th Dec., 1862.

15, Billiter-street.
B. W. HART, Esq., Nassau.

Dear Sir: Under instructions from Messrs. S. Isaac, Campbell
& Co., of Jermyn street, we inclose you bills of lading for goods
shipped per "Springbok" consigned to you.

Trusting to safe arrival of the ship, we are, dear sir, yours,
obed'ly,

SPYER & HAYWOOD,
Agents for Messrs. S. Isaac, Campbell & Co.

(Riley vs. United States, 442, p. 100.)

We have so completely disposed of these grounds oj sus
picion on which the Court laid so much stress as matters of
fact, that we dismiss them with a single suggestion as to the
poor support to the inference of the Court which they would
have afforded had the facts been as the Court conceived and
stated them.

No neutral nation will ever tolerate the interception of a
voyage, and sending in as prize, of a ship whose papers are
regular and whose own adventure presents no ground for
detention, upon the extraneous fact, that the owners of
cargo have had connection with other adventures which

THE SPRINGBOK CASE 699

have been good prize. The capturing officer who should so
deal with captures would be more likely to be cashiered
than to earn prize money.

III. The only further ground which the Supreme Court
find for condemning the cargo of the "Springbok" is the
conclusion that it was intended to be carried on, by trans
shipment in another vessel, to violate the blockade. The
steps of the Court's reasoning are as follows:

(1) It is apparent from the terms of consignment that the
cargo was not sold to the consignee, but remained the prop
erty of the shippers, to be disposed of by the consignee ac
cording to their instructions.

(2) The Court then, without disguise, and without any
pretense of evidence of any instructions to forward or transship,
proceed to make up instructions, purely inferential, and
wholly deduced from the "character of the cargo."

The only "character" from which these hypothetical in
structions are evolved is the swords and bayonets, buttons
and blankets. The dozen swords and dozen bayonets, by
some unexplained and inexplicable error of the court, are
multiplied into "sixteen dozen words and ten dozen bay
onets," and thus are made out a consignment of "arms," im
porting a military supply, which infers destination. The two
cases of buttons are magnified "into munitions of war,"
justifying a like inference of destination, and then the twenty
bales of blankets, at best but ancipitis usus, are made out as
looking to the same market.

Now, under the evidence that Nassau was an entrepot
where all such articles had a ready market, the moment the
Court had decided that the voyage of the "Springbok" ended
at Nassau, it is manifest that, in the nature of things, no
inference could be justified, from the character oj the articles,
either that they were to be sold in Nassau or sent forward.
Yet the whole reasoning of the Court, in its invention of in
structions to transship, which are to condemn the cargo.

700 SPEECHES OF WILLIAM MAXWELL EVARTS

makes out the instructions from the cargo itself — that is to
say, the only voyage for which the cargo was ever actually
laden, having its end at Nassau, and a further voyage in
tended being essential to be proved before the cargo can be
condemned, the Court allows the cargo itself to prove a further
voyage, as a necessary inference from the contraband features
of, say, one per cent, of its bulk or value!

It is vain to make two stages, for the reasoning, viz. : that
instructions to transship would condemn, if proved, and the
character of the cargo proves such instructions. The only
effect or suspicion is the cargo itself, and, reduced to its real
meaning, the condemnation is based, not upon any instruc
tions for any voyage proved, nor on any voyage proved, but
on the contraband nature of the cargo importing, de jure, a
hostile destination. Reduced to its true elements, in face of
the market of Nassau, made for and swallowing cargo after
cargo of goods, to be again sold for the market of the rebel
States, the reasoning of the Supreme Court is wholly un
tenable.

(3) But from its inference against the one per cent, of the
cargo, which it selects as importing a hostile ultimate des
tination for it, the Court proceeds, per saltum, to the con
clusion that the whole cargo was going to the same destina
tion.

Against reasoning like this, no obstacle can be successfully
opposed. It rests upon nothing, in nature of evidence, and
demands condemnation upon the force of suspicion alone.

It says the proved voyage ended at Nassau, and the ship
and cargo were there to part; a further voyage by another
ship must be found against the owners of the cargo or it can
not be condemned; none such is proved, but we think the
cargo must have expected a further voyage and, for that reason,
we condemn it on its face.

(4) The Court from its conclusions thus reached: (1)
that the cargo was to go forward to a market in the rebel

THE SPRINGBOK CASE 701

States, and (2) that it was not to go by the "Springbok" —
reasons out that "the plan must have been to send it forward
by transshipment." This, as an abstract proposition, seems
safe enough reasoning, that is if it was going and was not
going in the "Springbok," it must have been going in an
other vessel!

But as evidence or grounds for this demonstration, it will
be perceived, the Court have added nothing to what appears
on the face of the cargo in its contraband features. That is
to say, contraband nature and hostile destination, as matter
of fact, being both necessary to condemn, the Court infers
the latter from the former. What is this but to condemn,
on the contraband nature alone, not only when the hostile
destination is not proved, its vehicle not suggested, and the
port not surmised, but on a conceded destination of the
intercepted vessel being neutral.

(5) Conscious that this reasoning has gained no support
or evidence beyond the nature of the cargo (i.e., of one per
cent, of the cargo), the Court looks for the elements of
probability in the moral evidence, furnished by the owners of
this cargo having had connection with previous enter
prises to break the blockade.

To be sure, the fact in regard to Begbie (and to the voyage
of the "Gertrude" which furnishes this moral evidence
against him, for his share), is unluckily made to work this
imputation, not upon a voyage of the "Gertrude" before but
after, the "Springbok's," as we have already pointed out.
Little as we think of an argument to infer a meditated illegal
adventure for the cargo of the "Springbok," because the
owners of such cargo had before, in another adventure,
planned a violation of the blockade in which they had been
detected, we confess its value, compared with an argument
of present guilt in the "Springbok's" adventure, because a
subsequently planned and perpetrated violation of blockade
had been traced to the owners of the "Springbok's" cargo.

702 SPEECHES OF WILLIAM MAXWELL EVARTS

But as the Court find this moral evidence against the cargo
of the "Springbok," also, because S. Isaac, Campbell & Co.
had been concerned in the case of the "Stephen Hart's"
voyage to a blockaded port, we will consider how this propo
sition stands as matter of prize law, to which neutral nations
are bound to submit.

The proposition is this: S. Isaac, Campbell & Co. were
connected with the voyage of the "Stephen Hart," which
was interrupted on her voyage and made good prize for in
tent to violate the blockade: therefore, S. Isaac, Campbell &
Co.'s interest in the "Springbok's" cargo is good prize of
war, as contaminated with the guilt of the "Stephen Hart's"
adventure. It is plain that, as a substantive ground of fix
ing a guilty destination in the "Springbok's" cargo, this
reasoning violates every principle of the administration of
justice. It is using moral evidence of former participation in
a proved independent voyage, to prove the very corpus
delicti of the voyage in question itself, instead of employing
it to prove the intent which makes criminal the corpus delicti,
when that has been proved, as it must always be, as an
actual occurrence or transaction.

(6) But the Court recoils, at last, from this groping in the
dark and in the future — from this phantom ship, built and
rigged from keel to top-mast from moral reasoning, and, on
the German method, evolved from the consciousness of the
reasoner — and demands some fact in which this probable
future voyage may find a vehicle and an opportunity. It
finally supplements these "insufficient grounds for a satis
factory conclusion," by the fact "of the presence of the
* Gertrude* in the harbor of Nassau . . . about the
time when the arrival of the * Springbok' was expected
there"; and from this fact the conclusion which condemns
the cargo of the "Springbok" is finally deduced, as follows:
"It seems to us extremely probable that she had been sent to
Nassau to await the arrival of the 'Springbok,' and to carry

THE SPRINGBOK CASE 703

her cargo to a belligerent and blockaded port, and that she
did not so carry it only because the voyage was intercepted by
the capture'9

Now, there is no pretence that the ship's papers, the cargo,
or the proofs in preparatorio, in the case of the "Springbok,"
connect her, or her voyage, or her cargo, or its destination
with the steamer "Gertrude." By invocation, at the hear
ing, the captors brought in from the case of the " Gertrude,"
which was captured with a full cargo, laden April 8, at
Nassau — long after the capture of the "Springbok" — all the
papers they desired, and it is the ownership of the "Ger
trude" by Begbie, and her supposed presence at Nassau to
await the arrival of the "Springbok," that the Court find
damnatory of the cargo of the "Springbok,"

Now, the fact utterly fails. The earliest date at which
these papers from the case of the "Gertrude" show her at
Nassau is April 8, 1863. The "Springbok" was captured
within a day's sail of Nassau on the 3d February, 1863, and
on that day the "Gertrude" was quietly lying at Queens-
town in Ireland, where she had just arrived, and whence she
had no voyage commenced, or for which she was loaded.

The grave error of fact, out of which the Court made out a
vehicle and voyage to carry on the cargo of the "Springbok"
to a hostile destination (and without which the cargo could
not have been condemned), when corrected, overthrows the
whole damnatory hypothesis on which the confiscation is
worked out, in the reasons and grounds given by the Court.

This is but one more instance of the very serious conse
quences of allowing moral reasoning and extraneous, frag
mentary, and wholly irrelevant papers, of res inter alias, to
frame not merely the guilty intent of a proved voyage in
which a ship has been intercepted, but the very corpus
delicti, the very voyage itself, which had no existence or hope
of existence, except in misconceived fact and purely fanciful
reasoning.

704 SPEECHES OF WILLIAM MAXWELL EVARTS

(7) But all this seems but an insecure footing for the
Court to rest their judgment upon, and they seek some sup
port, however feeble, that appears at least to be chargeable
and responsible as the action of the claimants. And this
confession or conviction is to come from, what the Court
call, "the very remarkable fact," that the claimants never
applied for leave to take further proof. The principles of
prize law prohibit this recourse to proof de hors the ship and
her crew at the request of a party. It is to proceed from the
Court's own demand or it does not come at all.

At what stage should any such application have been
made by these claimants?

If a claimant should make such a request before the first
hearing, before the Court have found a difficulty, such an
application would be considered, and in the prize jurisdic
tion is well understood to be, a concession that on the primary
proofs condemnation must be expected to pass. But the
whole case shows that these claimants never had reason to
imagine that a decree could be made by any prize court on
invoked proof in favor of the captors, without giving opportunity
for further proof to the claimants. Besides, on the facts of
the case, the claimants could not foresee a condemnation on
the ground that this "Springbok" itself was to run the block
ade. It cannot be imputed to them as a fault not to have
foreseen a judgment on grounds which the Supreme Court has
wholly repudiated.'

Should they have applied after this decree of the district
court made on the grounds that it disclosed? They certainly
were not wrong in their reliance on reversing the decree of
the district court, as the result has shown. No further
proofs were necessary to refute the imputation of the " Spring
bok's " voyage being itself intended to penetrate the blockade
and this was the sole ground of condemnation.

Should they have applied to the Supreme Court for leave
to take further proofs ?

THE SPRINGBOK CASE 705

We have quoted above from the treatise of Judge Story,
which instructed the profession in the true doctrine of further
proof, as emanating from the spontaneous movement of the
Court to that end. Besides the doctrine thus laid down,
Judge Story gave the practice of the Supreme Court as estab -
lished and unflinching, never departed from in a single in
stance, to deny any application for further proof "until the
cause had been first heard on the original evidence." (ut
supra).

We have exhausted every stage or situation in the progress
of the cause to which this strange reproach of the Supreme
Court is applicable.

The Supreme Court itself, in its judgment, convicted the
district court (1) of error in the substance and essence of its
sentence, and (2) of irregularity in allowing the captors to
invoke proof outside of the captured vessel. It then pro
ceeded to expose the new ground of condemnation, viz. : the
hypothesis of continuous voyage of cargo by a new bottom,
to support it on suspicions founded on the irregular further
proofs allowed the captors, to confirm it by probable reasons,
quite extraneous to the province of the primary proof, and
necessarily to be met by further proof from the claimants if
the Court thought them weighty enough unexplained to con
demn, and yet the Supreme Court condemned without open
ing the case for further proof. This is, indeed, "a very re
markable fact," and we shall have occasion to observe upon
it hereafter.

(8) The Supreme Court seems to think it a fault that the
claims were sworn to by the proctor and agent of these absent
parties, and not by the parties personally.

This imputation requires but a moment's attention. The
claims were sworn to according to the rules, which are but a
snare, if the meaning is that the acceptance of the allowed
convenience is to condemn the property on that ground.

No doubt a prize court may see that its doubts, which

47

706 SPEECHES OF WILLIAM MAXWELL EVARTS

might be resolved by a personal test oath, are not equally
met by an agent's verification, however regular. In such
case the Court always suggests the difficulty, and awaits from
the claimant this form of further proof, and if it be declined,
feels at liberty then to make a distinction in the weight due
to the one or the other.

The legal theory of "Continuous voyage'' considered and de
fined.

The doctrine of "continuous voyage," as it has been in
terpreted and applied by the Supreme Court in cases previous
to that of the "Springbok," may be stated thus: A voyage
which, at its start from the neutral port of lading for the
carriage of contraband to the belligerent's country (or inno
cent cargo to a blockaded port of the enemy's country) in
cludes in its project and design this destined deposit of its
lading in the enemy's ports, is open to belligerent intercep
tion, from the start, although it should appear that the ship
and cargo were actually seeking a neutral port when inter
cepted, provided it should, also, appear that from the neutral
port the cargo was intended to be, as a part of the original and
planned adventure, carried to the enemy's port. And, this
latter element of the completion of the transit from the first
neutral port of departure to the enemy's port being embraced
in the original guilty scheme, the fact that the carriage from
the intermediate neutral port was to be by transshipment,
and taken up by a new bottom, does not purge the adventure
of its guilt, or protect the first stage of the voyage from inter
ception, and the ship and cargo from condemnation. The
doctrine is as extremely stated in the head-note of "The
Bermuda," 3 Wallace, 515, as anywhere:

A voyage from a neutral to a belligerent port is one and tfile same
voyage, whether the destination be ulterior or direct and whether
without the interposition of one or more intermediate ports; and
whether to be performed by one vessel or several employed in the
same transaction and in the accomplishment of the same purpose.

THE SPRINGBOK CASE 707

The recognized doctrine, of which we make no complaint,
that vessels carrying cargo "to belligerent ports under
blockade are liable to seizure and condemnation from the
commencement to the end of the voyage," (The Bermuda,
ut supra}, is thus thought to be made applicable to a project
of violation of blockade, at any stage of its execution, al
though such project included intermediate ports and trans
shipment and carriage by new bottoms.

The condition of proof, and the interpretation of it, which,
in this extreme case of the "Bermuda," was thought by the
court to justify condemnation, must not be overlooked and
should be carefully weighed. It really gives the measure of
the doctrine of the Court, laid down in that extreme case
on the subject of "continuous voyage."

The Court concludes:

What has already been adduced of the evidence, satisfies us
completely that the original destination of the "Bermuda" was to a
blockaded port; or if otherwise, to an intermediate port, with intent
to send forward the cargo by transshipment into a vessel provided for
the completion of the voyage.

The Court found sufficient evidence that either the
"Bermuda" herself or her tender, the "Herald," was to
complete the voyage and penetrate the blockade, and condemned
both ship and cargo.

With the doctrine of continuous voyage, as thus limited
and defined (and made to depend for its application on a
proved voyage reaching from a neutral to a belligerent's port,
by ascertained vessels completing the project in a scheme
which is intercepted only by the capture), there is nothing in
the case of the "Springbok" that involves us in any necessary
controversy. The important question, for neutrals, is,
whether trade between neutral ports to which the actual
voyage intercepted is really confined, is to be made guilty,
by surmise, conjecture, or moral evidence, and that, even,
not of the further carriage and further carrier, but only of a

708 SPEECHES OF WILLIAM MAXWELL EVARTS

probability that such supplementary further carriage, and
some supplementary carrier may or must have been included
in the original scheme of the commercial adventure.

If a belligerent prize court can thus be master of a neutral
commerce by this fiction of continuous voyage for the case
of all trade between neutral ports, which has its stimulus
from the state of war, why, then we have a paper blockade
of the neutral ports in question, and their commerce is at the
mercy of the belligerent.

A little attention to the course of the prize jurisdiction on
this doctrine of continuous voyage, will show how carefully
the province of probable reasoning has been confined to con
victing of intent, when the corpus delicti — the voyage to the
enemy port — was proved with the same definiteness of
vehicle, and port, and process of execution, as, confessedly,
is essential when the voyage is direct and simple.

The doctrine of continuous voyage had its origin and its
principal illustration in the prize courts in the trade between
the Colonies and the parent State during the European wars
of the last century and the early part of the present. The
question, as it presented itself, was of this kind. Trade be
tween European States and their transmarine colonies, in
time of peace, was not open to the navigation of other nations.
When, under the stress of war, any one of these States
threw open this interdicted colonial trade to neutrals, the
hostile Power refused to recognize this as lawful neutral com
merce. On the contrary, it was treated as succor to the
enemy, in relief of its trade, which the war had strangled,
and the belligerent captured and condemned the ships and
cargoes of the neutral as if an enemy; but, as trade between
the colonies and the neutral, and between the neutral and the
European States, was incontestably open to the neutral, a
trade was attempted of colorable importation from Cuba,
for instance, to Boston, and exportation from Boston to Spain,
and so of return cargoes through the interposition of a neu-

THE SPRINGBOK CASE 709

tral port. This scheme was denounced, and this commerce
attacked by the belligerent. The question for the prize
courts was, whether the importation into, and the exporta
tion from, the neutral port, were really transactions of the
neutral's own, and, of course, legitimate commerce, or whether
it was really a trade between the colony and the parent
State, and the interposition of the neutral port was only
colorable.

An examination of the cases under this head of prize law
will show two things which mark a firm and just observation
of the limits between the actual proof of the corpus delicti,
and the province of moral reasoning in deciding on the intent
of the transaction.

The captures were made in the voyage from the neutral port
to the enemy port, and then, the cargo showing its origin as of
the proscribed commerce, the complete circuit of transporta
tion, as matter of fact, of colonial produce to the parent
State (or vice versa) — that is, the corpus delicti was incon
testable. But the prize court never assumed upon inter
ception of the voyage to the neutral port, to invent or sur
mise, out of the state of trade and its profits and temptations,
the further voyage from the neutral port which was neces
sary to the corpus delicti.

The second point to which we seek attention is, that when,
on this state of proofs of the actual circuit of the prohibited
trade, the prize court found any basis for suspicion that the
apparent importation and exportation to and from the neu
tral port was colorable and not real, the court did not con
demn, but always opened the case to the claimants for
further proof— that is to say, there being before the court an
actual voyage which is guilty or innocent according to the
sincerity of intent in the transaction, it will not condemn unless
the neutral fails to meet an opportunity for making clear
what, in its nature, it must be in his power to make clear.

But observe, how much stronger was the position of the

710 SPEECHES OP WILLIAM MAXWELL EVARTS

neutral in the case of the "Springbok," as it stood before the
prize court. Instead of the voyage before the Court being
guilty or innocent upon a question of intent to be explored, it
was absolutely innocent, unless and until an additional voyage
should come into play to make out the corpus delicti; and
then, but not till then, the neutral might fairly be called
upon for further proofs to exculpate or inculpate him in such
intent, ab initio, as would support condemnation.

See the important cases of: The Polly, 1 Rob., 361;
The Maria, 5ib., 635; The William, ib.9 385; The Thomysis
Edw. Adm. Rep., 17.

How far neutrals will finally acquiesce in this doctrine of
"continuous voyage" in its threat to the freedom of their
commerce, it is not for us to predict. But we may safely
suggest to the wisdom and justice of this International
Tribunal, that the limits of the prize jurisdiction must be
strictly confined to judging, on probable reasoning, of the
culpability, under the law of nations, of the property sub
jected to its sentence, and not allowed to raise the supposed
culpable voyage itself out of the clearly innocent neutral
voyage, upon surmise and conjecture.

We are apt to think of these questions of continuous
voyage as chiefly interesting to Great Britain, with her
transmarine possessions, and not to a country like the United
States or Italy, without them. But the United States, with
its immense sea-coasts on the Atlantic and the Pacific, and
Italy, in its position half-way between the Levant and the
Atlantic, both occupy positions of the greatest interest
on this question. Is the. whole coasting-trade in dry goods
and breadstuff s between northern and southern ports, and
in cotton between New Orleans, Savannah, and Charleston
and New York to be exposed to French or British cruisers in
a war between those countries, or between either of them
and Mexico or South America, because these domestic voy
ages between neutral ports of this country are to be supple-

THE SPRINGBOK CASE 711

merited by future voyages of unknown vessels to unknown
belligerent ports? Are these cruisers to visit and send in,
across the Atlantic, for adjudication, a cotton-laden ship,
admitted to be bound from New Orleans to New York, be
cause New York merchants are sending shipload after ship
load of cotton to France or to England and it is probable the
intercepted cargo might have an ulterior destination?

Is Italy, in wars between France and England, or of either
or both of them with Russia, on some Eastern or Turkish
question, to find its neutral trade molested because what
comes to it from the Levant may seek a new voyage through
the Straits of Gibraltar, and what comes to it through the
Straits of Gibraltar may have an ulterior destination, by a
new voyage, to the Bosphorus, the Black Sea, the Greek
"entrepot" of Syria, or the Suez Canal?

We must think no more important question than this of
"continuous voyages," as illustrated by the case of the prize
condemnation of the cargo of the "Springbok," can touch
either the interests or the pride of neutral maritime States.

The grave errors in the condemnation of the cargo of the
"Springbok" and in the grounds and principles of that con
demnation, in the prize court, which entitle, the memorialists to
restitution and indemnity from the United States at the hands of
this International Tribunal.

If we have been at all successful in impressing the Mixed
Commission with the views of the law and estimate of the
facts which entered into this final sentence of condemnation,
as we understand and have exposed them, our further duty
in this argument seems but formal.

That duty, we conceive, will be best performed by defin
ing and concisely stating the points wherein the judgment
of the Supreme Court fails to conform to the Rules of the
law of nations governing the subject.

712 SPEECHES OF WILLIAM MAXWELL EVARTS

I. The original capture was wholly unjustifiable. The
visitation and search disclosed nothing which rendered the
intercepted voyage of the "Springbok" amenable to further
molestation. If the meagreness of the information afforded
by the ship's papers, as to the character of the contents of
the packages of which it was made up, warranted any further
action of the visiting cruiser, such further action could have
gone only to a search of the packages of the cargo them
selves for evidence of conviction or just suspicion. Upon
the result of such search it would have depended, in any
case, whether the cruiser would have been justified in send
ing in the prize. But no such search was made, and no
extraneous grounds of doubt or surmise, of course, were
accessible to inculpate the voyage.

Now, upon the construction which the visiting cruiser
should have put upon the voyage which it assumed to inter
cept, the observations of the Supreme Court exclude any
doubt :

Her papers were regular, and they all showed that the voyage on
which she was captured was from London to Nassau, both neutral
ports within the definitions of neutrality furnished by the interna
tional law. The papers, too, were all genuine, and there was no
concealment of them and no spoliation. Her owners were neu
trals, and do not appear to have had any interest in the cargo,
and there is no sufficient proof that they had any knowledge of its
alleged unlawful destination. The preparatory examinations do
not contradict, but rather sustain the papers. 5 Wall., 21 ut supra.

Now, there is no pretence that the examination of the
voyage made by the cruiser disclosed any doubt of the
neutral ownership of the cargo, or that any such doubt was
entertained by the captors, or has been intimated from any
quarter at any stage of this case. There is no pretence that
there was indication or suspicion of contraband in the cargo
that affected the cruiser in sending her in. If every box
and bale had been opened, captors of the least experience

THE SPRINGBOK CASE 713

in prize would have seen that the presence of the trivial
proportion of contraband on board was a moral demonstra
tion that the large and valuable cargo of dry goods and
groceries had not a destination to a hostile port, or the
contraband, of no importance for the profits of the general
adventure, would not have been suffered gratuitously to
expose the enterprise to ignorant or interested suspicion.
But, no matter what the cargo of the voyage between neutral
ports, the voyage is free from molestation.

Certainly, none of the confirmations of doubt to the preju
dice of the cargo which the prize court drew, by invocation,
from extraneous sources, influenced at the time, or can now
justify, the captors in sending in this prize. Manifestly it
will not do to justify a cruiser in sending in a neutral ship
and cargo, taken on a neutral voyage, on the speculation
that it may be the cargo was to go forward, and if so, perhaps
it may be provable. It is difficult to understand, on the
essential principles of prize law, on what imaginable justi
fication the "Springbok" was sent in.

Mr. Seward communicated to Lord Lyons, who asked for
an explanation, the captors' reason, as assigned in the report
to the Navy Department, as follows: It was "because she
had no proper manifest, and nothing to show the character"
of her cargo, which the captain said he was ignorant of.
But this reason, as we have before insisted, if well founded,
only indicated and justified a search into the character of
her cargo, which after all, however composed, was equally
lawful between neutral ports.

The mystery of the capture, however, has been publicly
explained in her having been denounced by agents of the
American Government in England, in advance of her sailing,
in a "black list" of vessels intended to run the blockade.
This was a mere blunder, by which this deep sailing vessel
was grouped with a list of shallow draft steamers.

But this ground of capture of neutral commerce as a justi-

714 SPEECHES OF WILLIAM MAXWELL EVARTS

fication to a cruiser could never be tolerated, and the Ameri
can Government gave instructions to their cruisers that
should preclude it thereafter. The details of this matter
are given in Appendix A to this argument.

The whole history of this capture shows that it was in
itself irregular and unjustifiable, that it was prompted by
irresponsible suspicions which had no foundation, and to
which the vessel, its lading, its papers, and its destination,
neither gave rise nor aliment.

It is a marked case of speculative seizure, detention, and
diversion of the voyage, not upon indications which the
visit and search at sea disclosed, but in entire absence
of such indications. The seizure was, apparently made on
the chance that independent, extraneous and argumentative
grounds of suspicion might possibly warrant it.

On the ground, then, that the capture violated the right
of the neutral, and exceeded the privilege of the belligerent,
the restitution and indemnity demanded should be accorded.

II. The trial in the prize court violated the essential
principles of the prize jurisdiction as established between
belligerents and neutrals and in which the latter find the
limits of their exposure and submission. The only theory
upon which the method of a prize court in condemning prop
erty sent in for adjudication can be justified is that the
proof furnished by the ship's papers, the cargo, and the
depositions of all on board are, so to speak, the ship's own
story of the voyage, told by itself, and it is not unfair to
condemn it thus out of its own mouth. It is for this reason
that Judge Story has so emphatically said that this confine
ment of the proofs rigidly within these limits, "is not a
mere matter of practice or form; it is of the very essence of
the administration of prize law." Not less thorough and
comprehensive is the declaration of the eminent English
authorities we have quoted: "In this method, by courts of
admiralty acting according to the law of nations and par-

THE SPRINGBOK CASE 715

ticular treaties, all captures at sea have immemorially been
judged of in every country in Europe. Any other method
of trial would be manifestly unjust, absurd, and impracti
cable" (Sir William Scott, etc., ut supra.)

Now, at the original hearing in prize the advocate for the
captors (not the United States attorney representing the
Government), invoked papers from the case of the "Stephen
Hart" to form part of primary proofs to condemn the
"Springbok" and her cargo. Notwithstanding the strenu
ous objections of the claimant's advocate this proof was
received, and it entered into the sentence of condemnation,
which the court proceeded to, without giving the claimants an
opportunity to give on their part further proof.

Upon this unprecedented proceeding, which the Supreme
Court condemns as irregular and not "in accordance with
the rules of proceeding in prize," the court of last resort,
nevertheless, does not hesitate to draw from this extraneous
proof its suspicions and its damnatory conclusions.

^In truth, it must be admitted, as it seems to us, that the
Supreme Court entirely missed the point of the principles
of prize procedure to which we have called attention,
treated it as an irregularity in form, from which no harm had
come, and proceeded to condemn the property without open
ing to the claimants an opportunity for further proofs.

This trial and condemnation, then, were unprecedented
and subversive of the principles of prize jurisdiction, and
the memorialists have been deprived of their property by a
method not known to the law of nations and not assented
to by neutral powers. Upon this ground the memorialists
are entitled to restitution and indemnity from the United
States.

III. The passing of condemnation without giving an oppor
tunity for further proof was a manifest injustice, and the
proofs now presented to the Mixed Commission show the
completeness of the facts of the case which the memorialists

716 SPEECHES OF WILLIAM MAXWELL EVARTS

have now proved to refute the hypothesis and allay the sus
picions upon which the condemnations passed.

(a) The mere fact that the captors had been allowed at
the first hearing to introduce extraneous or further proofs
(an unheard of proceeding) made it necessary, on every prin
ciple of prize law, that the difficulties thus raised should
carry the conclusion of the court, at such hearing, no further
than the demand of further proof, if it was not ready to ac
quit.

(b) But, most assuredly, when the ground of condemna
tion was not on the voyage intercepted, but upon conclu
sions of the probability of a future but unascertained voyage
(being a conjectured guilty supplement to an innocent
voyage) the nature of the ground of difficulty precluded a
condemnation unheard as to the probable and conjectural
guilt, which was found, if at all, de hors the primary proof
against the claimants, who had never been admitted, on
their part, to proofs outside the primary proofs. (Story on
Captures, p. 25, ut supra.}

As a matter of most elemental reason and most universal
practice in prize courts, further proofs should have been
allowed the claimants. The absolute condemnation was
contrary to the right and system of the prize jurisdiction.
On this ground the memorialists are entitled to restitution
and indemnity.

IV. The precise form in which the presence of the trivial
amount of contraband (so regarded by the Court) on board
the "Springbok" operated in effecting the condemnation
of the whole cargo is somewhat obscure. Apparently the
substantial consequence given to this portion of the cargo
by the Supreme Court, in their judgment, was as evidence
that that part of the cargo was not to stop permanently in
Nassau, but was meant for an ulterior market. Instead,
however, as would have been the legitimate reasoning on
the subject, of condemning the contraband alone upon this

THE SPRINGBOK CASE 717

evidence of its destination, it is made to inculpate the whole
cargo, not on the ground of contraband contamination (as
belonging to the same owners), but because of inferential
destination for the same market as the contraband, and of
such destination involving a purpose of breaking the block
ade, as the whole coast was under the blockade. But if the
condemnation rests upon the carriage of contraband, and
not upon the intended breach of the blockade, it was contrary
to sound principles to confiscate a great and valuable mass
of innocent cargo from the presence of the dozen swords and
bayonets and those military buttons. Even these trivial
quantities should not themselves have been confiscated,
and certainly they should not have condemned the mass of
inoffensive lading. The eminent German jurist, Dr. Lud-
wig Gessner, says:

It is wrong to seize contraband goods in a neutral vessel when
they are in such small quantities that their inoffensive character
is thereby established. The bona fides is a question to be deter
mined by all the circumstances of the case, among which the
quantity is a very material ingredient. (Droit des Neutres sur
Mer, p. 122; See 3 Phill., 358; 5 Rob., 334.)

V. But for the reasons which we have heretofore stated,
in testing and weighing the importance of the grounds given
by the Supreme Court for this condemnation, its sentence
wholly fails of support in law or in fact. The condemnation
proceeded, no doubt, upon the hypothesis of a breach of
blockade by a continuous voyage planned for the cargo from
the start, commenced by lading on board the "Springbok,"
and in progress towards consummation when intercepted.

(a) Treating, as we must, the doctrine of the "Bermuda"
as expressing the law of "continuous voyage" as held by
the Supreme Court, we find not a particle of evidence to
sustain the condemnation of the "Springbok's" cargo,
within that doctrine. That doctrine requires, an exhibition,
by the proofs, of the vehicle and voyage, whether by means

718 SPEECHES OF WILLIAM MAXWELL EVARTS

of a new bottom or not, which was to consummate the breach
of blockade. In the case of the "Bermuda," the Court
found, on the proofs, such a vehicle and such a voyage.

In the case of the "Springbok," no such vehicle and no
such voyage are exhibited upon the proofs. The service
of the "Gertrude" for the continuance of the carriage of
this cargo, the only project the court entertained as probable,
signally failed. The "Gertrude" was on the other side of
the Atlantic, and her blockade running was independent of,
and subsequent to, the Springbok's commerce.

Thus, upon the law of the "Bermuda," the condemnation
of the "Springbok's" cargo was without any support of
evidence or fact.

(b) It cannot, indeed, be doubted that the doctrines upon
which the Supreme Court based its condemnation of the
cargo of the "Springbok," while they acquitted the ship and
held its voyage wholly lawful, are far looser and more exten
sive than those of the "Bermuda," or any previous case.

This doctrine of "continuous voyage," as applied in the
case of the "Springbok," which permits interception during
the innocent voyage between the neutral ports, and con
demnation of cargo only, upon destination to ultimate market
inferred from the demand for such cargo in the enemy ports,
scatters to the wind all the limitations on belligerent inter
ference with neutral trade which are confessedly to be ob
served when the voyages are direct between the enemy and
the neutral port; it breaks down all the safeguards of the
prize procedure, widens the province of circumstantial or
moral evidence so as to embrace the proof of the corpus
delicti, and, in fact, exposes neutral trade between neutral
ports, which the war develops injuriously to belligerent
interests, to suppression as itself unlawful.

No doubt belligerents chafe under the opportunities which
purely neutral trade between domestic neutral ports may
furnish to advance the carriage of supplies (contraband or

THE SPRINGBOK CASE 719

intended for breach of blockade) to the outposts of the
neutral nation, and thus shorten the transit of supplies
which is exposed, by the law of nations, to the lawful inter
ference of belligerent power. No doubt, in the Civil War
in America, this development of neutral trade between Great
Britain and her transmarine possessions, near to the block
aded rebel coast, was seriously detrimental to the belligerent
interests of the United States.

No doubt, the cruisers and the prize courts were justified
in vigilance and activity to prevent the voyages between
neutral and belligerent ports open to condemnation by the
law of nations, from being dissembled under the cover and
guise of neutral destination up to the line of neutral inter
course, and there run into the blockaded ports.

But, on the other hand, it is equally clear that the cruis
ers and the prize courts are not to be permitted by neutral
nations to do indirectly what would be just ground for
resentment and even war, if done directly. The peace of
the world is not to be secured in that way.

Upon the whole, then, it is respectfully submitted, that
the case of the "Springbok's" cargo, if suffered to remain
unre versed as a rule of the law of nations, gives to belliger
ents a power which, heretofore, they have never dared to
claim, and subjugates the commerce of neutral nations to
belligerent exigencies to an extent never before submitted
to, an extent not tolerable either to their interests or their
pride.

The rule thus established gives to the cruisers and the
prize courts a wider and more uncontrolled sweep of inter
ference with commerce between the proscribed neutral ports
than they possess in respect to commerce between neutral
and belligerent ports.

A paper blockade of the neutral ports, not tolerable to
wards the enemy's ports, capture and sending in for adjudi
cation vessels that cannot by possibility convict or acquit

720 SPEECHES OF WILLIAM MAXWELL EVARTS

themselves on the primary proofs — for they cover only the
present and innocent voyage — condemnation upon intent
of future voyage, not commenced, necessarily upon extran
eous proofs, if at all — all these strange consequences follow
from this new doctrine of belligerent right and neutral sub
serviency.

It is, in nature and substance, an enlargement of the do
main of good prize of war, to the theatre of neutral trade
between neutral ports, upon the fiction of possible contin
uous voyage for cargo, yet to be named and framed.

The future interests of the United States imperatively
demand that the barriers against belligerent pretension
which this case of the "Springbok" has overturned, should
be firmly re-established by the judgment of this Interna
tional Tribunal.

We may well conclude this argument to the justice and
benevolent wisdom of this enlightened Commission, by the
grave counsels of the celebrated French publicist, Count
Portalis, as given by him to the prize courts of France, on
their installation in 1800, in the midst of the fiercest wars:

Courts of law deserve the severest censure when, instead of
proceeding on the principle of international law applied with
equity, and in a manner rather favorable to neutrals, they take
for their point of departure the interest of the belligerents. State
policy may have its plans and mysteries, but on the bench, reason
should ever maintain its empire and its dignity. When arbitrary
pretexts, founded on fear or selfishness, direct the judgment seat,
all is lost. By inspiring terror, you may, for a moment, increase
your strength, but it is by inspiring confidence that you will main
tain it permanently.

In the confident expectation that this Mixed Commission
will make restitution and give indemnity to these memorial
ists for the unwarranted condemnation of the cargo of the
"Springbok," we have occasion further to consider only the
proper pecuniary expression, of that indemnity.

THE SPRINGBOK CASE 721

The amount to be awarded to the Memorialists.

There seems to be no reason to doubt that 'the appraise
ment in the market at Nassau, as given in the memorialists'
proofs, is the reasonable measure of their damages, and that
sum, with interest, should be the measure of the meniorial-
ists' indemnity.

The great value of this cargo, and that the Nassau ap
praisement was not excessive, may well be inferred from the
forced sale by the marshal in a market for which the cargo
was unsuited. This sale produced very nearly $250,000.

That interest, for delay in satisfaction, is a necessary and
component part of indemnity, should be considered as
settled between the United States and Great Britain, at
least, by the award of the Geneva tribunal on the Alabama
claims.

There, after special and full argument by counsel on both
sides, on this very question of interest, ordered by this
tribunal, the award embraced interest to the amount of
some $5,000,000. (See argument and award in the "Ala
bama Claims.")

All which is respectfully submitted.

Newport, R. I., August 18, 1873.

WM. M. EVARTS,
Of Counsel for Claimants.
Respectfully submitted,

J. M. CARLISLE,
H. B. M's Counsel.

NOTE.

In the "statement" which forms a part of this argument,
we have referred to the "Proofs for Defence," introduced
by the United States, and authenticated only by the cer
tificate of the Secretary of War.

As those proofs do not purport to contain any evidence
against the cargo of the "Springbok," in question, or her

48

722 SPEECHES OF WILLIAM MAXWELL EVARTS

voyage, or any prospective voyage for the cargo, we have
not regarded their presence as bearing otherwise than
towards the acquittal, and not the condemnation, of this
cargo. But the memorialists, under the form of the cer
tification adopted by the Secretary of War, were warranted
in supposing that the originate of all papers thus authen
ticated by copies, were on file in the War Department.
Upon the demand of the claimants, however, for the pro
duction of an original paper for inspection and verification,
it appears that the paper demanded is not in the Depart
ment, and, upon further inquiry, that other papers con
tained in these "Proofs for Defence" are not, as originals,
to be found in the Department.

Under these circumstances it is impossible to expect the
claimants to submit to have the trial of this cause before
the Mixed Commission at all prejudiced by "proofs," lack
ing, in substance as well as form, every quality of evidence.

The claimants, for the reasons given here and in the said
"Statement," respectfully submit that said so-called "Proofs
for Defence" should be discarded by the Commissioners
from all consideration.*

W. M. E.

*The appendix to Mr. Evarts's printed argument is omitted here as not essential
to an understanding of the argument itself. The appendix contained the "black
list" of British vessels suspected of attempting breach of blockade, an extract from
a letter addressed by Mr. Seward as Secretary of State to Mr. Gideon Welles, Sec
retary of the Navy, as to the duties of naval officers in the matter of seizure of ves
sels as prize, and a synopsis of the cargo of the " Springbok."

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